SCOTUS 2022-2023 Term

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December has nine cases that include 303 Creative and Moore v. Harper. Assuming the latter isn't dismissed as moot, each Justice should be writing once. Roberts, Kagan, Gorsuch, and Kavanaugh have yet to write a majority opinion for that sitting.

So dumb question, what happens if a justice just always dissents from the majority? They just don't get an opportunity to write for the majority?

Yeah, that's what would happen (and I think historically this happened some terms to ultra-right-wing judge James McReynolds, who was on the Court from 1914-1941), but this is unlikely to come up in the modern day. An overwhelming majority of cases are either 9-0 or 8-1, even in the most controversial terms. Judges who are in the minority more often (nowadays, the liberal three) would just get assigned more of the non-controversial opinions.

On the current court, all the judges are in the majority on most cases -- Sotomayor is the most frequent dissenter but she still agrees with 58% of the opinions. For someone not to have enough cases, they'd have to agree with the court on less than 1/9 -- 11% -- of cases; that's kind of insane and just doesn't reflect how the institution works.

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More interestingly, this almost seems to be a ruling about how to write legislation: the argument of the majority is that when the wording is unclear it should be interpreted to minimize federal power, or intrusion onto the rights of property owners (the latter of which is longstanding practice), and while 'adjacent' has some meaning beyond 'adjoining', that meaning is vague, and therefore in practice any particular wetland which is not adjoining can't be said to be adjacent. (There is a complicated argument that the exact wording used in the law implies that 'adjacent wetlands' are meant to already be included in 'waters of the United States', but this is generally contrary to administrative practice and I find the prominence given this argument odd, as if it were necessary for coalition-forming.)

Second, the EPA’s interpretation gives rise to serious vagueness concerns in light of the CWA’s criminal penalties. Due process requires Congress to define penal statutes “‘with sufficient definiteness that ordinary people can understand what conduct is prohibited’” and “‘in a manner that does not encourage arbitrary and discriminatory enforcement.’” McDonnell v. United States, 579 U. S. 550, 576 (2016) (quoting Skilling v. United States, 561 U. S. 358, 402–403 (2010)). Yet the meaning of “waters of the United States” under the EPA’s interpretation remains “hopelessly indeterminate.” Sackett, 566 U. S., at 133 (ALITO, J., concurring); accord, Hawkes Co., 578 U. S., at 602 (opinion of Kennedy, J.).

The EPA contends that the only thing preventing it from interpreting “waters of the United States” to “conceivably cover literally every body of water in the country” is the significant-nexus test...

This is kind of obviously the meat of the decision and the reason that the majority chose to enact it.

Today in a 5-4 the ‘Orginalsits’ and ‘Textualists’ of the Supreme Court have decided that the plain text word adjacent, explicitly inserted into the statue to clarify the standard was ‘adjacent’ and no say ‘adjoining’ actually means ‘adjoining’.

I think the decision has more to do with the unacceptable vagueness of the 'adjacent' standard rather than a dispute about its meaning; five Justices chose to strike a single word under the Due Process Clause rather than take the law as written. I agree that Alito's opinion here tries to act as though it were a narrower decision than that and merely glances at due process, but the outcome makes much more sense as a due process case than as being about statutory interpretation.

Kavanaugh argues that the Court should've adopted the usual interpretation of 'adjacent' that's been used since the 1970s, but (...while I have not heard the oral argument, so I'm speculating), it seems judging by Alito's opinion like the EPA asked for significantly more here by arguing for Kennedy's significant-nexus test (which Kavanaugh himself would've narrowed), and probably thereby lost the case by asking for too much.

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https://twitter.com/steve_vladeck/status/1669353159683366916
https://twitter.com/reichlinmelnick/status/1669354566406782979

Given past recent history in tribal cases, I'm surprised Gorsuch didn't have the majority opinion here.

It appears that he wanted to go further than the majority.

He did. He would have upheld the ICWA on the merits on everything; ACB upheld on the merits on some arguments and tossed the rest of the anti-ICWA arguments on standing.

