Fulton v. Philadelphia: Roberts has 9-0 majority opinion; late vote switches?
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  Fulton v. Philadelphia: Roberts has 9-0 majority opinion; late vote switches?
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Question: What will the vote be; who assigns majority opinion?
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5-4/Thomas assigns
 
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5-1-3/Thomas assigns
 
#3
6-3/Roberts assigns
 
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Author Topic: Fulton v. Philadelphia: Roberts has 9-0 majority opinion; late vote switches?  (Read 1009 times)
ibagli
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« Reply #25 on: June 17, 2021, 09:23:07 AM »

Nope

Quote
ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined. BARRETT, J., filed a concurring opinion, in which KAVANAUGH, J., joined, and in which BREYER, J., joined as to all but the first paragraph. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS and GORSUCH, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and ALITO, JJ., joined.
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Extremely Beatable Titan Keiko Fujimori
Alfred F. Jones
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« Reply #26 on: June 17, 2021, 09:29:52 AM »

Nope

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ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined. BARRETT, J., filed a concurring opinion, in which KAVANAUGH, J., joined, and in which BREYER, J., joined as to all but the first paragraph. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS and GORSUCH, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and ALITO, JJ., joined.

Itís for the adoption agency, btw.
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Dereich
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« Reply #27 on: June 17, 2021, 09:30:55 AM »

Yet another miss by ERM64man. 9-0 when all he could imagine was 5-4 or 6-3. Let this be a warning to anyone who takes his threads seriously.
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ERM64man
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« Reply #28 on: June 17, 2021, 09:38:27 AM »

I think Alito originally had the majority opinion; but lost it because Breyer, Sotomayor, and Kagan switched their votes to get a narrower decision. I bet there will be leaks from Kavanaugh or Virginia Thomas.
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President Sestak
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« Reply #29 on: June 17, 2021, 09:41:02 AM »

Nope

Quote
ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined. BARRETT, J., filed a concurring opinion, in which KAVANAUGH, J., joined, and in which BREYER, J., joined as to all but the first paragraph. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS and GORSUCH, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and ALITO, JJ., joined.

Itís for the adoption agency, btw.

On a rather technical point. The entire case seems to have been decided on the basis of the fact that the City of Philadelphia was permitted to grant exceptions to the mandate.

Clearly not the result the right wanted, as can be seen in Alito's textbook-length angry concurrence.
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Extremely Beatable Titan Keiko Fujimori
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« Reply #30 on: June 17, 2021, 09:42:24 AM »

Nope

Quote
ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined. BARRETT, J., filed a concurring opinion, in which KAVANAUGH, J., joined, and in which BREYER, J., joined as to all but the first paragraph. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS and GORSUCH, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and ALITO, JJ., joined.

Itís for the adoption agency, btw.

On a rather technical point. The entire case seems to have been decided on the basis of the fact that the City of Philadelphia was permitted to grant exceptions to the mandate.

Yes, this feels like a 4D chess move from Roberts and the liberals.
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ERM64man
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« Reply #31 on: June 17, 2021, 09:49:02 AM »

Nope

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ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined. BARRETT, J., filed a concurring opinion, in which KAVANAUGH, J., joined, and in which BREYER, J., joined as to all but the first paragraph. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS and GORSUCH, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and ALITO, JJ., joined.

Itís for the adoption agency, btw.

On a rather technical point. The entire case seems to have been decided on the basis of the fact that the City of Philadelphia was permitted to grant exceptions to the mandate.

Clearly not the result the right wanted, as can be seen in Alito's textbook-length angry concurrence.
I bet Josh Blackman at Reason will write an article speculating the liberals switched their votes to get a narrower decision, and that Alitoís concurrence was originally going to be the majority opinion that was lost.
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Extremely Beatable Titan Keiko Fujimori
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« Reply #32 on: June 17, 2021, 10:02:44 AM »

Barrettís concurrence (which Kavanaugh joined) is facially pretty open to overruling Smith - looks like if some future person can comr up with a workable non-Smith standard thereíd be five votes to overrule?
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ERM64man
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« Reply #33 on: June 17, 2021, 10:07:29 AM »

Breyer might be open to overruling Smith without establishing a strict scrutiny standard Alito wants.
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Ferguson97
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« Reply #34 on: June 17, 2021, 10:18:43 AM »

Very disappointing.
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Dereich
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« Reply #35 on: June 17, 2021, 10:22:28 AM »

I think Alito originally had the majority opinion; but lost it because Breyer, Sotomayor, and Kagan switched their votes to get a narrower decision. I bet there will be leaks from Kavanaugh or Virginia Thomas.

