SCOTAL Itch

[ChuckF]

I love the little flourish that the dissent (which is nutty but not relatively nutty) relates to the method and ceremony of the shitcanning, and not the rich deservedness of the shitcanning.

[Stephen Maturin]

Alito and Thomas have a point. The notion that a court can refuse to let a litigant file a lawsuit that's within the court's original jurisdiction is more than a little silly, but granting the motion for leave to file while "grant[ing] [no] other relief" gets us to the same station on a different lulztrain. I love a good 9-0 decision, esp. since it includes Trump appointees Neil Gorsuch, Rapey Alcoholic Manbaby, and Amy Cornholio Bababooey.

[Kamilah Hauptmann]

For us laymen:

So, in basic English, 7-2 against ability to file the case, but 9-0 against granting any sort of injunctions or doing anything pre-decision, right?

— Joey (for #DCstatehood) (@JoeySchmittPhD) December 11, 2020

Seem about right?

[ChuckF]

Originally Posted by Stephen Maturin

Alito and Thomas have a point. The notion that a court can refuse to let a litigant file a lawsuit that's within the court's original jurisdiction is more than a little silly, but granting the motion for leave to file while "grant[ing] [no] other relief" gets us to the same station on a different lulztrain.

On that point: like most sane people, I know fuck all about original jurisdiction, but now I want to fight about this! Does the fact that SCOTUS has established rules (like every other lower court) to manage its docket, requiring a "a motion for leave to file, and may be accompanied by a brief in support of the motion" for actions in its original jurisdiction actually meaningfully deprive litigants of access to relief for justiciable disputes? For example - is denying leave to file on the basis of a brief really that different from any old trial court dismissing sua sponte for want of subject matter jurisdiction, such as lack of standing, à la 12(b)(1)? SCOTUS just frontloads it with a rule.

[JoeP]

Originally Posted by Stephen Maturin

the SCOTUS lawsuit Texas v. Pennsylvania went to be with Jesus.

You mean, argued about for 2000 years?

[Kamilah Hauptmann]

Originally Posted by JoeP

You mean, argued about for 2000 years?

Ffff’n felt like it.

[beyelzu]

Originally Posted by Crumb

This is rich coming from Texas.

Yeah, one of the reasons the lawsuit is absurd is that liberal states could sue the New Jim Crow states for their disenfranchisement ways using the exact same rationale.

[beyelzu]

I remain appalled that attorneys general from 17 states agreed with this shit.

They accuse the left of being politically correct, and yeah, we know that’s projection. But republicans are engaged in literal groupthink with a disregard for reality.

[Stephen Maturin]

Originally Posted by ChuckF

Does the fact that SCOTUS has established rules (like every other lower court) to manage its docket, requiring a "a motion for leave to file, and may be accompanied by a brief in support of the motion" for actions in its original jurisdiction actually meaningfully deprive litigants of access to relief for justiciable disputes?

In most cases, the answer to that will be a resounding no. And, before we go any further, we should note that Texas v. Pennsylvania is an absolutely atrocious vehicle for reexamining the propriety of SCOTUS treating its original jurisdiction as discretionary. In substance, the case achieves Lessans v. Carter levels of frivolousness. Indeed, it's actually much worse. Ol' Seymour was an aluminum siding salesman who believed, despite mountains of evidence to the contrary, that he knew everything about everything. Ken Paxton is a lawyer/state attorney general who had actual knowledge that his filings were, substantively and procedurally, steaming, stinking piles of shit when he submitted them. Dude should never, ever hold a license to practice law anywhere in the U.S. I'd have no problem with him doing pro bono landlord-tenant litigation in Pottsylvania, but that's about it.

Personally, I think it's a good idea for SCOTUS to have discretion in exercising its original jurisdiction. The Court today isn't what it was in 1789. Today's Court is set up to act entirely as an appellate tribunal. I can't decide whether watching these schlubs attempt to try a case would be more lulzy or more sad. Moreover, the level of political grandstanding that currently exists - and will only get worse between now and the time the republic dries up and blows away - counsels heavily in favor in letting SCOTUS refuse to let states file original actions in the first place.

