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I remember when Trump was touting his "accomplishments" early on he declared that any 5-4 decision on the court will be because of him.  Well good job Donnie.  You done good.

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I sense an incoming Trump tweetstorm -- "WHERE'S MY LOYALTY!?!?!"


"Those who can make you believe absurdities, can make you commit atrocities."-Voltaire

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Right now, a 30 minute conversation is underway at Mar-a-Lago wherein 20 White House staffers are attempting to explain to Trump why he cannot fire a Supreme Court Justice.

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jon81oh[/member] if you actually read Scalia's opinions instead of just taking what your go to liberal source be it ThinkProgress, Moveon.org, Daily Kos or whatever you read, you would probably be in agreement with a lot of his decisions. I know Ginsburg and him were often on the same side of a lot of issues and they were very good friends.

 

Also, the thing about Scalia is that his opinions were always well thought out and principled for the most part. People often knew where he would end up on cases because they understood how he viewed the law. He was hardly a conservative shill who would vote to prop up the GOP or whatever special interest he may be associated with.  Regardless of ideology, he was a very good justice.

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On Scalia:

 

Castle Rock v. Gonzalez was terrible, imo.

Obergfell v. Hodges - on the absolute wrong side of history there

Employment Division v. Smith

Whitman v. American Trucking (expansive view of Congress power to delegate to the executive)

Gonzales v. Raich (expansive view of Congress necessary and proper power)


Very Stable Genius

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^ Being on the right or wrong side of history has nothing to with it. What made him a great justice is that you could follow his rationale in his decisions very easily and understand and see the consistencies where he develops his opinions and writes his decisions. You can plan a course of action with his decisions because you can understand the baseline in the decision. Many of these cases were not the 5-4 majority but rather a wider majority. Scalia did not even write the majority opinion in Raich and therefore, his concurring opinion is non-binding. Whitman was a solid majority with zero dissent

 

For example, Obergfell. I personally have no problem with gay marriage and approve of it, but I found the court's rationale to get to a decision was the wrong one. It was a states right issue imo and thought the court got it wrong for that reason alone.

 

 

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No individual has to rely solely on the democratic process to exercise a fundamental right.

 

The Judiciary is part of the democratic process...

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No individual has to rely solely on the democratic process to exercise a fundamental right.

 

The Judiciary is part of the democratic process...

He’s using Scalia’s language. That gay marriage and abortion shouldn’t be addressed by the court because they’re not mentioned in the constitution. That they should be left to the states and the democratic process.

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Not a decision, but SCOTUS related.

 

http://www.vulture.com/2018/05/rbg-review.html

 

^A review of the new RBG documentary on Justice Ginsburg.

 

A podcast (from Radio Lab's More Perfect) on RBG and the first case that helped propel equal rights for women, Craig v. Boren - https://www.wnycstudios.org/story/sex-appeal/


Very Stable Genius

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https://www.thedailybeast.com/justices-thomas-and-gorsuch-just-hinted-they-would-end-privacy-as-we-know-it

 

“I have serious doubts about the ‘reasonable expectation of privacy’ test,” Justice Thomas began.

 

For more than half a century, the “reasonable expectation of privacy” has been a bedrock of Fourth Amendment law in the United States. It is what keeps us safe from arbitrary government searches in our cars, in schools, and everywhere else outside the home.

 

Gorsuch and Thomas now have doubts about the "reasonable expectation of privacy" test.

 

Yesterday - https://www.cnn.com/2018/05/14/politics/sports-betting-ncaa-supreme-court/index.html

 

The Supreme Court cleared the way on Monday for states to legalize sports betting, striking down a 1992 federal law that had prohibited most states from authorizing sports betting.

 

The 6-3 ruling is a victory for New Jersey and other states who have considered allowing sports gambling as a way to encourage tourism and tax revenue. The NCAA, NFL and NBA had backed the federal prohibition.


Very Stable Genius

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https://abovethelaw.com/2018/05/thomas-and-alito-make-crazy-and-dangerous-arguments-for-no-damn-reason/

 

Today, in a 4th Amendment case, Justice Thomas wrote:

 

The exclusionary rule appears nowhere in the Constitution, postdates the founding by more than a century, and contradicts several longstanding principles of the common law.

 

He doesn't care if evidence was obtained illegally as long as it's relevant and reliable.  Cool.