I agree that Kav is the likeliest fifth vote to toss the student loans case on standing because in two prominent cases that have just come down, Brackeen and the VRA one, he wrote concurrences whining about whoever was arguing for the "right-wing" position not bringing up what he thought were the correct arguments (which he TOTALLY would have found for, HONEST!). It seems possible he does so again in Biden v. Nebraska.

ACB, Roberts, and Kagan are the three justices who joined the Brackeen majority but not either of the concurrences.

At least on the VRA stuff, we're going to learn just how HONEST Kavanaugh was in the extremely near future; there's another case with an extremely similar fact-pattern -- NAACP v. McMaster -- over whether South Carolina's districts are also a violation of the VRA. That case is going to be heard by the Supreme Court next term, and it's actually sort of conspicuous that it was not consolidated with the Alabama proceedings. Obviously South Carolina's lawyers are going to make the arguments Kavanaugh asked for.

Kavanaugh's exact position is possible to read in two ways, though, one very moderate and one Thomas-level hyper-conservative. Kavanaugh complained that Alabama had not brought up the possibility that, since the VRA was first permitted under the remedial/preventative authority of the Fourteenth and Fifteenth Amendments, it cannot remain constitutional forever:

JUSTICE THOMAS notes, however, that even if Congress in 1982 could constitutionally authorize race-based redistricting under §2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future. See post, at 44–45 (dissenting opinion). But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.

The shout-out to Thomas reads like he would strike down the VRA if only someone would make this argument. (And someone making this argument isn't some hypothetical scenario; someone will be making it next term. Also, Kavanaugh thinks the Court should grant certiorari in way more cases, and work way harder, than it currently does; it feels sort of strange to accuse him of coyly ducking from the real issues when he thinks the Court should hear way more cases. It rather seems like he actually wants certain broadly-extendable principles applied to a variety of cases.)

(The other way to read what Kavanaugh said is that he might want to channel O'Connor in Grutter and put a rough date on when the VRA will be unconstitutional...but kick the can down the road so that he doesn't personally need to take responsibility. O'Connor famously wrote in 2003 that affirmative action was still permissible at that point, but would probably no longer be constitutional by 2028.)

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I would think it's almost certainly the latter approach, or else he would have just taken this opportunity (or, I believe, one of several others in recent years) to rule that all/most of the VRA is unconstitutional.  If he thinks the time limit has already expired, why make Alabama jump through hoops just to strike the whole thing down next year or the year after?  He could have been the 5th vote for any interpretation of the relevant VRA language he wanted right now.  Alito and Thomas are both in their 70's and could get sick at any time while he waits. 

The VRA's already going on 60 years old and Kavanaugh just voted to enforce it as written.  If he turns around and puts a time limit on it now, I think it would intentionally be something beyond his likely tenure on the court.  Check back in 2065/82?

Yeah, I agree that this makes more sense. (If he's channeling O'Connor then it would be 25 years from a case next year, so 2049, but maybe he'll write a different number for some reason).

The thing that gives me pause is both the explicit citation of Thomas, as if Thomas's logic were correct but is simply inappropriate to consider at the moment, and just the broader political climate where it's likely that affirmative action is ruled unconstitutional this term, and it might be prudent to try to avoid other controversial decisions on race, and make the court look more like it's 'calling balls and strikes'.

(But my guess is that the South Carolina decision will end up just reaching the merits on Gingles, go one direction or another, but then also say "all of this expires in a few decades by the way".)

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It was never going to be Thomas on affirmative action; Thomas's position is that using race to create government policy is only acceptable in order to prevent imminent violence (from his concurrence in Fisher II):

I explained that “only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a ‘pressing public necessity’ ” sufficient to satisfy strict scrutiny. Id., at 353. Cf. Lee v. Washington, 390 U. S. 333, 334 (1968) (Black, J., concurring) (protecting prisoners from violence might justify narrowly tailored discrimination); J. A. Croson, supra, at 521 (Scalia, J., concurring in judgment) (“At least where state or local action is at issue, only a social emergency rising to the level of imminent danger to life and limb . . . can justify [racial discrimination]”). I adhere to that view today. As should be obvious, there is nothing “pressing” or “necessary” about obtaining whatever educational benefits may flow from racial diversity.

