The SCOTUS Nomination and Confirmation Thread

[Metaphysicist]

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.

Just factually incorrect. Explain to me how the author of Seila Law is "left of center" on Executive Authority.

The only limit DHS v. Regents puts on the Executive is that you can't bald-faced lie about your reasons for doing something: this is not actually a limit on authority. It's a classic Roberts "swing" vote that doesn't practically limit the Executive, but just makes them follow some process rules. Just like Department of Commerce, the holding is "I will let you do it, but don't make me look like an idiot." If you aren't blatantly pretextual, Roberts is happy to give you Trump v. Hawaii.

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.

Okay, great, so you agree with me.

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."

Mmm... I disagree with this. Justices shape doctrines all the time. Roberts invented the "separate state sovereignty" doctrine essentially out of whole cloth in order to strike down the VRA. This is especially galling coming from the side of the aisle ostensibly decrying judicial activism and demanding textualism uber alles.

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.

Meh, overturning ACA was political suicide. This was an easy case on the merits that Roberts and the conservatives made close for extremely hacky reasons by using terrible reasoning in order to attack the commerce clause. And he DID INVALIDATE A BIG PART OF THE LAW. Plenty of poor folks who can't get medicare could give two ****s about Roberts' supposed "moderate bona fides."

I will grant you that this is the best example of Roberts-as-compromiser, but I think having this be the best case to show that is pretty damning.

 

[Metaphysicist]

In areas like abortion and gay rights, he seems more moderate.

I also just have to push back on this. He joined the dissent in Hellerstedt, which involved a very obvious attempt by Texas to legislate abortion clinics out of existence. The fact that he pled "stare decisis" for the exact law in June Medical does not make him a moderate of any stripe on this issue. "Moderate" is frankly an absurd position to ascribe to him.

Likewise, he wrote the dissent in Obergefell. That he joined the majority in Bostock so he could assign it Gorsuch instead of letting Ginsburg write doesn't change the baseline. These are not accurate positions to ascribe to him.

 

[striker42]

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.

Your reasoning doesn't track fully here. The x-axis is the justices' ages, not a time line. They all hit these ages at different points in time. However, they all track fairly similarly regardless of the makeup of the court. This is true for more than just these justices. It tracks over time pretty consistently.

There are even political scientists who have offered explanations for this phenomenon. My favorite is probably the liberalizing influence of life on the court. The idea that SCOTUS justices are exposed to so many experiences that others are not (travel, academia, foreign dignitaries, etc), that this causes a left shift in the personal viewpoints of the members of the court.

 

[Metaphysicist]

Your reasoning doesn't track fully here. The x-axis is the justices' ages, not a time line. They all hit these ages at different points in time. However, they all track fairly similarly regardless of the makeup of the court. This is true for more than just these justices. It tracks over time pretty consistently.

You are misunderstanding me (or I was not clear). Scalia tilts "left-ward" in his mid-60s, which is when Bush II appoints Roberts and Alito. From that point on, the court itself is much closer to Scalia's viewpoint, and therefore he is "closer to center." This does not reflect an actual change in Scalia's jurisprudence, who quite obviously did not become only "half as conservative."

All of the them tilt "leftward" as they age... because the court is getting more conservative over time and the "zero point" is therefore shifting to the right.

Do you not understand my explanation of what Martin Quinn scores are? Or are you disagreeing with it somehow?

It doesn't matter what rationales political scientists come up with. You cannot actually draw this conclusion from the Martin-Quinn scores.

 

[cajunrevenge]

I am a little confused on how they come up with that. I dont think Conservatives or Liberals ideology is a static thing that doesnt change. For example, is marijuana legalization a conservative or liberal? I could honestly use either sides stereotypical ideology to argue for just about any position. I would argue I am one of the most biggest conservatives here. Some people here would say I move to the "left" but all I did was apply the same conservative logic I have always believed in.

 

[Carp]

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.

Your reasoning doesn't track fully here. The x-axis is the justices' ages, not a time line. They all hit these ages at different points in time. However, they all track fairly similarly regardless of the makeup of the court. This is true for more than just these justices. It tracks over time pretty consistently.

There are even political scientists who have offered explanations for this phenomenon. My favorite is probably the liberalizing influence of life on the court. The idea that SCOTUS justices are exposed to so many experiences that others are not (travel, academia, foreign dignitaries, etc), that this causes a left shift in the personal viewpoints of the members of the court.

Nerds

 

[Metaphysicist]

I am a little confused on how they come up with that. I dont think Conservatives or Liberals ideology is a static thing that doesnt change. For example, is marijuana legalization a conservative or liberal? I could honestly use either sides stereotypical ideology to argue for just about any position.

