The SCOTUS Nomination and Confirmation Thread

[striker42]

I'm going back and reading Smith v. Illinois Department of Transportation (the ACB case) more in depth. Some interesting points.

First, the biggest reason the plaintiff failed is that most of the things that he alleged made it a hostile work environment he couldn't connect to race. He talked about getting cursed out and insulted multiple times but these were just run of the mill tirades directed at him and lacked any racial component. Since he couldn't connect those to race, they couldn't be considered.

There was only one incident that included race, that was when a supervisor (who was black) called the plaintiff a "stupid ass ni[]" upon finding out he had filed a complaint with the Equal Employment Opportunity Office. ACB actually wrote "The n-word is an egregious racial epithet". However, the law is very clear that the use of racially discriminatory language alone does not automatically a hostile work environment make. The plaintiff must show that the use of that language so altered the conditions of employment that a hostile work environment was created both to an objective standard (would a reasonable person consider it a hostile work environment) and to a subjective standard (did the plaintiff consider it a hostile work environment).

Here's where it gets interesting. The court didn't even address the objective prong (whether a reasonable person would consider it a hostile work environment) because the plaintiff failed to show that use of the racial slur made it a hostile work environment to him subjectively.

The plaintiff had provided evidence showing he suffered from "psychological distress" from his time working there but the evidence showed that distress pre-dated the use of the racial slur. It was the result of the normal abuse he had suffered. In fact, the plaintiff complained of a hostile work environment well before the use of the racial slur. He just had no evidence that the other hostility was racially motivated.

That this was a toxic work environment probably wasn't in doubt. He just didn't have any evidence that the toxicity was related to race. The only incident that implicated race was one that he had zero evidence supporting that it was the cause of his feeling the work environment was hostile.

This is a common problem with Title VII cases. Title VII hasn't stopped a lot of discrimination, it's just made people good at hiding it. Therefore there are constant struggles getting enough evidence together to prove the case.

 

[Metaphysicist]

Yeah, I read that earlier and frankly I think that is some pretty weak sauce reasoning by the 7th circuit (not just ACB; was a unanimous panel). The argument boils down to: "getting called the N-word couldn't be hostile because the job already sucked." That's logical gobbledygook.

 

[Jaw]

lol, I wish this were true, but... *gestures vaguely to American history*

The word "reasonably" is doing a lot of work there.

Humans have a remarkable talent for employing things in the opposite of their purpose. Justifying slavery with the Bible is a great example. It reminds me of using racial quotas and preference to combat racism. Anyone who can read the NT and come away with any justification for slavery has a much better imagination than me.

 

[nsacpi]

Humans have a remarkable talent for employing things in the opposite of their purpose. Justifying slavery with the Bible is a great example. It reminds me of using racial quotas and preference to combat racism. Anyone who can read the NT and come away with any justification for slavery has a much better imagination than me.

what about the OT

 

[goldfly]

That’s the fun thing

You justify what you want from the ot

And then preach about how loving the nt

It’s a nice cat and mouse game of bull****

 

[cajunrevenge]

https://www.newsbreak.com/news/2083...t-of-unconscionable-cruelty-in-teen-rape-case



ACB helped overturn a 6.7 million dollar lawsuit by a pregnant teen who was repeatedly raped by a prison guard because "it fell outside of the scope of his job". Are you ****ing kidding me? This says the county has no responsibility to make sure their employees are violating the inmates. God help me if I was a judge I would be handing out 600 million dollar judgement in case like this. 6.7 million for being violently raped while in the counties custody is horse****. **** like this keeps happening because there is not proper incentive to stop it.

 

[Jaw]

what about the OT

It's large enough that anyone can pull out of context quotes to justify almost anything, assuming they make the mistake of reading it as independent of the NT instead of as a prelude.

Also, are quote notifications not a thing on this site now? I don't get the notifications and don't often look very far back on threads.

