Legal/scotus thread
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striker42
Well-known member
It's been about a year since Kennedy retired and we've had our first term with Kavanaugh. So we're starting to get returns on the that can compared to the predictions of what would happen if Kavanaugh was confirmed.
I think it's safe to say the court has moved to the right. The Gerrymandering cases probably show that more clearly than anything else. However, it's also safe to say it hasn't moved nearly as far to the right as the dire predictions from the left would have had everyone believe.
The court had chances to make some more sweeping decisions and establish far more conservative jurisprudence but it seems to have restrained itself. There doesn't seem to be much appetite on the court for extreme measures at this point.
I think part of the reason for this is that the conservative justices vary in their degree of conservatism. Farthest right are Thomas and Alito. Had those two had their way we'd likely have seen a larger turn to the right. However, these two are moderated some my the presence of Gorsuch, Kavanaugh, and most importantly Roberts.
If Thomas and Alito push too far right, they run the risk of one of the other three conservatives defecting. These differences in conservative intensity have likely contributed to more restrained decisions in order to get a position that can be agreed upon.
When Kavanaugh was being confirmed I was always mystified as to why the left fought him as hard as they did. He was about as moderate of a selection as they could hope to get. If they defeated his confirmation, the next candidate would likely have been a reincarnated Scalia.
It will be interesting to see how things shake out moving forward. Judging by the cases added to its docket, the court really doesn't seem to be hunting for cases that would stoke major controversy. That fits with what we saw this past term.
I think it's safe to say the court has moved to the right. The Gerrymandering cases probably show that more clearly than anything else. However, it's also safe to say it hasn't moved nearly as far to the right as the dire predictions from the left would have had everyone believe.
The court had chances to make some more sweeping decisions and establish far more conservative jurisprudence but it seems to have restrained itself. There doesn't seem to be much appetite on the court for extreme measures at this point.
I think part of the reason for this is that the conservative justices vary in their degree of conservatism. Farthest right are Thomas and Alito. Had those two had their way we'd likely have seen a larger turn to the right. However, these two are moderated some my the presence of Gorsuch, Kavanaugh, and most importantly Roberts.
If Thomas and Alito push too far right, they run the risk of one of the other three conservatives defecting. These differences in conservative intensity have likely contributed to more restrained decisions in order to get a position that can be agreed upon.
When Kavanaugh was being confirmed I was always mystified as to why the left fought him as hard as they did. He was about as moderate of a selection as they could hope to get. If they defeated his confirmation, the next candidate would likely have been a reincarnated Scalia.
It will be interesting to see how things shake out moving forward. Judging by the cases added to its docket, the court really doesn't seem to be hunting for cases that would stoke major controversy. That fits with what we saw this past term.
cajunrevenge
Well-known member
https://themip.org/wp-content/uploads/2019/07/2019-07-19-MNT-Exh.-1_CIU-Report.pdf
Of all my time researching police misconduct this case of wrongful conviction has to be the most corrupt investigation I have ever seen. I would summarize but there is so much misconduct it would be an extremely long post.
Of all my time researching police misconduct this case of wrongful conviction has to be the most corrupt investigation I have ever seen. I would summarize but there is so much misconduct it would be an extremely long post.
cajunrevenge
Well-known member
https://www.techdirt.com/articles/2...hot-non-threatening-dog-hit-kid-instead.shtml
And we have a new contender for worst court decision. Cops pursued a suspect into the back yard of a woman and her kids. Cops ordered her and all her kids to get on the ground. Everyone complied. One officer then shot twice at the family dog and missed. The dog retreated to under the house. Then it slowly came out and started approaching the kids. The cop then shoots at the dog again who is doing nothing threatening hits the romans 10 year old child in the knee. The 11th circuit ruled that shooting at a non threatening dog that is next to a child is not unreasonable behavior.