You are exactly right. Martin-Quinn scores do not actually measure ideology in the traditional sense. They measure voting patterns and how people line up with each other. There is no objective value to these numbers. A justice's score depends entirely on how he or she votes with the other members on the court; there is not an inherent relation to any policy position.

That's why the center point floats. Whatever majority controls is going to be closest to 0, de facto.

 

[striker42]

Just factually incorrect. Explain to me how the author of Seila Law is "left of center" on Executive Authority.

The only limit DHS v. Regents puts on the Executive is that you can't bald-faced lie about your reasons for doing something: this is not actually a limit on authority. It's a classic Roberts "swing" vote that doesn't practically limit the Executive, but just makes them follow some process rules. Just like Department of Commerce, the holding is "I will let you do it, but don't make me look like an idiot." If you aren't blatantly pretextual, Roberts is happy to give you Trump v. Hawaii.



Okay, great, so you agree with me.



Mmm... I disagree with this. Justices shape doctrines all the time. Roberts invented the "separate state sovereignty" doctrine essentially out of whole cloth in order to strike down the VRA. This is especially galling coming from the side of the aisle ostensibly decrying judicial activism and demanding textualism uber alles.



Meh, overturning ACA was political suicide. This was an easy case on the merits that Roberts and the conservatives made close for extremely hacky reasons by using terrible reasoning in order to attack the commerce clause. And he DID INVALIDATE A BIG PART OF THE LAW. Plenty of poor folks who can't get medicare could give two ****s about Roberts' supposed "moderate bona fides."

I will grant you that this is the best example of Roberts-as-compromiser, but I think having this be the best case to show that is pretty damning.

DHS v Regents is so much more than that. You missed the biggest thing in that case. Don't worry, the only other person I saw notice it was the editor of SCOTUSBlog. The first question, before even getting to Trump's reasoning for ending DACA, was whether the case was reviewable at all. The Obama administration's position in creating DACA was that it was that refusing to prosecute immigration actions was an exercise of executive discretion and so was not subject to judicial review. Trump argued also that his deciding to start prosecuting immigration actions was also an exercise of executive discretion and so not reviewable. The court disagreed. The court said that this wasn't a prosecutor deciding not to prosecute an individual case (which would be discretion), Trump's decision was part of a program affecting thousands of cases and so was not a matter of executive discretion.

The same logic applies to DACA's creation which is why it's ultimately doomed. That one decision took away the idea that a President can set up a program selectively enforcing laws based on "allocation of executive resources" and that it's just the President's discretion. It was a massive rollback of executive authority. Much larger than any authority granted under other cases.



As for prior precedent, Roberts actually does concern himself with the stability and predictability of the law (two of the main reasons for Stare Decisis) as well as the integrity of the SCOTUS and court system in general. It's more than a lot of justices care about. But ultimately, calling out Roberts for not respecting precedent is like pulling someone over for going 60 in a 55 when the rest of the cars on the road are doing 90.



Are you referring to the doctrine of "equal sovereignty"? The idea that the Federal government can't single out states of disparate treatment? If so, it's hardly a new idea. It has its roots in the Equal Footing Doctrine, the idea that all states, new and old, must be on equal footing under the Constitution. It's just a new face on a very old principle.



Roberts crossing the aisle in the ACA case was far more than any judge on the left side of the court has done in living memory.

 

[striker42]

I also just have to push back on this. He joined the dissent in Hellerstedt, which involved a very obvious attempt by Texas to legislate abortion clinics out of existence. The fact that he pled "stare decisis" for the exact law in June Medical does not make him a moderate of any stripe on this issue. "Moderate" is frankly an absurd position to ascribe to him.

Likewise, he wrote the dissent in Obergefell. That he joined the majority in Bostock so he could assign it Gorsuch instead of letting Ginsburg write doesn't change the baseline. These are not accurate positions to ascribe to him.

Gorsuch didn't need Roberts joining that case to get the opinion. Suppose Roberts votes against it and Ginsburg assigns herself to write the opinion. It's circulated (as always happens before it's issued) and Gorsuch doesn't like it. All Gorsuch has to do is write an opinion concurring in part and dissenting in part and his opinion would control. Because he would be the swing vote, you'd only have 5 votes to go as far as he wanted. This is an area of Con Law that many don't know about. So it's almost certain that even had Roberts dissented, Gorsuch's opinion would control.

My suspicion is that Gorsuch's reasoning swayed Roberts. He agreed, joined the majority, and gave the case to Gorsuch to write.

As for the dissent in Obergfell, it was based largely on federalism. The idea of expanding state sovereignty in relation to the Federal government is something he cares about. It was the cornerstone of the VRA case, it worked its way into the ACA case, and it was central to his Oberfell dissent.

I think Roberts is a moderate on gay rights because he really doesn't care that much. It's secondary to other issues to him. He's not against them and he's not for them. He flip flops based on other issues that are implicated.