E.g., Thomas would hold that government efforts to promote diversity at all, as a public policy goal, are in violation of the Equal Protection Clause. (It would open the door for -- or really, encourage -- states to criminalize such efforts.) I think Gorsuch would might agree (it would fit with his celebrated decision in Bostock, for example, of preferring the meanings of words over the meanings of the people who wrote them), but I don't know that anyone else would, and Roberts and Kavanaugh would probably be very averse to this.

I suspect Alito has affirmative action with a maximalist ruling that reads like a Chris Rufo speech and prohibits practically any DEI inititiatives in universities accepting federal funds: 1. probably some internal horse trading with Roberts and Kav over Milligan and 2.  I wonder if Jackson being recused here gives him  somewhat more latitude, but the circuit court upheld the status quo, so maybe not? 

Alito would be kind of an odd one since no one really associates him with affirmative action, but you're right that the math is getting to the point where he makes the most sense, and he actually did write the consensus (non-Thomas) conservative dissent in Fisher II. In that decision Alito advocated for very difficult standards for diversity programs in education, but did not advocate banning them, much less implying that diversity is an unconstitutional goal altogether. (19 Republican states, led by Oklahoma, have filed an amicus brief which also holds basically this position). Rufo is associated with CSPI in Texas, who have been very active promoting the latter position; I think we are a ways removed from that.

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Peak "SCOTUS 2022-2023 Term" would be the Court throwing out the student loan case on standing grounds, but Kavanaugh writing a concurrence in which he explains exactly how the case could've been brought before the Court correctly, and then that case being brought next summer.

Peak "MOGOP is a bunch of dumbasses" would be a requirement that MOHELA bring the case rather than the state of Missouri, leading to the Missouri GOP trying to appoint loyalists to random MOHELA positions and then failing because this is exactly the sort of inside baseball they're still comically bad at.

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Peak "SCOTUS 2022-2023 Term" would be the Court throwing out the student loan case on standing grounds, but Kavanaugh writing a concurrence in which he explains exactly how the case could've been brought before the Court correctly, and then that case being brought next summer.

Peak "MOGOP is a bunch of dumbasses" would be a requirement that MOHELA bring the case rather than the state of Missouri, leading to the Missouri GOP trying to appoint loyalists to random MOHELA positions and then failing because this is exactly the sort of inside baseball they're still comically bad at.

In oral arguments, SG Prelogar already said they wouldn't have contested standing if MOHELA was there in its own name. You don't need the Court to say that, although they certainly could.

OK, true "peak SCOTUS 2022-2023 Term" would be Kavanaugh as the decisive vote to strike down student loan forgiveness, but explaining in a concurrence exactly which arguments Prelogar could've made to get the case thrown out on standing grounds.

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What are we going to do? Let society collapse every Sunday over "religion". lmao. Glad I am NOT a Mormon anymore.

Presumably companies will simply pay people more to work on Sundays, if you can always take the day off for sincere religious conviction. (Also, while in theory this shouldn't make it harder for religious people to get jobs at all, in practice it probably will to some extent, just because pursuing a civil rights claim is expensive and difficult in the real world.)

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Roberts has affirmative action. It's struck down on 14th Amendment grounds, 6-3.

Key paragraph:

(f) Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice.

Thomas, Gorsuch, and Kavanaugh concur separately. Dissents by both Jackson and Sotomayor which all three liberals join.

(BRB, gonna go read the Kavanaugh concurrence to see if he tells liberals how they could've won, if only they made slightly different arguments. EDIT: It is not; it is a direct response to the Sotomayor dissent which explains how the majority is consistent with Grutter, and does not overturn it, and the dissent is inconsistent with Grutter.)

EDIT: Jackson apparently dissented despite recusing which is, uh, different, I guess. Depending on the precise meaning of words, you could say this decision is 6-2 rather than 6-3.

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So, uh, is it just me or does the Roberts opinion basically say that, while colleges cannot use race, they can continue to use metrics that are correlated with race, and a particular metric he might approve of is rewarding 'unique skills' which some particular race is likelier to have than another?