And we have a new contender for worst court decision. Cops pursued a suspect into the back yard of a woman and her kids. Cops ordered her and all her kids to get on the ground. Everyone complied. One officer then shot twice at the family dog and missed. The dog retreated to under the house. Then it slowly came out and started approaching the kids. The cop then shoots at the dog again who is doing nothing threatening hits the romans 10 year old child in the knee. The 11th circuit ruled that shooting at a non threatening dog that is next to a child is not unreasonable behavior.
striker42
Well-known member
That was really bad. The deference given police is sickening.
cajunrevenge
Well-known member
https://www.reuters.com/article/us-...S&feedName=domesticNews&utm_source=reddit.com
Interesting lawsuit here. Cops arrested a man for running a parody police Facebook page for "disrupting police services" for which he was aquitted. The police claim that a reasonable person could not distinguish between this page and their real page. This parody page had posts like a food drive to help teens afford abortions, a recruitment ad strongly encouraging minorities not to apply, and a pedophiles reform event encouraging attendees to obtain honorary police officer status and "just have fun out there"
Interesting lawsuit here. Cops arrested a man for running a parody police Facebook page for "disrupting police services" for which he was aquitted. The police claim that a reasonable person could not distinguish between this page and their real page. This parody page had posts like a food drive to help teens afford abortions, a recruitment ad strongly encouraging minorities not to apply, and a pedophiles reform event encouraging attendees to obtain honorary police officer status and "just have fun out there"
cajunrevenge
Well-known member
https://www.newsobserver.com/news/state/north-carolina/article233622107.html
Just when you think you have seen the worst ruling here comes a new contender. A man is riding in a car with his wife driving. They pass a cop and the Husband waves to him and flips him off. The officer then conducted a traffic stop and gave the passenger a ticket for failing to ID and obstructing an officer. Flipping off police has long been protected first amendment speech. This cop said flipping off a cop is probable cause that a crime has been committed or is about to be committed. This what happens when you make prosecutors judges. Often the judge might as well be a prosecutor.
Just when you think you have seen the worst ruling here comes a new contender. A man is riding in a car with his wife driving. They pass a cop and the Husband waves to him and flips him off. The officer then conducted a traffic stop and gave the passenger a ticket for failing to ID and obstructing an officer. Flipping off police has long been protected first amendment speech. This cop said flipping off a cop is probable cause that a crime has been committed or is about to be committed. This what happens when you make prosecutors judges. Often the judge might as well be a prosecutor.
striker42
Well-known member
Considering the SCOTUS' total fumble on the retaliatory arrest case, decisions like this are even more troubling. The arrow is moving in the wrong direction.
cajunrevenge
Well-known member
https://thenevadaindependent.com/ar...cholas-as-model-for-future-plea-deal-requests
DA gives a sweetheart deal to a Billionare on multiple felony drug charges. No jail time and a 500k donation. So the county public defenders office is going to use this deal as the precedent for drug offenses going forward. No jail time and a donation totally 0.0128% of their net worth.
DA gives a sweetheart deal to a Billionare on multiple felony drug charges. No jail time and a 500k donation. So the county public defenders office is going to use this deal as the precedent for drug offenses going forward. No jail time and a donation totally 0.0128% of their net worth.
striker42
Well-known member
A look ahead to the upcoming term reveals what will probably be the big case of the term. It is RG & GR Funeral Homes Inc. v. EEOC. In this case Anthony/Aimee Stephens, a transgendered funeral home worker who is biologically male informed the owner of the funeral home Stephens would begin presenting as a woman at work. This included dressing as a woman. This funeral home has a strict dress code for both men and women. In the end, the funeral home owner decided to terminate Stephens with the stated reason being violation of the dress code.
There are other facts alleged but these are the ones at the core.
This case is interesting for a couple reasons. First, the culture war topic is sure to make it one that receives heavy coverage. But to me, that's the least interesting aspect.
More interesting is that this is not a case of an individual versus the government. As such, there is no constitutional right implicated. The only constitutional right you have protecting you from private actors is no involuntary servitude.
The protections offered Stephens in this case are statutory. Specifically Title VII. Since the protections are statutory in nature, the Court has less maneuvering room. They can't create a new suspect class that gets protections under equal protection. The classes that get protection under Title VII are specifically laid out. Title VII offers protection from employment discrimination based on race, color, religion, national origin, and sex.
The fact that it offers protection based on "sex" is key in this case.
The first question this case raises is whether discrimination based on gender identity is inherently discrimination based on sex. I've read the briefs by both sides and I don't either side feels believes the court would expand Title VII protections in this way.
This is a case of statutory interpretation and there are canons that the Court is supposed to follow. Looking at the plain meaning of the statute and looking at the meaning Congress intended are both things the court is supposed to consider when interpreting a statute.
Here, the protection is against discrimination based on "sex." The plain meaning of sex is generally agreed to be biological as opposed to gender which is defined more as an artifact. Additionally, it would be patently ridiculous to argue that when Title VII was passed in 1964 that Congress meant sex to include transgender protections. The evidence is very strong that they meant biological sex.
