SCOTUS 2022-2023 Term

[Donerail]

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)

Why did Wilson nominate such a type?

McReynolds was extremely unpleasant on an interpersonal basis and appointing him to the Supreme Court — a lifetime role traditionally somewhat removed from day-to-day political life — meant that he would not be able to serve in Wilson's administration, be involved in Democratic Party politics, or otherwise interact with Wilson

[Donerail]

Gorsuch would have upheld ICWA on everything, yes, but more fundamentally he wants to revise some of the foundation of federal Indian law as it exists today. The concurrence offers him space to do it in a way he can't in a maj op (part of the concurrence is, without saying as much, relitigating Castro-Huerta, a Kavanaugh op in which Gorsuch vehemently dissented).

Indian law today, for instance, is premised on the idea that Congress can pass whatever laws it wants to govern the Indian tribes (including e.g. ICWA). Gorsuch, by contrast, doesn't think this exists — he reads "plenary" to mean "exclusive" (so states, contra Castro-Huerta, would lack any power over tribes), but not to mean "absolute." He thinks there are hard-coded limits in the Constitution w/r/t how far Congress can go in legislating over tribes — that, in other words, the Constitution forbids Congress from, say, terminating the federal recognition of particular tribes or stripping them of their criminal jurisdiction over non-Indian criminal offenders (both things Congress has done by statute). A lot of this is, notably, in the big baller part of the opinion that Sotomayor & Jackson did not join.

[Donerail]

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.

Gorsuch is easily the most fascinating justice. Broadly conservative, except for being extremely progressive on Native American rights. Is there something in his background/upbringing that would have led him to this stance?

Gorsuch is a textualist, a philosophy that commits him to limiting government actions to what is permitted by the statutory text. This leads him to be skeptical of, for instance, new regulatory programs that do not appear to be clearly authorized by law, which typically limits the ability of agencies to respond to changing circumstances. But the United States also signed a great deal of treaties with Indian tribes and often felt comfortable ignoring them; Gorsuch believes that the specific text of "all Treaties made under the Authority of the United States" are binding law until and unless repealed, however the facts on the ground have changed in the interim, which explains decisions like McGirt.

He is also an originalist and believes in interpreting the Constitution by its original public meaning. This also typically leads to conservative results; the Constitution as understood in 1788 created a government of limited powers. But the Constitution also explicitly recognizes the sovereignty of Indian tribes, which are mentioned in the Indian Commerce Clause, and tribes at the time of the Founding were very much treated as sovereign states that the United States would bargain with as equals. The other justices are either simply not as committed to this method of interpretation (e.g. Kavanaugh, Alito) or have a sharply different read on the history (Thomas doesn't believe tribes are sovereign anymore).

Gorsuch grew up in Colorado, served on the Tenth Circuit (which gets more Indian law, as a percentage, than any other circuit), and adjuncted for a while at CU, which has one of the best Indian law programs of any law school, so he is familiar with Indian law in a way that the other justices are not. And he does seem to have a personal affinity for this area of law and the history involved. But ultimately this is something that flows naturally from his ideological and jurisprudential commitments.

[Donerail]

I don't see much difference in the web design case from the cake baking case, and that one was 7-2 with RBG being one of the two, so it's possible it's an 8-1 decision with Sotomayor as the only dissenter. I'm not familiar with the details of the case but I can't see how the court can go from 7-2 ruling that bakers don't need to bake cakes for same-sex weddings to at least 5 votes ruling that web designers do need to design web sites for same-sex weddings.

Huge difference from the bakery case — that one teed up the same question, but the court basically dodged it and instead resolved it on some extremely narrow grounds (they said the Colorado commission displayed actual animus toward the bakery). It didn't get into the free speech/free exercise issues that are presented more cleanly here.

[Donerail]

Yet another banger today from the pen of one Neil McGill Gorsuch:

All of which leaves the Navajo in a familiar spot. As they did at Bosque Redondo, they must again fight for themselves to secure their homeland and all that must necessarily come with it. Perhaps here, as there, some measure of justice will prevail in the end.

Twenty-six page dissent to a thirteen page majority.

[Donerail]

With so few decisions from Roberts or Alito, I'm thinking Roberts is most likely writing the student loan case. The next most likely looks like it might be Alito. Anyone else would honestly surprise me at this point.

? Not sure why you'd be surprised by someone else writing. The March sitting was very light — in addition to those two, Gorsuch, Kagan, Barrett, and Jackson have not yet written.

[Donerail]

I think the Court will side with Biden in the student loan case, mostly because I just have a very difficult time imagining a scenario where the court finds that Nebraska has standing but not Texas.

You forget how corrupt the court is - Alito and Thomas prove that. No chance they allow the conservatives to lose a case they deem most important (aside from abortion)

Genuine suggestion: you should stop posting in this board.

[Donerail]

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.

You were probably right the first time, except that if it's upheld on standing I don't think it'll be back next year.


To continue the topic, SCOTUS seemed to scramble the decisions. Gorsuch got a second opinion in November. I'm now far less sure he has 303 Creative. I wonder it Alito has it now. I'm 99% sure he has Groff though. Maybe affirmative action really will be split.

Yes, this opens up the possibility of 303 Creative being much more aggressive now. 

?? Why would Alito writing make 303 Creative more aggressive than if Gorsuch wrote? Any suggestion Gorsuch isn't writing opens the door to a more measured opinion.

[Donerail]

Alito has both Abitron and Groff. Could Sotomayor have Nebraska???

Well, if it’s liberals +Kavanaugh and Barrett to denying standing, she be the most senior.

Seems more like Sotomayor lost her majority in Abitron — four-vote concurrence in the judgment that's slightly longer than the majority opinion. Might be why it took so long to release.

[Donerail]

Again - these past few decisions have transformed from ignoring precedence to blatantly ignoring legal standing.

This isn't true at all? There have been a bunch of decisions this term that turned partially or exclusively on standing and produced liberal outcomes that otherwise would not have been possible. For one, the Court permitted the Biden administration to reinstitute its immigration guidelines (which, in practice, will lead to a lot fewer deportations) entirely on standing grounds, in an opinion that will likely bar several other attempts to challenge exercise of enforcement discretion in the immigration context. It also rejected an equal protection challenge to the Indian Child Welfare Act on standing. These are significant and unexpected wins and they are because of standing doctrine.

I think standing was kinda questionable in the student loans case, but it's not obvious to me (as it apparently is to you) that a state cannot sue on behalf of a state-created and state-controlled corporation, even if that corporation can also bring lawsuits on its own behalf. Certainly don't think one case amounts to the court "blatantly ignoring legal standing."

[Donerail]

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.