That feels like a recipe for a generation of amazing Asian-American soul food chefs to come into existence. More generally, I think if this decision is both taken seriously and there's no large-scale crackdown on woke institutional decision-making, I think we're going to see some amazing examples of Goodhart's Law in action.

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Wow, the made-up case is even more made-up? What a shock.

SCOTUS cannot in good conscience release its decision with this new information. Is there a mechanism for them to say "whoa hold on we gotta re-argue this"?

Legitimately, no, appellate courts like SCOTUS may not take new evidence that was not introduced at the level of the lower court. They may only review legal procedures. After-discovered evidence can be used to file a motion for a new trial, particularly in criminal cases, but you would start from the bottom all over again. You cannot submit after-discovered evidence to SCOTUS (or for that matter to any of the circuit courts).

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So with all this talk of individual achievement… did they ban “Legacy” considerations for college admissions too?

No, but this case didn't challenge the constitutionality of legacy admissions. Colleges that receive federal funding are prohibited from taking into account 'race, color, or national origin', as per Title VI (but interestingly this does not extend to 'religion' or 'sex', which are brought up in Title VII). I think if you take kind of a Gorsuch-ian view to the meaning of the word 'race', you can extend it to mean 'family origin' -- families are micro-races in a certain sense -- but I don't think its authors intended it to be read that way, or that it was the most logical way for that to be read. (There is maybe a Due Process or Equal Protection challenge somewhere, though.)

If you are blind to race, you are blind to racism.

No. The solution to racism is to make everyone blind to race, and then no one can be racist. We should look into safe applications of those chemicals that cause colorblindness when you get them into your eyes; eventually, we can be safe from the scourge of racism forever.

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So, uh, is it just me or does the Roberts opinion basically say that, while colleges cannot use race, they can continue to use metrics that are correlated with race, and a particular metric he might approve of is rewarding 'unique skills' which some particular race is likelier to have than another?

That feels like a recipe for a generation of amazing Asian-American soul food chefs to come into existence. More generally, I think if this decision is both taken seriously and there's no large-scale crackdown on woke institutional decision-making, I think we're going to see some amazing examples of Goodhart's Law in action.

This is a Roberts opiniof

https://twitter.com/EndingBigly/status/1674424655778807814

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An interesting final affirmative action note linking the issue to broader politics: there has probably theoretically been an anti-AA majority on the Court ever since Roberts replaced O'Connor, so 2005. (Kennedy, who was anti-AA historically and personally dissented in Grutter, did join the pro-AA plurality in Fisher, but this was almost certainly to avoid a situation where an explosive decision was made through plurality, since it happened to be the case that that case reached the court during the Scalia vacancy period). But a mixture of certain Justices not necessarily being very enthusiastic about striking down AA (clearly Kennedy and Kavanaugh both dislike the issue) and bad luck for conservatives with when cases were heard (Fisher would obviously have won a year earlier or later) meant that it took 18 full years before the obvious thing was done.

I wonder how much this generalizes.

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Between the awful 303 Creative and student loan decisions… it’s clear that this Court has no legitimacy. The plaintiffs had no standing. This is a rogue court.

The student loan decisions are, like, overwhelmingly popular. I don't think the Supreme Court's legitimacy comes from always doing what the public wants -- in that case it could never have legalized interracial marriage -- but these decisions are both pretty obviously on the right side of a huge majority of public opinion if you take even a cursory look at it.

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Between the awful 303 Creative and student loan decisions… it’s clear that this Court has no legitimacy. The plaintiffs had no standing. This is a rogue court.

The student loan decisions are, like, overwhelmingly popular. I don't think the Supreme Court's legitimacy comes from always doing what the public wants -- in that case it could never have legalized interracial marriage -- but these decisions are both pretty obviously on the right side of a huge majority of public opinion if you take even a cursory look at it.

Lol, that poll from Cato is laughably bad.

The topline question actually says that 64% of respondents support student loan forgiveness.