So instead, Stephens side has put all their eggs in the sex sterotype basket. In the case Price Waterhouse v. Hopkins, a woman was denied partnership at an accounting firm. During the process, some of the partners had referred to her as "macho" and that she should take "a course at charm school." The idea being that her failure to conform with sex stereotypes was discrimination on the basis of sex.
Stephens attorneys argue that Stephens being fired for a refusal to comply with the male dress code and insistence on complying with the female dress code was a firing based on Stephens' refusal to comply with sex sterotypes and so violates Title VII. This is a fairly good argument.
The funeral home, however, has some strong arguments in its favor. The courts have previously held that sex specific dress codes do not violate Title VII (unless of course the dress code unfairly burdens one sex). Additionally, in the Price Waterhouse case, the female employee was being held to stereotype standards not being applied to men and so there was discrimination. Here, the funeral home holds males and females to (arguably) comparable dress codes and so there is no discrimination.
If I had to predict how the court will come down, I'd say 5-4 in favor of the funeral home. I expect the conservative justices will stick with a stricter interpretation of Title VII, say separate dress codes are not discriminatory, and say that it is the role of Congress to expand this law and not the courts. I expect the four liberals to go hard into the sex stereotypes and say that taking adverse action based on how a male or female is expected to present is a discriminatory action based on sex.
There are other facts alleged but these are the ones at the core.
This case is interesting for a couple reasons. First, the culture war topic is sure to make it one that receives heavy coverage. But to me, that's the least interesting aspect.
More interesting is that this is not a case of an individual versus the government. As such, there is no constitutional right implicated. The only constitutional right you have protecting you from private actors is no involuntary servitude.
The protections offered Stephens in this case are statutory. Specifically Title VII. Since the protections are statutory in nature, the Court has less maneuvering room. They can't create a new suspect class that gets protections under equal protection. The classes that get protection under Title VII are specifically laid out. Title VII offers protection from employment discrimination based on race, color, religion, national origin, and sex.
The fact that it offers protection based on "sex" is key in this case.
The first question this case raises is whether discrimination based on gender identity is inherently discrimination based on sex. I've read the briefs by both sides and I don't either side feels believes the court would expand Title VII protections in this way.
This is a case of statutory interpretation and there are canons that the Court is supposed to follow. Looking at the plain meaning of the statute and looking at the meaning Congress intended are both things the court is supposed to consider when interpreting a statute.
Here, the protection is against discrimination based on "sex." The plain meaning of sex is generally agreed to be biological as opposed to gender which is defined more as an artifact. Additionally, it would be patently ridiculous to argue that when Title VII was passed in 1964 that Congress meant sex to include transgender protections. The evidence is very strong that they meant biological sex.
So instead, Stephens side has put all their eggs in the sex sterotype basket. In the case Price Waterhouse v. Hopkins, a woman was denied partnership at an accounting firm. During the process, some of the partners had referred to her as "macho" and that she should take "a course at charm school." The idea being that her failure to conform with sex stereotypes was discrimination on the basis of sex.
Stephens attorneys argue that Stephens being fired for a refusal to comply with the male dress code and insistence on complying with the female dress code was a firing based on Stephens' refusal to comply with sex sterotypes and so violates Title VII. This is a fairly good argument.
The funeral home, however, has some strong arguments in its favor. The courts have previously held that sex specific dress codes do not violate Title VII (unless of course the dress code unfairly burdens one sex). Additionally, in the Price Waterhouse case, the female employee was being held to stereotype standards not being applied to men and so there was discrimination. Here, the funeral home holds males and females to (arguably) comparable dress codes and so there is no discrimination.
If I had to predict how the court will come down, I'd say 5-4 in favor of the funeral home. I expect the conservative justices will stick with a stricter interpretation of Title VII, say separate dress codes are not discriminatory, and say that it is the role of Congress to expand this law and not the courts. I expect the four liberals to go hard into the sex stereotypes and say that taking adverse action based on how a male or female is expected to present is a discriminatory action based on sex.
Jaw
It's OVER 5,000!
Nice post Striker. I do quibble with your assertion of five conservative justices. How Roberts can be considered a conservative after his... creative change of opinion to pass ACA and embiggen the power of the federal government is beyond me. I know that's a popular media take, but it isn't one I find defensible. And Kavanaugh isn't far to his right. I think of the court more as 3 conservatives, 2 moderates, and 4 progressives. The ratio of how often the justices vote in certain blocks seems to validate that.
cajunrevenge
Well-known member
Giving the federal government more power isnt a conservative position?