 

[striker42]

You are misunderstanding me (or I was not clear). Scalia tilts "left-ward" in his mid-60s, which is when Bush II appoints Roberts and Alito. From that point on, the court itself is much closer to Scalia's viewpoint, and therefore he is "closer to center." This does not reflect an actual change in Scalia's jurisprudence, who quite obviously did not become only "half as conservative."

All of the them tilt "leftward" as they age... because the court is getting more conservative over time and the "zero point" is therefore shifting to the right.

Do you not understand my explanation of what Martin Quinn scores are? Or are you disagreeing with it somehow?

It doesn't matter what rationales political scientists come up with. You cannot actually draw this conclusion from the Martin-Quinn scores.

I understand what you meant. I don't think my objection was clear. My objection is a lot of these shifts don't line up evenly with Alito coming on the court.

Ginsburg was 73 when Alito joined. She had drifted to the left significantly before he joined and was stable until her late 70's when she took another left turn.

Scalia was 70 when Alito joined. He had already drifted toward the middle considerably before Alito was appointed.

Kennedy was 70 when Alito joined. He seemed to get more conservative for a while before moving left. Though his whole career was a gentle slope towards the left.


I'll admit these scores have issues. Any attempt to quantify ideology will. However, I think Alito joining had an impact though it can't explain the larger trends.

 

[Metaphysicist]

I understand what you meant. I don't think my objection was clear. My objection is a lot of these shifts don't line up evenly with Alito coming on the court.

Ginsburg was 73 when Alito joined. She had drifted to the left significantly before he joined and was stable until her late 70's when she took another left turn.

Scalia was 70 when Alito joined. He had already drifted toward the middle considerably before Alito was appointed.

Kennedy was 70 when Alito joined. He seemed to get more conservative for a while before moving left. Though his whole career was a gentle slope towards the left.


I'll admit these scores have issues. Any attempt to quantify ideology will. However, I think Alito joining had an impact though it can't explain the larger trends.

Okay, but you really aren't getting it though; You are not engaging at all with the substance of what I'm saying about the scores. I am not denying that judges drift in their ideologies over time; of course they do. And I have no problem with the idea that Kennedy "softened" over time and moved leftward on some issues. But you are trying to use these scores to say that Kennedy was a liberal because look where he falls on this graph, and that is just categorically not how these scores work.

The point about Alito and Scalia is to illustrate how these scores work, not to explain everything on the graph. Please... please.... please try and understand what these scores are measuring. You just are not able to honestly draw these kind of conclusions. As simply as possible:

1) MQ Scores measure where a justice is relative to other members of the court, not to some objective measure of "liberal/conservative."
2) They can tell you where a justice sits compared to their peer justices. They very accurately tell you that Kennedy was in the center of the court when he retired. They cannot tell you about an objective change in personal jurisprudence because the actual "liberal/conservative" center of the court might be wildly different between 1988 and 2016.
3) ASSUME A COMPLETELY CONSISTENT RIGHT-OF-CENTER JUSTICE WHO NEVER CHANGES THEIR IDEOLOGY: If the rest of the court gets more conservative overall, whether through new appointments (Alito) or political considerations (Deference to the War on Terror, Reagan Love, whatever), the consistent right-of-center judge moves "left" on the Martin-Quinn scale. This does not make them a "liberal."

I feel like I am taking crazy pills. Do you legitimately believe Scalia become much more of a centrist in the last 10 years? This strikes me as a facially absurd thing to think. The man was nothing if not consistent.

 

[Metaphysicist]

DHS v Regents is so much more than that. You missed the biggest thing in that case. Don't worry, the only other person I saw notice it was the editor of SCOTUSBlog. The first question, before even getting to Trump's reasoning for ending DACA, was whether the case was reviewable at all. The Obama administration's position in creating DACA was that it was that refusing to prosecute immigration actions was an exercise of executive discretion and so was not subject to judicial review. Trump argued also that his deciding to start prosecuting immigration actions was also an exercise of executive discretion and so not reviewable. The court disagreed. The court said that this wasn't a prosecutor deciding not to prosecute an individual case (which would be discretion), Trump's decision was part of a program affecting thousands of cases and so was not a matter of executive discretion.

The same logic applies to DACA's creation which is why it's ultimately doomed. That one decision took away the idea that a President can set up a program selectively enforcing laws based on "allocation of executive resources" and that it's just the President's discretion. It was a massive rollback of executive authority. Much larger than any authority granted under other cases.

I disagree with your characterization of the relative gravity of the threshold decision in Regents, so let's just agree to disagree. I would agree with you that this definitely puts him to the left of Alito re: executive deference, but that's not really saying much. On the other hand, again, the Seila Law holding is undeniably not "left of center." Destroying removal protections is going to have much more impact that subjecting DOJ to the arbitrary and capricious standard.

