If you lose 9-0 in the Supreme Court, and your expected side (in this case, progressives) is the one writing the opinion, you should have known you were going to lose, and you messed up letting it get to the point where it was even presented to the Supreme Court.
Probably, but it's hard to predict what kind of negotiations the judges do to come to specific outcomes. SCOTUS isn't an apolitical body despite how it would like to be viewed, both in terms of the idealogical bent of the court AND the horse trading that naturally happens because these are colleagues who have to work repeatedly over a long period of time.
Why do you say that? They battled FDR over the New Deal for example which was more political than any kind of principled analysis of the law. Here's an article from 2023 alluding to negotiations within the court [1]
> decisions issued this month have shown several cross-ideological alliances and likely reflected negotiations among small factions.
Not sure where you get that this isn't supposed to happen. Indeed, negotiation is expected largely because you'd think that judges would sacrifice their personal politics to enact decisions or communicate them in a way to strengthen the overall institution.
Negotiation, "I'll give you this for that", is very different from legal argument, "This is my interpretation of the law, and I will explain why it is correct." Some may call that negotiation of opinion, but I think there is an important distinction. I seriously doubt they are doing the former.
That's effectively the judges arguing merits amongst themselves. I would actually think this a good thing. "I'll give you a paid vacation in a posh RV and flights on a private jet" is absolutely a totally different animal.
Arguing about correct interpretation of the law with colleagues is absolutely not the same thing as "horse trading" and I doubt much of that goes on. There is usually a majority opinion and a minority opinion and sometimes 3 or more opinions. "horse trading" would be considered beneath the court by every justice and negotiating rather than arguing your case would be considered the pinnacle of unprofessionalism.
I'm not talking about arguing about the interpretation of the law. I'm talking about things like negotiating what arguments go into a majority opinion and which are left for a minority, which case gets picked to be heard. Potentially even settling how a close decision might break by negotiating for joining one side or the other to get specific wording.
> If you lose 9-0 in the Supreme Court, and your expected side (in this case, progressives)
This is a pretty clear first amendment issue that shouldn’t divide among party lines. Party lines shouldn’t even be a thing in the SC, but unfortunately that ship has sailed. The law is clear about this so the “progressive” judges wrote their opinion about what the law says. That is more than can be said about some of the more conservative justices, who don’t really seem to care as much about what the law says rather than pushing personal/political/financial agendas.
Right, my main point being though that the expectation that a judge should rule for your "side" of the aisle is faulty and corrupt and not really a "progressive" thing. At least not from my recent recollection and I have a weird OCD habit of reading a lot of the denser text of these opinions.
I will say that Kavanaugh has been a surprising force on the court, tending to vote by what he thinks the law says, so I'm not trying to blame any specific party here, just individuals that I probably do not need to name because it has been so prominent in the news cycle the last few years.
What decisions would you recommend I read that demonstrate the conservative justices don’t care as much about the law rather than their political agenda? I make this claim all the time based on my instinct but always fall short when trying to demonstrate, what ruling led you to your conclusion?
Justice Roberts, for instance, has had wildly conflicting and inconsistent reasoning behind striking down the federal healthcare mandate over the years. A cynical person would conclude that may have a little to do with his friendships with healthcare executives that "loan" him many hundreds of thousands of dollars he didn't report. Just one example
I understand "tradition" can play a role in jurisprudence, but this is clearly a bit much.
Really to find super-obvious examples look at almost any judgement by Thomas, or Alito.
The others (Roberts,Kavanaugh, Coney-Barrett & Gorsuch have all been able to partly go against perceived partisanship now and then.
This doesn't mean that there isn't left-wing jurisprudence operated by the "progressive" side of the aisle, but generally (I feel) it's more rare. Maybe if the court were 6-3 in the other direction it would be similar, where a couple extremist outliers would consistently vote with a strong Partisan bias.
The weakening/overturning of the of federal oversight of the south's voting processes, which was originally mandated by the Voting Rights Act, is another one I would call pretty partisan. But that's just my view. YMMV.