 

Alito tops him, the lone dissenter:

 

The Fourth Amendment prohibits “unreasonable” searches. What the police did in this case was entirely reasonable…

 

In this case, there is no dispute that the search of the motorcycle was governed by the Fourth Amendment, and therefore whether or not it occurred within the curtilage is not of any direct importance. The question before us is not whether there was a Fourth Amendment search but whether the search was reasonable. And the only possible argument as to why it might not be reasonable concerns the need for a warrant. For nearly a century, however, it has been well established that officers do not need a warrant to search a motor vehicle on public streets so long as they have probable cause… Thus, the issue here is whether there is any good reason why this same rule should not apply when the vehicle is parked in plain view in a driveway just a few feet from the street.

 

Wtf is he talking about?  In the case, Collins v. Virginia, the police lost a motorcyclist in a high speed chase but went to a home they thought he frequently lived at/visited.  There was a motorcycle under a tarp in the driveway.  Without a warrant, they uncovered the tarp, ran the plates, and found it was a stolen motorcycle.

 

And Thomas and Alito are essentially saying that was a reasonable search by the police.


Very Stable Genius

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Supreme Court rules for Colorado baker who wouldn't make same-sex wedding cake

 

https://www.cnbc.com/2018/06/04/supreme-court-rules-in-favor-of-colorado-baker-who-refused-to-make-wedding-cake-for-gay-couple-for-religious-reasons.html

 

The Supreme Court on Monday handed a victory to a Christian baker from Colorado who refused for religious reasons to make a wedding cake for a gay couple.

 

The justices, in a 7-2 decision, faulted the Colorado Civil Rights Commission's handling of the claims brought against Jack Phillips, saying it had showed a hostility to religion.

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^ The SCOTUS decision was very narrow and nuanced.  the larger question of whether merchants can refuse service was left unanswered. I'll wait for one of the lawyers to explain this better but this is my understanding of the decision.

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^ The SCOTUS decision was very narrow and nuanced.  the larger question of whether merchants can refuse service was left unanswered. I'll wait for one of the lawyers to explain this better but this is my understanding of the decision.

 

Yeah the decision is based more on the process than the substance, which is likely why we saw a 7-2 opinion.

 

I'd say this is a narrow victory for the baker, but will be subject to change if Colorado changes its process.

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^ The SCOTUS decision was very narrow and nuanced.  the larger question of whether merchants can refuse service was left unanswered. I'll wait for one of the lawyers to explain this better but this is my understanding of the decision.

 

Yeah the decision is based more on the process than the substance, which is likely why we saw a 7-2 opinion.

 

I'd say this is a narrow victory for the baker, but will be subject to change if Colorado changes its process.

 

If I understand it correctly, SCOTUS determined that this specific baker was treated in a manner that violated his 1st Amendment rights but that they punted on the larger issue.  I think I actually agree with the narrow decision in the baker's favor.

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^ The SCOTUS decision was very narrow and nuanced.  the larger question of whether merchants can refuse service was left unanswered. I'll wait for one of the lawyers to explain this better but this is my understanding of the decision.

 

Yeah the decision is based more on the process than the substance, which is likely why we saw a 7-2 opinion.

 

I'd say this is a narrow victory for the baker, but will be subject to change if Colorado changes its process.

 

If I understand it correctly, SCOTUS determined that this specific baker was treated in a manner that violated his 1st Amendment rights but that they punted on the larger issue.  I think I actually agree with the narrow decision in the baker's favor.

 

There was a little more bite to it than that, though. SCOTUS noted that the procedure, in general, was too hostile towards religion and had to be reworked.

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^ The SCOTUS decision was very narrow and nuanced.  the larger question of whether merchants can refuse service was left unanswered. I'll wait for one of the lawyers to explain this better but this is my understanding of the decision.

 

Yeah the decision is based more on the process than the substance, which is likely why we saw a 7-2 opinion.

 

I'd say this is a narrow victory for the baker, but will be subject to change if Colorado changes its process.

 

If I understand it correctly, SCOTUS determined that this specific baker was treated in a manner that violated his 1st Amendment rights but that they punted on the larger issue.  I think I actually agree with the narrow decision in the baker's favor.

 

There was a little more bite to it than that, though. SCOTUS noted that the procedure, in general, was too hostile towards religion and had to be reworked.

 

I assume that this ruling requires Colorado to rewrite their law/process?