Still, the jurisdiction-conferring provisions of the Constitution aren't self-executing, and applicable statutes describe SCOTUS's original jurisdiction in mandatory terms, while describing its appellate jurisdiction in discretionary terms. As to state v. state cases, the applicable statute provides that SCOTUS's jurisdiction is both original and exclusive, so there's no other federal forum that can adjudicate a state's lawsuit against another state.

Of course, enforcing the statutes as written would open the door to both reasonably legit cases like Wyoming v. Oklahoma, 502 U.S. 437 (1992) and turds like Texas v. Pennsylvania and that abomination a few years back in which Nebraska tried to sue Colorado for partially decriminalizing weed. Fed. R. Civ. P. 12 authorizes immediate dumping of horseshit cases, and the litigants get an explanation of why the case got shitcanned. (That order in TX v. PA is highly unusual because is states a basis for denying leave to file a complaint. Typically, all you get is "Motion denied.")

But hey, it's just academic. SCOTUS has been treating the exercise of its original jurisdiction as discretionary for a long-ass time. Congress knows about it and, as evidenced by its inaction, gives zero fucks.

Originally Posted by ChuckF

For example - is denying leave to file on the basis of a brief really that different from any old trial court dismissing sua sponte for want of subject matter jurisdiction, such as lack of standing, à la 12(b)(1)? SCOTUS just frontloads it with a rule.

Certainly not in this dogshit case. Texas got a full, fair opportunity to be heard in its motion and supporting brief, and actually got the last word in the form of a reply brief it filed yesterday.

The reference to "any old trial court" brought to mind an absolute prick who serves as a judge on the Denver District Court. District courts are the courts of general jurisdiction in lolorado, and are generally stuck deciding whatever case a civil litigant chooses to file. The prick judge in question loathes personal injury cases. I have no trouble picturing him saying, "If I have to preside over one more case where a dumbass slipped and fell on ice in someone else's driveway during winter, Imma choke a bitch." I also have no trouble picturing him trying to get his colleagues to adopt a local rule requiring court permission to file premises liability cases. This paragraph serves no real purpose other than announcing that I believe the judge in question is a total knob.

[Stephen Maturin]

Originally Posted by beyelzu

I remain appalled that attorneys general from 17 states agreed with this shit.

Two of our Members of Congress, Doug Lamborn and KBen BKuck, signed onto an amicus brief in support of Texas's lawsuit. Needless to say, we are all busting our buttons with pride over that shit.

[beyelzu]

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan said they would have left California's restrictions in place. In a stinging dissent for the three, Kagan noted that none of the justices is a scientist, and she accused the majority of substituting its own judgment for the epidemiologists and elected officials who are "desperately trying to slow the spread of a deadly disease." Kagan disputed the notion that the state is somehow treating religious institutions worse than secular entities. The only secular conduct the state treats better, she said, "is the kind that its experts have found does not imperil" the battle against the pandemic.

and

"I cannot imagine that any of us [on the court] has delved into the scientific research on how COVID spreads, or studied the strategies for containing it," she said. "So it is alarming that the court second guesses the judgments of expert officials and displaces their conclusions with its own. ... In the worst public health crisis in a century, this foray into armchair epidemiology cannot end well."

Supreme Court Rules Against California Ban On In-Person Worship : NPR

I strongly agree with the Honorable Justice Kagan.

[beyelzu]

Arkansas has passed a new law banning nearly all abortions in the state, a sweeping measure that supporters hope will force the US supreme court to revisit Roe v Wade but opponents vow to block before it takes effect later this year.

Arkansas is looking to get in on that Gilead ground floor.

https://www.theguardian.com/us-news/...urt-roe-v-wade

Several state legislatures have enacted such bans knowing that the court is now packed with ideologues who don't support Roe.

[Kamilah Hauptmann]

FBI facing allegation that its 2018 background check of Brett Kavanaugh was ‘fake’ | Brett Kavanaugh | The Guardian

[beyelzu]

In her dissent, joined by Justices Sonia Sotomayor and Stephen Breyer, Kagan wrote, "The First Amendment requires that a State treat religious conduct as well as the State treats comparable secular conduct. Sometimes finding the right secular analogue may raise hard questions. But not today. California limits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike."
Kagan noted that lower court judges found that when people gather in social settings, their interactions are likely to be longer than in a commercial setting and involve prolonged conversations. Private homes are likely to be less ventilated, she noted, with less mask-wearing.

the current court rules against science again.

