SCOTUS 2022-2023 Term

[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.

[Ferguson97]

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?

[Ferguson97]

https://twitter.com/KimberlyRobinsn/status/1669707411131645952

[Ferguson97]

https://twitter.com/chrisgeidner/status/1669708401884930049

Apparently this is all we're getting? Nothing on student loans or affirmative action...

[brucejoel99]

Apparently this is all we're getting? Nothing on student loans or affirmative action...

The ides of June…

[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.

[politicallefty]

Kagan had the False Claims Act case from December, so I was right on that. That leaves 303 Creative, Moore, and United States v. Texas (an immigration case) with Roberts, Gorsuch, and Kavanaugh having not written for that sitting. My prediction for that month has only been reinforced.

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.

One thing to note about that is the fact that Gorsuch's majority in McGirt was lost when Ginsburg was succeeded by Barrett. The Court didn't use Castro-Huerta to directly overturn it, but it was significantly gutted. (In other words, a pretty classic Kavanaugh decision.) McGirt was a big one for Gorsuch, so his dissent two years later was perfectly understandable.

[Skill and Chance]

Kagan had the False Claims Act case from December, so I was right on that. That leaves 303 Creative, Moore, and United States v. Texas (an immigration case) with Roberts, Gorsuch, and Kavanaugh having not written for that sitting. My prediction for that month has only been reinforced.

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.

One thing to note about that is the fact that Gorsuch's majority in McGirt was lost when Ginsburg was succeeded by Barrett. The Court didn't use Castro-Huerta to directly overturn it, but it was significantly gutted. (In other words, a pretty classic Kavanaugh decision.) McGirt was a big one for Gorsuch, so his dissent two years later was perfectly understandable.

So 303 Creative is almost surely a conservative win no matter which of those 3 writes it.

Nebraska could still be Kav as the 5th vote to deny standing, but it's an obvious loss for the federal government with the other 2.

I don't know as much about US v. Texas.

[Ferguson97]

So 303 Creative is almost surely a conservative win no matter which of those 3 writes it.

Not necessarily. The plaintiff very clearly lacks standing, so it could very well be a 7-2 (Alito and Thomas dissent) ruling.

[politicallefty]

So 303 Creative is almost surely a conservative win no matter which of those 3 writes it.

Nebraska could still be Kav as the 5th vote to deny standing, but it's an obvious loss for the federal government with the other 2.

I don't know as much about US v. Texas.

It doesn't have to be a conservative win in 303 Creative just because a conservative is writing. Bostock was quite the surprise. But, you're probably right though. I think it's possible it could have been a conservative win even with Kennedy as the median Justice, though perhaps more tempered down than whatever we presumably might get.

Kavanaugh won't be writing Nebraska. He's already written for February. I do agree that Roberts is likely bad news, but it's not the certainty it would be if it's Alito.

Here's some info on United States v. Texas written after oral arguments.

Not necessarily. The plaintiff very clearly lacks standing, so it could very well be a 7-2 (Alito and Thomas dissent) ruling.

I don't think the Court even touched the standing issue in that case. I still think it's Gorsuch with the majority opinion.

[Skill and Chance]

So 303 Creative is almost surely a conservative win no matter which of those 3 writes it.

Nebraska could still be Kav as the 5th vote to deny standing, but it's an obvious loss for the federal government with the other 2.

I don't know as much about US v. Texas.

It doesn't have to be a conservative win in 303 Creative just because a conservative is writing. Bostock was quite the surprise. But, you're probably right though. I think it's possible it could have been a conservative win even with Kennedy as the median Justice, though perhaps more tempered down than whatever we presumably might get.

Kavanaugh won't be writing Nebraska. He's already written for February. I do agree that Roberts is likely bad news, but it's not the certainty it would be if it's Alito.

Here's some info on United States v. Texas written after oral arguments.

Not necessarily. The plaintiff very clearly lacks standing, so it could very well be a 7-2 (Alito and Thomas dissent) ruling.

I don't think the Court even touched the standing issue in that case. I still think it's Gorsuch with the majority opinion.

IDK, remember the "reeducation program" comments from Gorsuch during oral arguments.   That's a pretty clear sign the side of a case arguing for broader LGBTQ rights won't be able to count to 5.