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^Yes, but it is not certain whether the baker in question will be free to go or will be subject to the new process.

 

So then the new law won't be up for scrutiny again unless some sues?  Is that how it would work?

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^Short answer is that the baker wins for now, because the order against him was set aside because he didn't get a "neutral decisionmaker who would give full and fair consideration to his religious objection."

 

So yes, they will have to rework their processes some, or educate their decision makers to show more impartiality or importance to religious beliefs. I don't know if that is completely possible as bias will always intervene in these types of cases, but they have to show a more neutral policy on its surface. 

 

This will likely be back sooner than we think. There are going to be more people pushing the limits of this decision on both sides seeking clarity. 

 

I thought that Gorsuch's line of questioning comparing the custom cake to a "work of art" was a reasonable standard to go by with the cake artist of a custom cake creating a work of art vs a production cake that someone may purchase at Costco.  This would allow a clear definition of what can apply in commerce and allow wedding photographers and cake makers who choose an exemption in certain areas just like a painter who may be hired to paint a portrait of someone they find distasteful.

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^Yes, but it is not certain whether the baker in question will be free to go or will be subject to the new process.

 

So then the new law won't be up for scrutiny again unless some sues?  Is that how it would work?

 

There will likely be a new case where a baker or photographer or even pizza shop refuses to provide service to a gay customer. It will be very fact specific. In practicality, these cases are not brought by the individual but rather there are public interest groups on both sides who scour the dockets for cases that they could have hope to advance to the Supreme Court for clarity on such rulings. It is rare you have a lone wolf like a Michael Neubauer who can have the funds and ability to advance such a case on their own. Therefore, the case that makes it back will have a specific fact pattern that matches the issue they are looking to solve. In other words, the next baker that gets into trouble for failing to bake a wedding cake for a gay couple will not necessarily see the court unless the agency supporting the cause likes the fact pattern.

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^ I actually think I agree with the artist standard and it makes sense.  However, there could be a gray area as to what is artistic or not. In the case of a photographer or even a custom cake maker it seems clear.  But what about caterers?  I am just thinking out loud here. 

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^ caterers could be in that gray area, I would tend to think most caterers are mass production events, however, a chef would probably fall under the pastry maker definition of an artist. So they caterer would be required to cater the event with their pigs in a blanket and chicken wings but they likely would not have to do a fancy artistic spread in their presentation of the food if they had a religious objection.

 

In this regard, Phillips's bakery still has to bake the gay couple a wedding cake if they choose to have him do it at his bakery, but he would be able to let the couple know he will not create the cake himself or use his own artistic design to do it. 

 

I think there will be gray areas to everything, but the artist exception creates some clarity

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^ caterers could be in that gray area, I would tend to think most caterers are mass production events, however, a chef would probably fall under the pastry maker definition of an artist. So they caterer would be required to cater the event with their pigs in a blanket and chicken wings but they likely would not have to do a fancy artistic spread in their presentation of the food if they had a religious objection.

 

In this regard, Phillips's bakery still has to bake the gay couple a wedding cake if they choose to have him do it at his bakery, but he would be able to let the couple know he will not create the cake himself or use his own artistic design to do it. 

 

I think there will be gray areas to everything, but the artist exception creates some clarity

 

I actually agree with you.  I think about it like a singer/band.  They should't have to perform somewhere if they don't want to.  but on the other hand if they are putting on a public show, they can't restrict who buys the tickets.

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One of the few cases I ever tried in court was with a wedding photographer who was stiffed on the bill but was still sued by the couple because they were not happy with the way their photos turned out and wanted a bunch of additional re-touches without paying the bill. Now, this had nothing to do with the gay rights issue, but I felt for the photographer who became exasperated working with a client who was requesting things outside of their package and not being paid for his efforts from the beginning.

 

It was a relationship that did not get off to a good start from the beginning and deteriorated further during the wedding process.

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For those interested in the full original source, straight from the horse's (or nine horses') mouth, it's here:

 

https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf

 

7-2 decision on the process being unfair under Free Exercise (one of the components of First Amendment religious freedom) grounds due to the government showing hostility to the baker's religious beliefs.  Silent on the free speech issue.

 

2 of those 7 (Kagan and Breyer) concurred and said the process could have been fair but wasn't.