Supreme Court again blocks California Covid restriction on religious activities - CNNPolitics

[specious_reasons]

It looks like Biden, even though he seems opposed to it, may be considering increasing the size of the court. I'm guessing it depends how much the Supremes get in his way.

Biden unveils commission to study possible expansion of Supreme Court - The Washington Post

President Joe Biden created a bipartisan commission Friday to study structural changes to the Supreme Court, giving the group 180 days to produce a report on a range of thorny topics including court expansion and term limits.

The commission, composed of 36 legal scholars, former federal judges and practicing lawyers, fulfills Biden’s campaign promise to establish such a group after activists pushed him to back expanding the court following Republicans’ rush to confirm Justice Amy Coney Barrett shortly before last year’s election. Biden has said he is “not a fan” of adding seats to the Supreme Court, but he has declined to say whether he supports any other changes to its structure.

[Kamilah Hauptmann]

13 circuit courts, right?

[beyelzu]

Originally Posted by beyelzu

the current court rules against science again.

Supreme Court again blocks California Covid restriction on religious activities - CNNPolitics

So apparently this ruling was worse than I thought.

Originally Posted by Oleske Law Professor

In the very beginning, the court said its prior decisions had “made the following points clear.” It then laid out the “most favored nation” theory of religious exemptions. The principal authority cited is the Roman Catholic Diocese v. Cuomo decision from this past fall—in which the court did not adopt that theory! Instead, the court said that New York had singled out religion for disfavored treatment, which would be consistent with Smith. It was only in separate opinions that various justices talked about “most favored nation” theory explicitly—the same justices who were talking about it in dissents over the summer before Justice Amy Coney Barrett had joined the court.

So the precedent they cited wasn’t.

They also used the shadow docket for it

Originally Posted by Vladek another law professor

As the Supreme Court has said for decades, its authority to issue that form of relief is very limited. There’s a very widely cited in-chambers opinion by Justice Antonin Scalia from 1986 where he says the court is only supposed to issue such relief “sparingly, and only in the most critical and exigent circumstances,” where “the legal rights at issue are indisputably clear.” It’s the “indisputably clear” part that makes what Jim said so important. Everyone understands that the court made new law on Friday, that the court changed the scope and meaning and applicability of the free exercise clause. Folks are going to disagree about whether or not this new approach is a good one. My point is, this is not something the court is allowed to do in a shadow docket ruling like this. Its own precedents preclude it from making new law in this context because, by definition, a newly minted right cannot have been “indisputably clear.”

The Supreme Court radically redefined religious liberty in the COVID case Tandon v. Newsom.

[beyelzu]

CONGRESSIONAL DEMOCRATS PLAN to unveil legislation expanding the size of the Supreme Court on Thursday, according to three congressional sources familiar with the closely held measure.

The bill would add four seats to the high court, bringing the total to 13 from the current nine. The bill is led by House Judiciary Committee Chair Jerry Nadler, Subcommittee chair Hank Johnson, and freshman Rep. Mondaire Jones. In the Senate, the bill is being championed by Ed Markey of Massachusetts.

House and Senate Democrats Plan Bill to Add Four Justices to Supreme Court

[JoeP]

So, bets? I can't see this actually happening. But it's a good conversation for America to have. Some actual fight from the "left".

[beyelzu]

I don’t think it can happen until after midterms and if Dems pick up a seat or two then would would buck the general trend of midterms.

But I’m heartened that this is getting a real push. I think the conservative ideologue justices will continue to push their illiberal agenda and we will have to do this eventually.

[Crumb]

This can't happen without getting rid of the filibuster unless the Dems get 60 in the senate, right?

[JoeP]

Ooh, they should work on that too.

[beyelzu]

Originally Posted by Crumb

This can't happen without getting rid of the filibuster unless the Dems get 60 in the senate, right?

That is correct. Filibuster has to be be neutered for this to happen.

[ChuckF]

[Kamilah Hauptmann]

Originally Posted by ChuckF

Only in America: Democracy and Nuclear mean the same thing.