 

[nsacpi]

It's large enough that anyone can pull out of context quotes to justify almost anything, assuming they make the mistake of reading it as independent of the NT instead of as a prelude.

Also, are quote notifications not a thing on this site now? I don't get the notifications and don't often look very far back on threads.

They have been turned off for a while. Board leader decided to redeploy funds away from the lawfully authorized purposes.

 

[Metaphysicist]

https://www.nytimes.com/2020/10/19/opinion/biden-supreme-court.html

Wow, Reagan’s solicitor Charles Fried taking shots at the current court and getting on board with Court packing. He is directly calling even Robert’s a reactionary (see Bedell, I told you):

But to paraphrase Churchill, such a maneuver is a bad idea, except for all the alternatives. Here the alternatives boil down to just one: a predictable, reactionary majority on the Supreme Court for perhaps as long as another generation.

I write reactionary, not conservative, because true conservative judges like John Marshall Harlan are incrementalists, not averse to change, respectful of precedent and unlikely to come into the grips of radical fantasies like eliminating or remaking the modern regulatory-administrative state.

But with the seemingly inevitable rise of Amy Coney Barrett to the court, this impending six- person majority is poised to take a constitutional wrecking ball to generations of Supreme Court doctrine — and not just in matters of reproductive choice.

For the single issue Roe voters out there, I think this article does a great rundown on the pervasive damage the Robert’s court has wrought and the potential hellscape they could leave if they don’t find their better selves.

 

[striker42]

https://www.nytimes.com/2020/10/19/opinion/biden-supreme-court.html

Wow, Reagan’s solicitor Charles Fried taking shots at the current court and getting on board with Court packing. He is directly calling even Robert’s a reactionary (see Bedell, I told you):



For the single issue Roe voters out there, I think this article does a great rundown on the pervasive damage the Robert’s court has wrought and the potential hellscape they could leave if they don’t find their better selves.

I think his take on the political positions of the justices is wrong. Roberts is not a reactionary. He's absolutely an incrementalist and is respectful of precedent. He joined the liberals in the Louisiana abortion case just this year because it would have overturned a recent SCOTUS case.

I don't think Kavanaugh or Gorsuch are reactionaries. Ultimately I think the court will land right around where those two sit on the political spectrum. It's conservative but not reactionary.

Ultimately, people tend to think their viewpoints are reasonable and the more people disagree with them the more radical they are. Fried isn't really a conservative. He's probably a step or two left of center and seems to have gone farther left with time. He sees a court that will likely disagree with him on a couple major issues and is making some pretty unsubstantiated claims. It's a very emotional reaction.

 

[Metaphysicist]

I don't really care to defend Fried but your take seems particularly naive.

Just because Roberts is playing the long game while destroying precedent doesn't mean he isn't destroying it. I would be interested to see what you make of the actual specific examples he gives. Janus, Shelby County, Citizen's United, Rucho etc. And I would love to see the defense of his truly sad positions in the dissents that are mentioned: Parents Involved (completely subversion of 14th amendment into anti-affirmative action tool) and LULAC (voters aren't allow to set up non-partisan redistricting commission by referendum; the existence of this option is later part of why he claims his Rucho decision is okay, so lol), the gists of which are likely to become the law of the land with a conservative supermajority.

Roberts sometimes slow walks moves, but that doesn't change where ends up. He voted for §5 of the Voting Rights Act in Northwest Austin before literally making up doctrines to strike it down through §4 in Shelby.

For example, you (and the conservatives who were mad about it) are making waaaaay too much of June Medical. That opinion refused to strike down the law in question because they had literally just seen that exact law and struck it down, but the opinion did the absolute minimum as a nod to precedent. Roberts is smart enough to know it would have looked farcical to reverse on literally the exact same law, but that doesn't change the endgame. The framing in Roberts' June opinion, i.e. I disagree with this reasoning, but because I "treat like cases alike" I have to vote this way in this case, is extremely narrow. It's a clear signal that he will not feel so bound on in abortion cases where there any space to work, and his words in June are already being used to attack other abortion laws. The big take away was that there were already 4 votes for "complete farce." Add ACB and plausible deniability for Roberts, and well... we'll see.

