SCOTUS 2022-2023 Term

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Student Loan Executive Order by President Biden will almost certainly striked down by the SCOTUS tomorrow. I'd be surprised if they let that stay.

It's considered a lot more of a jump ball after oral arguments than it had been before, because Kav and ACB seemed skeptical of the idea that the people who want the program voided have standing, but we'll see. Either brucejoel or HSTruman, I forget who, pointed out on Discord that it's remarkable how most people take it as a given that these hacks will void the program if they reach the merits, since traditionally what people sue for when they're left out of a government program is, you know, damages, not a deranged crab-bucket "remedy" of disadvantaging other people the way they've been disadvantaged. I also noted this up-thread.

303 Creative is almost certainly going to be another win for this Court's maximalist free exercise jurisprudence; the question is just how much of a win.

The Student Loan Programme seems pretty clear cut to me. President Biden doesn't posses the legal Authority to do what he did last 2022. No matter if you like the Plan or not on legal grounds alone it should be struck down.

I think if this were true the majority would have been able to come up with something better than "'any statutory or regulatory provision' means 'some statutory or regulatory provisions'? What a country!"

[Ferguson97]

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.

[Vosem]

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.

[Ferguson97]

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.

Nice try, though!


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?

[OSR stands with Israel]

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.

Nice try, though!


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?

The constitution makes it clear that congress must approve expenses and they did not approve of this

[Anti Democrat Democrat Club]

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

[Vosem]

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.

[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."

[Skill and Chance]

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.

How bad would the natural disaster have to be to qualify, then?  Is there any scale for gauging that?

Suppose that the February 2021 Texas blackout had reached the critical level where the entire grid was fried and the entire state would be without power until the summer.  Would a several month power outage with basically a return to 19th century economic conditions qualify?

Could a pandemic meet that standard at all?  If (God forbid) COVID had >50% mortality like the Black Death, and workplaces closed because entire teams died at the same time, would it have qualified?

At a minimum, I presume wiping out the student loan debt of people drafted into a congressionally declared war would be legitimate?   

[Progressive Pessimist]

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

[Vosem]

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

Sixty years! Sixty years!

[Vosem]

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.

[Vosem]

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.

[Sestak]

Roberts has kept himself consistently above 90% majority rate since Kavanaugh's first full term on the court. Now between writing zero dissents and taking the majority of super high-profile cases post-Dobbs for himself, he's very clearly trying to establish some sort of firm control of his Court.

[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.

[Vosem]

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.

[MaxQue]

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.

Seems to be about governmental maintenance of their easements, through the whole lawsuit was about the existence of deadline to bring an action on it.

[politicallefty]

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

Even those decisions weren't true wins. They were just holding the line, preventing things from getting worse. Maybe I can give you Milligan, but Moore ultimately reserves massive power to the federal judiciary (and, ultimately, the Supreme Court) over state courts.

I'd also say my prior supposition that Roberts has his Court back is definitively true.