Are you referring to the doctrine of "equal sovereignty"? The idea that the Federal government can't single out states of disparate treatment? If so, it's hardly a new idea. It has its roots in the Equal Footing Doctrine, the idea that all states, new and old, must be on equal footing under the Constitution. It's just a new face on a very old principle.

You cannot be serious with this. Yes, that is a great regurgitation of what Roberts wrote; now try and think about how that "principle" would apply to like any other law ever passed.

Roberts crossing the aisle in the ACA case was far more than any judge on the left side of the court has done in living memory.

Again you cannot be serious. Breyer and Kagan crossed the aisle in that case.

 

[Metaphysicist]

As for the dissent in Obergfell, it was based largely on federalism.

Who cares what he said it was based on? You think Anthony Kennedy didn't believe in "federalism"? These retrograde conservative opinions are always based on "federalism" or "separation of powers" or "separate state sovereignty" some other vague, ill-defined constitutional rule not-actually-written-anywhere that conveniently leads to the outcome they want.

 

[Metaphysicist]

Ah! I found the article I was thinking of. This 538 piece does a much better rundown on how Kennedy actually voted over time (though you have to take a huge grain of salt for any "ideology" measurements, they aren't using Martin-Quinn and there is much more actual analysis in the article).

Justice Kennedy wasn't a moderate.

This why the Kavanaugh appointment wasn't as big a change as some folks thought it would be, whereas ACB is gonna really make things different.

 

[striker42]

Before Regents I considered the growth of presidential discretion to be terrifying. Suppose Trump wanted to gut environmental regulations so he sets up the "America First Initiative". Under this he orders the EPA to halt all enforcement actions against American owned companies or companies employing a certain number of Americans. If deciding which cases to pursue was purely a matter of presidential discretion, Trump could do that. He could allow businesses to dump radioactive waste in waterways without concern for the EPA. Eliminating schemes of non-enforcement has cut the legs out from under such ideas. A President cannot, by executive order, retroactively veto acts of congress. This is way farther reaching than just the DOJ or DHS. Pretty much every executive agency has some kind of power to enforce regulations.


First, your assertion was that Roberts made up the doctrine of Equal Sovereignty. He didn't. He expanded an existing doctrine and applied it to a new circumstance. Lawyers argue for new applications of existing legal theories or doctrines all the time. That's not the same as inventing a new doctrine.

Second, equal sovereignty is not equal treatment. State Sovereignty in the legal sense is the right to self government. The SCOTUS has long held that we are a Union of "States equal in local governmental power." So equal sovereignty doesn't apply anytime states are treated differently. It only applies when States are given more or less power to regulate themselves. So when one State is given a free hand in regulating their own elections and another is not, then you have an issue with equal sovereignty.

I think the problem is that Roberts did a ridiculously poor job of explaining the basis for equal sovereignty. He just took it as axiomatically true.

Kagan and Breyer only crossed on the issue of Medicaid expansion. That was hardly the heart of that case and nowhere near as important as Roberts crossing. Roberts was the sole conservative to cross and had he not done so the whole thing would have been blown up. It's the difference between someone saving your life and someone giving you some money to make rent. Both are doing something for you but they are not equal. Here, both are crossing of ideological lines but are not the same.

Honestly, in a different context the medicaid expansion might have been a 9-0 decision. The coercive use of federal funding isn't a particularly ideological topic.

 

[cajunrevenge]

https://lawandcrime.com/supreme-cou...-preemptively-striking-against-court-packing/


Ted Cruz suggested they just stick with 8 justices if Hillary won the electoral college.

 

[goldfly]

Yeah, republicans don’t care about ****ing with the court


It’s why the “pack the courts” rhetoric is funny

 

[striker42]

https://lawandcrime.com/supreme-cou...-preemptively-striking-against-court-packing/


Ted Cruz suggested they just stick with 8 justices if Hillary won the electoral college.

What an idiot.

 

[striker42]

Roberts crossed over again yesterday and voted with the 3 liberals to deny a request for a stay of the PA Supreme Court's order that mail-in ballots received up to 3 days after election day be counted. Five votes were required to grant the stay and it was a 4-4 so the stay was denied.

Again, attacking Roberts as reactionary is silly.

 

[nsacpi]

Roberts crossed over again yesterday and voted with the 3 liberals to deny a request for a stay of the PA Supreme Court's order that mail-in ballots received up to 3 days after election day be counted. Five votes were required to grant the stay and it was a 4-4 so the stay was denied.

Again, attacking Roberts as reactionary is silly.

Since states make laws governing elections (within a framework set forth in the constitution) isn't it a form of judicial activism for the four justices voting to review this case not to defer to the Pennsylvania Supreme Court in this case?