I think "Reagan's SG, the HLS FedSoc adviser, isn't really conservative" really says it all about how insane the "conservative" legal world is at this point. As does your assertion that Gorsuch/Kavanaugh are normal conservatives (which I guess is true to some extent at this point). Unitary Executive, gut Admin State, anti-Voting Rights, "Free Exercise" as a super-weapon to strike down legislation, weaken stare decisis... Those very much used to be fringe positions.

 

[striker42]

I don't really care to defend Fried but your take seems particularly naive.

Just because Roberts is playing the long game while destroying precedent doesn't mean he isn't destroying it. I would be interested to see what you make of the actual specific examples he gives. Janus, Shelby County, Citizen's United, Rucho etc. And I would love to see the defense of his truly sad positions in the dissents that are mentioned: Parents Involved (completely subversion of 14th amendment into anti-affirmative action tool) and LULAC (voters aren't allow to set up non-partisan redistricting commission by referendum; the existence of this option is later part of why he claims his Rucho decision is okay, so lol), the gists of which are likely to become the law of the land with a conservative supermajority.

Roberts sometimes slow walks moves, but that doesn't change where ends up. He voted for §5 of the Voting Rights Act in Northwest Austin before literally making up doctrines to strike it down through §4 in Shelby.

For example, you (and the conservatives who were mad about it) are making waaaaay too much of June Medical. That opinion refused to strike down the law in question because they had literally just seen that exact law and struck it down, but the opinion did the absolute minimum as a nod to precedent. Roberts is smart enough to know it would have looked farcical to reverse on literally the exact same law, but that doesn't change the endgame. The framing in Roberts' June opinion, i.e. I disagree with this reasoning, but because I "treat like cases alike" I have to vote this way in this case, is extremely narrow. It's a clear signal that he will not feel so bound on in abortion cases where there any space to work, and his words in June are already being used to attack other abortion laws. The big take away was that there were already 4 votes for "complete farce." Add ACB and plausible deniability for Roberts, and well... we'll see.

I think "Reagan's SG, the HLS FedSoc adviser, isn't really conservative" really says it all about how insane the "conservative" legal world is at this point. As does your assertion that Gorsuch/Kavanaugh are normal conservatives (which I guess is true to some extent at this point). Unitary Executive, gut Admin State, anti-Voting Rights, "Free Exercise" as a super-weapon to strike down legislation, weaken stare decisis... Those very much used to be fringe positions.

Kennedy joined the majority in Janus and Shelby County. He actually wrote the Citizens United decision. Is he a reactionary?

As for his dissents, Roberts is a conservative, no doubt. However, like many justices, Roberts writes more freely in dissents. You see an entirely different Roberts when he's the deciding vote on a close issue. Roberts is extremely concerned with the integrity of the court and has, on multiple occasions, crossed ideological lines to ensure respect for precedent and more incremental change. He wrote the Obamacare opinion! When he's on the losing side though, he doesn't have to worry about the stability of the law or respecting precedent. He can write what he feels. Go read some Ginsburg dissents sometimes if you want to see some real extremism.

Fried, however, seems to define anyone more conservative then him as reactionary. It's a common bias.

As for the June Medical opinion, that's the respect for precedent that Fried should have been talking about. The court is not an never has had its hands tied by precedent it determines is wrong. For example, in Trump v. Hawaii, Roberts took the chance to repudiate Korematsu v. US, the case allowing for the internment of Japanese Americans. Was he wrong for not feeling bound by that precedent? Of course not. He felt that case was wrongly decided so he can overturn old precedent.

Many abortion cases face the same problem. There are multiple people on the court who feel they were wrongly decided. Simply holding that belief does not make them reactionary or a danger to the SCOTUS. They could chip away at the established abortion precedent the same way the court has chipped away at other established precedent over the years.