Not a single decision, but Alito has never found a conservative lacked standing and always finds liberals lack standing. He is an outlier on this - Thomas isn’t as lopsided, nor are any of liberals on the court.
The thing is, you can always find a rationale for whatever answer you want. So the evidence here wouldn't be to look at one individual case and see an obviously bad argument. The evidence would be to ask, are there any cases where the judges ruled on principle against their political preferences?
Unfortunately I don't have exact cases, but there are many claims that conservative justices are very much "states rights" when it comes to things like abortion, but very much not "states rights" when it comes to things like gun control.
> Unfortunately I don't have exact cases, but there are many claims that conservative justices are very much "states rights" when it comes to things like abortion, but very much not "states rights" when it comes to things like gun control.
That is because of the incorporation of the bill of rights. The current interpretation of the 14th amendment is that some of the Amendments in Bill of Rights apply to both the federal and state governments.
The second amendment is one of those amendments (at least according to the conservative justices) and as such they should be protected at the federal level.
Abortion is not listed in the constitution and as such the 10th amendment takes precedence and the states can decide.
The more liberal justices do the same thing with amendments and come up with their own justification for which amendments are fully and partially incorporated.
> That is more than can be said about some of the more conservative justices, who don’t really seem to care as much about what the law says rather than pushing personal/political/financial agendas.
That can be said about justices on all parts of the political spectrum. For just a couple of examples of egregious decisions by liberal justices pushing their own agendas, see: Kelo v. New London, Wickard v. Filburn.
You say this case was a no brainer and only conservative judges would bodge something so obvious, but the fact of the matter is the Second Circuit royally fucked up this case in the ideologically predictable manner, which is the whole reason it went to the SCOTUS in the first place.
You're moaning about conservative justices ignoring the law for ideological reasons, in the discussion about a case which went to SCOTUS because progressive judges in the Second Circuit ignored the law. Gaslighting won't work on me, so you're wasting your time.
Marbury v. Madison was not corruption with parties. In fact to the contrary. It was a master move by Marshall to please both parties, and also established the principle of judicial review. In contrast to recent justices having a bias towards a party, Marshall managed to give both the Federalists and the Democratic-Republicans something they liked.
You are looking at it in a different way than I am. While Marshall was extraordinarily gifted in the ruling and gave both sides part of what they wanted, he ultimately gave the Federalists, which he was a member of, the long term victory.
He enshrined judicial review, which was very much up to debate, as a power the Supreme Court had. This power was then extended past federal laws into state laws. This is the exact thing that the Federalists wanted and the Democratic-Republicans opposed. Madison himself thought the congress should be able to veto state laws saying that it was "absolutely necessary to a perfect system".
The current crop of Supreme Court justices are no where near as talented so their decisions are more blatant and immediate. Marshall was able to look long term and got his party what they wanted.
Maybe. But it can also be a good tactical case to set precendent against your opponents.
Having the NRA as one of the parties puts the conservative wing of the court in a bind. They don't really want to limit this (Republicans like to be authoritarian), but they don't want it used as a cudgel against the NRA, either.
So, the progressives get the first amendment issues reaffirmed, and the conservatives have to protect the NRA.
Everything in the US, whether it should be or not, is divided at some level along ideological lines. It's awful. I hope we can find our way out of it while retaining a healthy, functioning democracy. And I don't think it's inaccurate to say that when the US suffers this way, it has an impact on the whole world. We can play a stabilizing role, but only when we are ourselves stable.
It may be rose colored glasses, but I don't remember it always being this way. Maybe it was right about the time Bork got nominated, but as I recall confirmation hearings used to be more of a rubber stamp. The president picked someone halfway decent, the Senate said sure that looks good, and there we go. But now it's completely ideological and the actual qualifications and judicial attitude of the nominee have practically no impact.
Doesn't help that some of the current justices believe strongly in originalism, which gives wide latitude towards interpreting what the founders must have been thinking.
And it really doesn't help that some of the justices are engaging in overtly partisan behavior in their off time. Used to be that the mere appearance of impropriety could sink your career, but that ship sailed a while ago.