Jaw
It's OVER 5,000!
Of course not. It's a modern day position of both parties, and sadly it has seemed to be a goal of the Supreme Court for the last century or so. But no, the true conservative stance would be to keep as much power as possible at the state level and limit the federal government's power, kinda like how the Constitution says it should work.
striker42
Well-known member
The Obamacare opinion written by Roberts is an amazing example of an extremely poorly reasoned opinion.
If Roberts wanted to uphold the law, you do it under the Commerce Clause. It would not be a large step from existing jurisprudence and was by far the strongest argument in favor of the law. However, Roberts own judicial philosophy is that the Commerce Clause should be reduced in scope. He wasn't about to expand it to uphold Obamacare.
That left the backup argument, that the individual mandate could be upheld as a tax. This argument has a big problem. The law doesn't use the word tax, it uses the word penalty. This expresses a punitive intent. The Court has held in the past that the taxing power of the Federal Government is not a police power and so taxes cannot be levied with punitive intent. The word penalty expresses punitive intent.
Roberts really wanted to uphold the law but didn't want to expand the commerce clause. So he was pitched with the idea of upholding it as a tax. The idea was that Congress could have passed a tax that functioned exactly as the individual mandate under the justification that they're forcing people who aren't paying into the system to pay into the system. Roberts jumped at that. The fact that the law was passed with ACTUAL punitive intent was pushed aside.
If Roberts wanted to uphold the law so bad he should have allowed it under interstate commerce. I wouldn't have batted an eye at the reasoning if he had. I might not necessarily agree with the expansion of that power but at least the logic would make sense.
If Roberts wanted to uphold the law, you do it under the Commerce Clause. It would not be a large step from existing jurisprudence and was by far the strongest argument in favor of the law. However, Roberts own judicial philosophy is that the Commerce Clause should be reduced in scope. He wasn't about to expand it to uphold Obamacare.
That left the backup argument, that the individual mandate could be upheld as a tax. This argument has a big problem. The law doesn't use the word tax, it uses the word penalty. This expresses a punitive intent. The Court has held in the past that the taxing power of the Federal Government is not a police power and so taxes cannot be levied with punitive intent. The word penalty expresses punitive intent.
Roberts really wanted to uphold the law but didn't want to expand the commerce clause. So he was pitched with the idea of upholding it as a tax. The idea was that Congress could have passed a tax that functioned exactly as the individual mandate under the justification that they're forcing people who aren't paying into the system to pay into the system. Roberts jumped at that. The fact that the law was passed with ACTUAL punitive intent was pushed aside.
If Roberts wanted to uphold the law so bad he should have allowed it under interstate commerce. I wouldn't have batted an eye at the reasoning if he had. I might not necessarily agree with the expansion of that power but at least the logic would make sense.
cajunrevenge
Well-known member
https://www.wxyz.com/news/region/ma...dly-criticizing-court-system-in-macomb-county
Judge gives sole custody of a 2 year old to his abusive mother despite a bunch of red flags. That mother promptly kills the child. The grieving Dad says he is going to expose the judge for what she has done. He is now sitting in jail on a half million dollar bond for "malicious use of telecommunications system". You know this won't fly in front of a jury. The judge knows that. The sheriff knows that. But that isnt the point. The point is to punish this man for critisizing the system. When his charges are laughed away by a jury the judge and sheriff wont be held accountable for purposely arresting and prosecuting someone they knew was not guilty. This is a huge flaw in our criminal justice system.
Judge gives sole custody of a 2 year old to his abusive mother despite a bunch of red flags. That mother promptly kills the child. The grieving Dad says he is going to expose the judge for what she has done. He is now sitting in jail on a half million dollar bond for "malicious use of telecommunications system". You know this won't fly in front of a jury. The judge knows that. The sheriff knows that. But that isnt the point. The point is to punish this man for critisizing the system. When his charges are laughed away by a jury the judge and sheriff wont be held accountable for purposely arresting and prosecuting someone they knew was not guilty. This is a huge flaw in our criminal justice system.
striker42
Well-known member
Quis custodiet ipsos custodes
cajunrevenge
Well-known member
https://www.boston.com/news/local-news/2019/09/04/susan-church-contempt-of-court
Defense lawyer arrested after the judge refuses to accept the dismissal of charges..... filed by the prosecutor...
Defense lawyer arrested after the judge refuses to accept the dismissal of charges..... filed by the prosecutor...