This guy just loses all credibility attacking Roberts as reactionary. He's the most moderate justice on the court and the one most likely to cross ideological lines. He's the guy who voted with the liberals in the Obamacare case, June Medical, DACA, etc. This is a completely ridiculous take.

The court will only lean as far right as Gorsuch, Kavanaugh, and Roberts let it. Two out of those three are necessary for any decision. All three have shown to be anything but reactionary.

 

[sturg33]

Why was it cool to have a left leaning court for 20 years but now a right leaning court is a crisis?

 

[Metaphysicist]

Kennedy joined the majority in Janus and Shelby County. He actually wrote the Citizens United decision. Is he a reactionary?

Kennedy was a weirdo who voted extremely similarly to Roberts, except on his few pet "liberty" issues (Affirmative Action, abortion, LGBTQ rights). Just like he was "progressive" on a few issues, he was "reactionary" on others based on how he saw "liberty/dignity/whatever" coming up. His Citizens United decision is indeed a bit reactionary in the standard sense, though I think that is probably the least so of the cases listed. It is interesteing to me that its the only one you even bothered to address. I am much more interested to hear how Shelby is not reactionary for example.

He wrote the Obamacare opinion!

You mean the anti-precedential (and very poorly reasoned as you previously admitted) restriction on the Commerce power (a long time far right project) while avoiding the backlash of actually striking down the whole law? Come on man. I could have listed this in the original list of decisions.

For example, in Trump v. Hawaii, Roberts took the chance to repudiate Korematsu v. US, the case allowing for the internment of Japanese Americans. Was he wrong for not feeling bound by that precedent? Of course not. He felt that case was wrongly decided so he can overturn old precedent.

Again, these cases you are citing... Trump v. Hawaii as a non-reactionary decision? I feel like you are trying to make my case for me. That is probably one of the single worst decisions of the Roberts court, a textbook case in how they treat Christianity different from other religions, another long term "reactionary" project. Compare the "deference" given to the anti-Muslim animus from government here vs. the anti-Christian animus in Masterpiece.

And Korematsu was not precedent overruled by the holding of that case. The fact that he in dicta noted that Korematsu was bad is irrelevant; it was not a controlling case that he was overturning (he explicitly says it does not control), and he only mentioned it because Sotomayor was blowing him up about how he was doing the same thing and he needed to say "I agree that's bad, but this is different!".

Many abortion cases face the same problem. There are multiple people on the court who feel they were wrongly decided. Simply holding that belief does not make them reactionary or a danger to the SCOTUS. They could chip away at the established abortion precedent the same way the court has chipped away at other established precedent over the years

Do you honestly believe Roe/Casey are going to be left standing in any functional way by this court? That is the explicit purpose of every Republican appointment since the 80s, and a lot of people would be very disappointed by that. Settling for minor "chipping away" at this point seems... unlikely. And chipping away a precedent to nothing is no different than overturning it explicitly, except to give yourself plausible deniability; that doesn't affect whether it is reactionary or not.

This guy just loses all credibility attacking Roberts as reactionary. He's the most moderate justice on the court and the one most likely to cross ideological lines. He's the guy who voted with the liberals in the Obamacare case, June Medical, DACA, etc. This is a completely ridiculous take.

Being in the center of a conservative court does not make you a "moderate" in any sense. Kennedy, despite being a swing vote, was overall very conservative, but he crossed over on a few issues. Roberts is certainly to Kennedy's right, since his literal only swing issue is "court prestige."

 

[Jaw]

Why was it cool to have a left leaning court for 20 years but now a right leaning court is a crisis?

Ginsburg/Breyer/Kagan/Sotomayor voted as a block on every major issue. So obviously the guy most likely to join them is a crazy con extremist.
I'm not aiming that at Meta who proves he's actually researching and thinking and certainly is better informed than me. I'm talking about the 99+% of progs who are down with court packing because their shepherds led them that way.