It's only when you add those disingenuous tradeoffs (it will raise your taxes, it will raise tution) does it show that people oppose it.

These points are...obviously correct? Like does the Biden Administration even dispute them?

Nice try, though!

Well, also, these poll results fit in a context where Democratic Party operatives think it is unpopular, where the CNN poll also shows that even partial forgiveness for those most in need -- a policy much more limited than Biden's -- tends to run behind normal Democratic vote-share.

Also, you can't ignore broader societal context. People vote in referendums against universal health-care all the time, and when elections are polarized on that issue MA and CA are very close, but polls think there is a slight national majority in its favor. Spending increases basically always poll better than they perform in referendums. You need to have a picture of the electorate in order to poll well, and these pictures are always informed by conventional wisdom, and there is a general reluctance to admit that ideological fiscal conservatism is close to as popular as it actually is (which, taking in all the evidence, is a fairly strong national majority).

But regardless, like you said, the Supreme Court's legitimacy doesn't come from public opinion.

Can you defend the Court's decision on constitutional merit alone?

Yes. The HEROES Act which Biden attempted to use to justify the cancellation did not actually permit anything of the sort. It is meant to provide much more limited relief to the victims of wars and natural disasters, of a type which COVID was clearly not, since there wasn't regional immiseration. (The relevant canon of construction here is noscitur a sociis; words that are part of a list are to be interpreted with reference to the other terms in a list. The Republican Senator who wrote it is still in Congress and opposed Biden's plan, although I don't think she spoke about the constitutional issues in question.

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I'm thankful for the two rulings on elections/voting, but this term was still an absolute travesty.

Sixty years! Sixty years!

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Statistics update: there were significantly fewer perfectly ideologically split decisions this term than previous terms. Only five cases, out of 57, were the 6-3 split that you would expect (Jones v. Hendrix; Samia v. US; SFA v. University of North Carolina; Biden v. Nebraska; 303 Creative v. Elenis). There were also two "further-right" opinions, where a 5-4 right-wing majority wrote an opinion over three liberals and a conservative (Gorsuch joined the liberals in Arizona v. Navajo Nation; Thomas joined the liberals in Coinbase v. Bielski). Another "further-right" opinion can be added here in Sackett v. EPA, which was 9-0 on the judgment, but on the merits was a 5-4 decision with Kavanaugh joining the liberals in what is technically not dissent.

How many liberal victories were there (here defined -- and you can quibble with this definition -- as a decision made with all of the liberals in the majority and at least 3 conservatives in dissent)? I count 7 clear-cut examples (Cruz v. Arizona, Roberts and Kavanaugh with liberals; Helix v. Hewitt, Roberts, Thomas, and Barrett with liberals; Wilkins v. US, Gorsuch, Kavanaugh, and Barrett with liberals; Reed v. Goertz, Roberts, Kavanaugh, and Barrett with liberals; Allen v. Milligan, Roberts and Kavanaugh with liberals; Yegiazaryan v. Smagin, Roberts, Kavanaugh, and Barrett with liberals; and Moore v. Harper, Roberts, Kavanaugh, and Barrett with liberals). Another "liberal" opinion that can be added here is US v. Texas, which was 8-1 with only Alito dissenting in judgment, but was Kavanaugh and Roberts joining the liberals for 5-4 on the merits.

(Two more cases probably need to be discussed: Mallory v. Norfolk Southern fits my 'three conservatives in dissent' criterion, but is really just an ideologically fractured case, with Gorsuch/Thomas/Alito/Sotomayor/Jackson in the majority, and then Roberts/Kavanaugh/Barrett/Kagan in the minority. Glacier Northwest v. Teamsters can sort of go in both categories; in judgment it was 8-1 with only Jackson dissenting, but on the merits Sotomayor and Kagan joined Roberts/Kavanaugh/Barrett for a much more moderate opinion than what Thomas/Alito/Gorsuch wanted. It was a politicized case and clearly a right-wing victory -- my guess is Jackson would've joined the majority if it were necessary to affect the outcome -- but one where the liberals were able to negotiate a much smaller right-wing victory than there might otherwise have been).