[Ferguson97]

IDK, remember the "reeducation program" comments from Gorsuch during oral arguments.   That's a pretty clear sign the side of a case arguing for broader LGBTQ rights won't be able to count to 5.

Bostock v. Clayton County would like a word.

[I spent the winter writing songs about getting better]

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.

[Skill and Chance]

IDK, remember the "reeducation program" comments from Gorsuch during oral arguments.   That's a pretty clear sign the side of a case arguing for broader LGBTQ rights won't be able to count to 5.

Bostock v. Clayton County would like a word.

The person who wrote Bostock was the one lashing out against the attorneys defending Colorado's side of the case.

[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.

[Vosem]

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.)

[Skill and Chance]

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.)

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?

[Vosem]

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".)

[Ferguson97]

Arizona v. Navajo Nation, 5-4. Majority written by Kavanaugh. Gorsuch joins the liberals in the dissent.

"The court holds that the treaty at issue does not require the federal government to take the affirmative steps that the Navajo Nation contends."
Pugin v. Garland, 6-3 (but not the breakdown you're expecting). Kavanaugh writes the majority again. Sotomayor dissents, joined by Kagan and Gorsuch. Jackson joins the conservatives.

"The court holds that an offense can "relate to obstruction of justice" for purposes of this statute even if the offense does not require that an investigation or proceeding is pending."
6-3, Yegiazaryan v. Smagin. Majority written by Sotomayor. Alito dissents, joined by Thomas and Gorsuch.

"This was a case involving two Russian citizens, in which the question was whether a foreign plaintiff whose only injury was to intangible property – such as a court judgment – has suffered the kind of domestic injury required to bring a claim under the Racketeer Influenced and Corrupt Organizations Act.

The Ninth Circuit ruled that the plaintiff had alleged a domestic injury, and the Supreme Court today upheld that ruling."
6-3, Jones v. Hendrix. Majority written by Thomas. Liberals dissent.

"This was a case filed by a federal inmate, Marcus Jones, who in 2000 was convicted of being a felon in possession of a firearm and was sentenced to more than 27 years in prison. In 2019, the Supreme Court ruled that the statute under which Jones was convicted requires prosecutors to show that the defendant knew that he was barred from possessing a gun – something that the government did not do for Jones, who contended that he believed that his record had been expunged. The question before the court was whether and how Jones can now challenge his detention when federal habeas corpus laws generally prohibit inmates from filing more than one petition for habeas corpus.

The court holds that Jones cannot proceed under 28 USC 2241, the general habeas corpus statute."

[This is the final opinion of the day]

[Skill and Chance]

Everything released today was pretty in the legal weeds, it looks like. 

Kavanaugh having 2 more opinions from after the new year that aren't Biden v. Nebraska is probably a bad sign for federal student loan borrowers.

[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.

[Skill and Chance]

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.

Holy crap

[brucejoel99]

https://twitter.com/imillhiser/status/1671888658142728195

[politicallefty]

Thomas is almost certainly not writing affirmative action then (which was a fairly safe bet anyway).

Everything released today was pretty in the legal weeds, it looks like. 

Kavanaugh having 2 more opinions from after the new year that aren't Biden v. Nebraska is probably a bad sign for federal student loan borrowers.

I never thought Kavanaugh was likely on account of him already writing for February. He was always going to have opinions for March and April. If the affirmative action cases are merged, someone will be left out there. Roberts, Alito, and Kavanaugh have yet to write for November and all that remains are the two affirmative actions and another lower profile case. It's unnerving how few opinions we have from Roberts and especially Alito.

Anyway, same time tomorrow everyone.

[Skill and Chance]

Thomas is almost certainly not writing affirmative action then (which was a fairly safe bet anyway).

Everything released today was pretty in the legal weeds, it looks like. 

Kavanaugh having 2 more opinions from after the new year that aren't Biden v. Nebraska is probably a bad sign for federal student loan borrowers.

I never thought Kavanaugh was likely on account of him already writing for February. He was always going to have opinions for March and April. If the affirmative action cases are merged, someone will be left out there. Roberts, Alito, and Kavanaugh have yet to write for November and all that remains are the two affirmative actions and another lower profile case. It's unnerving how few opinions we have from Roberts and especially Alito.

Anyway, same time tomorrow everyone.

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?