 

[striker42]

I'm not arguing that Roberts isn't conservative. He is. My argument is that he's not reactionary. He's the most moderate member of the court and that includes all the liberals.

I find it interesting you think Kennedy was a conservative. Most analyses of his voting record as a whole either very slightly conservative or even very slightly liberal.

https://fivethirtyeight.com/features/supreme-court-justices-get-more-liberal-as-they-get-older/

That's a very interesting analysis from 2015 showing the paths of the justices at that time. Kennedy moved to the left over the years until, by the end, he was actually slightly into liberal territory.


https://www.economist.com/graphic-d...-court-may-be-about-to-take-a-hard-right-turn

The graph in this recent Economist article is pretty fantastic as well. It tracks the justices over time and plots in a projection for Barrett. Roberts, Kavanaugh, Gorsuch, and Barrett all fall closer to moderate than the most moderate liberal justice (Kagan). In fact, it shows Alito is about as conservative as Kagan is liberal. Kagan was much more moderate when first appointed, she's now gone pretty far left.

The idea that Roberts is a reactionary is just silly. Pretty much no objective analysis of the court's voting record shows Roberts as far right. You can point to individual cases where he decided very conservatively but as a whole he's been extremely moderate.

 

[cajunrevenge]

Why was it cool to have a left leaning court for 20 years but now a right leaning court is a crisis?

Because they represent a significant minority of the population and Republicans have used a series of dirty tricks to pack the courts with conservative judges. Republicans have won the popular vote once in 28 years. How does that entitle them to even being half of the judges much less a majority.




There is no putting the cat back in the bag when it comes to abortion. Its largely unenforceable when its legal just about everywhere else in the world. At best you are just criminilizing poor people who can't afford a trip to Mexico or Canada. There will undoubtably charity groups that help them out. How done handle people aiding people to go to another country to have an abortion? There will be all kinds of draconian measures by religious zealot cops. Imagine your wife has a miscarriage and some nosey neighbor tells police they suspect it was an abortion attempt because they know she'll is pro choice. Now she's being interrogated by police being threatened with decades in prison after a traumatic life experience. Innocent women will go to prison. Lack of "Christian values" will be used as evidence against women. There is just no way to fairly and accurately enforce it.

 

[Metaphysicist]

I think Roberts is very shrewd, and certainly not crazy. Using the term "reactionary" might be muddling the discussion. I just think the following is undeniable:

1) He is quite conservative, both personally and in his jurisprudence.
2) He has had a clear agenda for where he wants the court to go, and that vision is often well right-of-center (see e.g., VRA, Affirmative Action, Executive Power).
3) He has been quite successful in that agenda.
4) He has not let previous caselaw stop that agenda.
5) He has been willing to invent new "doctrines" to accomplish his agenda.
6) The "crossover cases" where he's provided the 5th vote with the libs are typically less impactful in the long term than conservatives seem to believe, and certainly less impactful than the slew of 5-4 conservative decisions he's put in place. He's concerned about appearances, but that's not affecting the overall trajectory of the court in anyway other than pacing.

 

[striker42]

I think Roberts is very shrewd, and certainly not crazy. Using the term "reactionary" might be muddling the discussion. I just think the following is undeniable:

1) He is quite conservative, both personally and in his jurisprudence.
2) He has had a clear agenda for where he wants the court to go, and that vision is often well right-of-center (see e.g., VRA, Affirmative Action, Executive Power).
3) He has been quite successful in that agenda.
4) He has not let previous caselaw stop that agenda.
5) He has been willing to invent new "doctrines" to accomplish his agenda.
6) The "crossover cases" where he's provided the 5th vote with the libs are typically less impactful in the long term than conservatives seem to believe, and certainly less impactful than the slew of 5-4 conservative decisions he's put in place. He's concerned about appearances, but that's not affecting the overall trajectory of the court in anyway other than pacing.