That comes out to 9 victories for both sides when you look at things closely -- though of course the selection of cases itself was quite right-wing. This method also ignores some kind of obvious cases which were greatly hyped but ended up having a large enough win for one side that they're discounted (Haaland v. Brackeen was a liberal victory in the popular press, but at 7-2 it was one most of the conservatives agreed with; SFA v. Harvard saw Jackson recuse herself, so at 6-2 it technically doesn't count as "all liberals in dissent", with only SFA v. UNC making the list).

Anyway, my conclusion is that there remains plenty of space to push the Court rightwards, but whether this will be done will probably depend on who exactly future Republican Presidents are; 3 conservatives on the 'liberal' side of a decision is not that few. Pushing the Court leftwards will depend on consistently much better electoral performances from Democrats than they've had over the last few decades, or unexpected demographic trendlines.

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Kavanaugh, at the center of the court, was most frequently in the majority, at 96%. (Note that this analysis is sometimes a tiny bit silly and overstates how much the Court agrees on everything, and tends to count actually quite controversial cases like Sackett or Glacier Northwest as being unanimous or nearly so). Thomas dissents the most frequently, with him joining the majority only 76% of the time. (In fact, Thomas and Alito are further from 'the center' of the court than the three liberals! One can imagine a center-right v. far-right divide ending up more fundamental to the court's opinions than the liberal v. conservative divide over the next few terms depending on which issues are heard most).

Of the liberals, Jackson was in the majority most often, at 84%. Simply reading the opinions, it seems like Jackson has a very adversarial relationship with Thomas and Roberts, but a very friendly relationship with Gorsuch.

Everyone wrote about the same number of majority opinions: Gorsuch and Kavanaugh were at 7, Sotomayor was at 5, and everyone else was at 6.

But the number of dissents varied dramatically: Thomas wrote 9, Alito wrote 7, and Jackson wrote 6. Sotomayor/Kagan/Barrett wrote 4 each (the normal amount), while Gorsuch wrote just 3, Kavanaugh just 1, and Roberts zero.

By raw number of opinions (majorities, concurrences, and dissents), Thomas placed first at 22, with Gorsuch hot on his heels at 21. Alito and Jackson wrote 17 each, and then Sotomayor/Kavanaugh/Barrett each wrote 15 (the normal amount). Kagan wrote just 11 and Roberts just 7.

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How many liberal victories were there (here defined -- and you can quibble with this definition -- as a decision made with all of the liberals in the majority and at least 3 conservatives in dissent)? I count 7 clear-cut examples (Cruz v. Arizona, Roberts and Kavanaugh with liberals; Helix v. Hewitt, Roberts, Thomas, and Barrett with liberals; Wilkins v. US, Gorsuch, Kavanaugh, and Barrett with liberals; Reed v. Goertz, Roberts, Kavanaugh, and Barrett with liberals; Allen v. Milligan, Roberts and Kavanaugh with liberals; Yegiazaryan v. Smagin, Roberts, Kavanaugh, and Barrett with liberals; and Moore v. Harper, Roberts, Kavanaugh, and Barrett with liberals). Another "liberal" opinion that can be added here is US v. Texas, which was 8-1 with only Alito dissenting in judgment, but was Kavanaugh and Roberts joining the liberals for 5-4 on the merits.

I'm not particularly familiar with the other cases, but Wilkins was a Pacific Legal Foundation case, and to the extent it got amicus interest it was the usual right-wing orgs (Cato, NFIB, etc.) lining up with the petitioners. Thomas's dissent adopted the government's position, while Sotomayor's majority lined up with the arguments advanced by PLF. Wouldn't exactly call it a liberal victory.

Yeah, my analysis here is really mechanical and as I pointed out discussing Glacier Northwest some of the "liberal" victories would've been coded as conservative rulings not all that long ago, and the victory is just in a much more conservative framework not being adopted. In addition to picking what cases the Supreme Court gets to here, the right is also substantially getting to frame the contours of the debate. I'm not super familiar with Wilkins, which doesn't even have a Wikipedia article, so I'll defer to your knowledge of that case.