There is no reason to think that. From his opinion it is very clear that he tried to win the court over to overturn Smith but Barrett (joined by Kav) was clear herself in her opinion that while she doesn't like Smith either this wasn't the case to address it on. Alito only had 3 votes. He was never getting the majority.
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ERM64man
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« Reply #36 on: June 17, 2021, 10:26:25 AM »

A 77 page concurrence by Alito?
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sguberman
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« Reply #37 on: June 17, 2021, 10:33:23 AM »

I really want to know what happened behind the scenes with this case. Originally it looked like Alito was going to write this case so I wonder what changed.
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ERM64man
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« Reply #38 on: June 17, 2021, 10:35:13 AM »

I really want to know what happened behind the scenes with this case. Originally it looked like Alito was going to write this case so I wonder what changed.
The liberals switched their votes late to get a narrower decision in favor of Catholic Social Services.
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brucejoel99
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« Reply #39 on: June 17, 2021, 04:36:44 PM »
« Edited: June 17, 2021, 07:19:36 PM by brucejoel99 »

Between her join on Obamacare & her concurrence - which is a definite must-read(!) - here, it's becoming clear that ACB might just be a lot more relatively "moderate" (i.e., a Kavanaugh) than many were willing to give her credit for last fall.


Nope

Quote
ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined. BARRETT, J., filed a concurring opinion, in which KAVANAUGH, J., joined, and in which BREYER, J., joined as to all but the first paragraph. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS and GORSUCH, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and ALITO, JJ., joined.

Itís for the adoption agency, btw.

On a rather technical point. The entire case seems to have been decided on the basis of the fact that the City of Philadelphia was permitted to grant exceptions to the mandate.

Yes, this feels like a 4D chess move from Roberts and the liberals.

Pretty much, yeah: despite being unanimous in nominal favor of CSS, it's a win for Philly in that the Court basically just said that if Philly removes the discretionary-exemption clause from their contract, then they're okay to require that CSS not discriminate, so long as they're not also providing other agencies with exemptions from the same requirement too, thus saving the Court from overturning Smith - for the time being, anyway - & truly delivering a blow to Philly & LGBTQ+ rights.


Breyer might be open to overruling Smith without establishing a strict scrutiny standard Alito wants.
https://twitter.com/mjs_DC/status/1405532195356168208

You & Stern continue to be massively wrong all the damn time, exhibit #74,365: Breyer explicitly didn't join the part of ACB's concurrence wherein she said that Smith should be eventually overruled. All he did with his partial join was just agree that this case was independent of Smith. If Breyer ever voted to overturn Smith, that'd be a shocker for the ages.

In any event, though, there do seem to apparently be 5 votes for saying that Smith was wrongly decided, even if they didn't happen to connect here. What's interesting to remember is that the Court put Arlene's Flowers on hold pending the Fulton ruling, & its cert petition is still pending after having been re-listed a bunch of times before it was held over. Perhaps the explicit 5 votes to overturn Smith - with Kavanaugh & ACB on board this time - may emerge there if cert's granted.
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ERM64man
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« Reply #40 on: June 17, 2021, 05:05:52 PM »

Cert will be granted in Arleneís Flowers. Alito writes the majority opinion. Roberts partially agrees with the judgment or dissents (a 5-1-3 or 5-4 decision).
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brucejoel99
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« Reply #41 on: June 17, 2021, 05:53:33 PM »

Cert will be granted in Arleneís Flowers. Alito writes the majority opinion. Roberts partially agrees with the judgment or dissents (a 5-1-3 or 5-4 decision).

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The End to the Epic
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« Reply #42 on: June 17, 2021, 07:43:51 PM »

Yet another miss by ERM64man. 9-0 when all he could imagine was 5-4 or 6-3. Let this be a warning to anyone who takes his threads seriously.
Good point but I think the total number of people in the group described in bold is zero.
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ERM64man
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« Reply #43 on: June 17, 2021, 11:59:34 PM »

My vote switch theory is believed by credible sources.
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politicallefty
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« Reply #44 on: June 19, 2021, 07:20:14 PM »


Josh Blackman is a right-wing hack. I check on the Vololkh and SCOTUS parts of that site from time to time to get some perspective outside of my ideological bubble. For people like him, Justice Scalia wasn't even good enough and neither is this new 6-3 conservative majority. I read something from him that said there wouldn't be a true conservative majority until it becomes 7-2.

With that said, there might be something to what he said, but not necessarily in the same way. Justice Thomas is an island unto himself. I don't think this brokering of opinions works with him. We already know the three liberal Justices would vote to uphold the law under the Commerce Clause. That's four votes right there (technically three votes with a concurrence in judgement). I think Roberts saw through this suit as a way to try to troll him. The idea of standing through inseverability is a new one. It should not be entertained though. That would fundamentally change the courts as we know them.
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ERM64man
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« Reply #45 on: June 19, 2021, 08:19:51 PM »

There is bipartisan speculation that there were late vote switches. The bingo card of opinion assignments also hints that itís possible.
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brucejoel99
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« Reply #46 on: June 19, 2021, 08:34:52 PM »


Josh Blackman is a right-wing hack. I check on the Vololkh and SCOTUS parts of that site from time to time to get some perspective outside of my ideological bubble. For people like him, Justice Scalia wasn't even good enough and neither is this new 6-3 conservative majority. I read something from him that said there wouldn't be a true conservative majority until it becomes 7-2.

There could literally be a 9-0 conservative majority, but were 5 of them to merely just be of the Roberts/Kavanaugh/now ACB(?)/occasionally Gorsuch (i.e., Bostock, Native tribal rights, etc.) variety, it still wouldn't be good enough for them.
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