1. I would agree he's quite conservative personally. Less so in his jurisprudence. He's conservative but moderate conservative in his decisions.

2. I think Roberts, like most justices, does have pet issues that are a clear agenda. He hates the expansion of the Commerce Clause for instance and seems to support a strong free exercise clause. Those are right of center. In areas like abortion and gay rights, he seems more moderate. Executive power he's definitely not right of center. The DACA case actually strips a significant amount of executive power. That just wasn't the headline.

3. He has been quite successful in implements his judicial philosophy. Playing the middle means he has gotten to shape the court's position on a lot of issues. Also, he's the Chief Justice so when he's in the majority, he gets to assign who writes the opinion.

4. No SCOTUS judge actually lets previous case law stop their agenda. The only thing binding the current court to prior precedent is the respect for the judicial philosophy of stare decisis. When they think a prior case is wrong, justices are actually quick to say it should be overturned. That is true of all justices regardless of their ideology.

5. Again, all justices are willing to invent new "doctrines" as you call it to support their agenda. Though I think a better word would be "rules."

6. I think you would have push back from the people affected by those 5-4 crossover decisions. People with pre-existing conditions for instance. Roberts wants the law to move to the right just like the liberal justices want it to move to the left. That's not in doubt. However, Roberts actually wants a more measured, incremental movement to the right. He's a long way from Thomas.

 

[Metaphysicist]

I'm not arguing that Roberts isn't conservative. He is. My argument is that he's not reactionary. He's the most moderate member of the court and that includes all the liberals.

I find it interesting you think Kennedy was a conservative. Most analyses of his voting record as a whole either very slightly conservative or even very slightly liberal.

https://fivethirtyeight.com/features/supreme-court-justices-get-more-liberal-as-they-get-older/

That's a very interesting analysis from 2015 showing the paths of the justices at that time. Kennedy moved to the left over the years until, by the end, he was actually slightly into liberal territory.


https://www.economist.com/graphic-d...-court-may-be-about-to-take-a-hard-right-turn

The graph in this recent Economist article is pretty fantastic as well. It tracks the justices over time and plots in a projection for Barrett. Roberts, Kavanaugh, Gorsuch, and Barrett all fall closer to moderate than the most moderate liberal justice (Kagan). In fact, it shows Alito is about as conservative as Kagan is liberal. Kagan was much more moderate when first appointed, she's now gone pretty far left.

The idea that Roberts is a reactionary is just silly. Pretty much no objective analysis of the court's voting record shows Roberts as far right. You can point to individual cases where he decided very conservatively but as a whole he's been extremely moderate.

This is a complete misuse of Martin Quinn scores. To quote the publishers, they measure "the relative location of U.S. Supreme Court justices on an ideological continuum." The center is always 0; doesn't matter if it is Lochner court or Warren Court, the center justice is always "neutral." They do not measure objective "conservative" or "liberal" voting. They only tell you contextually where someone falls on the court at any given time. Of course Kennedy was in the "middle" of the court; but that doesn't mean he's not conservative. The whole court has been conservative for decades!

Kennedy moving "towards the center" is of course true to some extent, but his appearance on the "left side" of the court at the end of his career is explained mostly by the appointment of much more conservative justices over the course of his career. (For example Thomas -> Marshall creates a big "leftward bump" for everyone; likewise, O'Connor -> Alito only shifts everyone else noticeably left). Appointing ACB is going give everyone but probably Alito/Thomas a "leftward" boost in their Martin Quinn scores, but that doesn't mean they've actually changed any of their positions.

I mean look at this graph:

Scalia magically becomes "much more liberal" during the Bush years after the appointment of Alito and Roberts. Scalia!

There is no reasonable measure by which Kennedy is a "liberal" based on his actual overall voting record.

This is why I seriously hate Martin Quinn scores. They are literally always misused by econ folks because no one bothers to read the methodology or understand the context of the court and the publishers are happy for people to think they are more important than they really are.