 

2 of those 7 (Gorsuch and Alito) concurred but said this process was hostile to religion beyond saving (i.e., responding to Kagan and Breyer rather than actually expounding more on the majority opinion).

 

2 of those 7 (Thomas and Gorsuch) concurred and also would have reached the free speech issue that everyone else punted on, and resolved it in the baker's favor.  According to Thomas, the rest of the Court punted on the issue because the underlying facts (i.e., what expression or expressive conduct was being compelled) was never fully established below.  For Thomas and Gorsuch, that didn't matter.  They say it's because the Colorado appeals court did resolve that issue and so they take that issue as established in the record.  The more accurate reading is probably that Thomas and Gorsuch believe that even the most charitable possible resolution of the compelled-speech outcome, i.e., that the only thing the Colorado CRC would have done is make the baker bake a generic cake and provide it to the wedding, would still be sufficient compulsion of speech to warrant First Amendment defense.

 

The 2 dissenters (Ginsburg and Sotomayor) would have forced the baker to bake the cake.

 

Lots to digest here and I have to believe this is coming back for more because it left a lot of wiggle room in both directions, which people on both sides are going to be very motivated to test.  Despite the 7-2 ruling, I would definitely not rest easy if I were a creative professional with sincerely held traditional Christian beliefs on marriage and family; you may well be singled out to be the next test case, and that one might not reach the Supreme Court (and, of course, if the SCOTUS hadn't taken this case, every level of the civil machinery would have ruled against the devout Christian baker).

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Of course Cleveland.com runs with a totally inaccurate headline and article:

 

U.S. Supreme Court says Colorado baker doesn't have to make gay wedding cake - read the decision here

 

https://www.cleveland.com/metro/index.ssf/2018/06/us_supreme_court_says_colorado.html#incart_m-rpt-1

 

It's funny they say "read the decision here" but apparently the reporter didn't read the decision.

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^ I actually think I agree with the artist standard and it makes sense.  However, there could be a gray area as to what is artistic or not. In the case of a photographer or even a custom cake maker it seems clear.  But what about caterers?  I am just thinking out loud here. 

 

Kennedy himself started in the other direction, starting at the top, and worked his way down into the gray area, and then left it open.  The one clear example he gave was the officiant, and how under no circumstances could the state demand that a priest or pastor officiate a gay wedding that his/her faith didn't recognize.

 

The issue with the photographer argument is that that would be much more appropriately a free speech issue, and the full Court chose not to analyze that issue in depth.  Kennedy had some language in the majority opinion that was less than sympathetic to that argument, but also vague, and Gorsuch joined both the majority opinion and Thomas' concurrence in part that would have reached it and resolved the free speech issue in the baker's favor, so Gorsuch apparently didn't read Kennedy as being particularly hostile to that argument.  But he and Thomas were not able to get any justices beyond themselves to actually reach that issue.  Needless to say, that means that both sides are going to continue to litigate it exactly as they had been doing before Masterpiece and during the six years that this case has been working its way through the lower courts.

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Is it fairly common for SCOTUS to sort of dance around a major topic and punt the issue down the road? 

 

Yes, the Court does not like to create standards and new law when they have a choice in the matter. They look to Congress to handle this job and then interpret where necessary. They treat each case as its own merits instead of trying to use it to create a national precedent on an issue because all fact patterns differ and each case is unique.  The Court is much more comfortable looking to Congress to pass a law (i.e. nobody has to serve gay customers, or you cant discriminate on any grounds whatsoever even for religious purposes) and then review the law and chip away at the areas where it overreaches. In this case, there was not federal statutes in this arena, only guidance from  state governments on the matter.

 

That is why you see cases like this. Often, behind closed doors you would see maybe a 5-4 split on the issue on various legal grounds but the justices do their best to work together to get an opinion that a bigger majority can sign off on. It is why you don't get clarity in such a case but you get a decision with more than a 5-4 authority.

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https://abovethelaw.com/2018/06/in-masterpiece-cake-anthony-kennedy-uses-liberal-contempt-for-bigotry-to-authorize-bigotry/

 

Today, the Supreme Court affirmed the cry of white fragility. It ruled, 7-2, that the state’s contempt for religious zealotry was such an affront to the free exercise of religion that it was the bigger problem than a bigot’s contempt for same-sex couples. Hold your tiki torches high, Anthony Kennedy thinks it’s unconstitutional for the state to hurt your feelings.

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