Well, they should be impartial (and really compared to Congress or the White House they most definitely are), but they are appointed by the President (partisan) and approved (or not) by the Senate (partisan), so everyone knows which side they stand on. Not good, but it is how it is.
This probably won't be popular, but the U.S. Supreme Court isn't really partisan either. A lot of its cases don't involve partisan issues in any case, but a majority of all the cases are decided 9-0, like this one.
The perception that the court is partisan comes from a lot of press attention on a very small number of 5-4 cases on controversial issues where the majority has clearly used motivated reasoning. That was the case in both Roe v. Wade and the case that overturned it, Dobbs, for example. On the current court some justices are particularly notable for doing this (in my opinion Alito on the right and Sotomayor on the left).
But even in 5-4 cases the justices don't always split the way you'd think. The Bostock County decision that made gays and transgender people a federally protected class against job discrimination was written by a conservative justice. That same justice, Gorsuch, as known as an advocate of Native American treaty rights. The late Justice Scalia was an advocate of defendants' rights under the Fourth Amendment. The judges aren't predictable voters in the way senators are.
> and wanted to prevent civil servants saying negative things about the NRA
You should read some of the ruling, because that's absolutely not what happened. The civil servant can say anything she wants under her power as a private citizen. What she can't do is use the power of her office to impose her will on the industries she regulates, and that is what the Supreme Court said she did.
This is a preliminary-stage ruling. The Supreme Court said that the case can't be dismissed because if all the facts are as the NRA alleges, which they are required to assume at this stage, that would be what she did.
The case isn't over. It now goes back to the lower courts to determine if that is, in fact, what she did.
I'm under the impression that lopsided decisions are actually the more common outcome in cases before the supreme court. That it's the ideologically divided ones that are outliers, even if they garner most of the media attention. Is that incorrect?
Thank you for sharing that graph; it seems quite descriptive, knowing what we do about the ideological makeup of the court. That jump in 6-3 rulings stands out.
Sometimes it’s a political win to lose in court. For example, if your party is arguing for reform of the Supreme Court, it helps when the court fails to rule in your favor. Your base can interpret that as evidence that the court is broken and needs fixing.
Read the decision. All the court decided is the NRA has a basis to bring their suit (lower court dismissed the case). This now goes back to the lower court to be re-argued.
Exactly. People automatically associate NRA with the second amendment but in this case the court is just affirming a first amendment freedom. It says nothing about the court's actual attitude towards the second amendment.
I have such low expectations any more, that I pretty much expect the win to be spun in a way that does try using it as a vindication of the NRA in more than just first amendment when the news is spread of the win.
I don't care if it's speech around the second amendment, or around how male members of the Supreme Court conduct their deliberations while wearing pink tutus. It's protected speech.
The headlines are "court sides with NRA!" which fits the ongoing "illegitimate court" narrative for progressives because the NRA is unpopular. (Partly owing to "ew! guns!" and partly owing to other, unrelated legal trouble growing out of NRA leaders embezzling + offering an illegal insurance product.) But... this was about whether a government official could threaten arbitrary regulatory action against a firm's customers/vendors/partners because of that firm's constitutionally-protected advocacy. (And whether that had in fact happened in this case. 9-0 it did.)
And if you're the kind of person who is set off by that and can't abide NRA having a win, I'd ask if you want your favorite progressive advocacy organization to be able to have a bank account and an insurance policy in Texas and Florida.
This was not a close call or earth-shattering case.
This struck me as pretty obvious at the time. If the people have endowed the state with the authority to act on an issue, the state should act in an official manner. Otherwise, they should not act at all.
Here's hoping this gets applied liberally. End-running around the constitution by making private individuals or private enterprise do the things you can't do is such a bullshit loophole.
Hopefully this will mean that governments aren't allowed to request removal of twitter and facebook posts, like when the notoriously a-constitutional 9th circuit allowed California to remove twitter posts:
73 comments
[ 3.8 ms ] story [ 166 ms ] thread> decisions issued this month have shown several cross-ideological alliances and likely reflected negotiations among small factions.
Not sure where you get that this isn't supposed to happen. Indeed, negotiation is expected largely because you'd think that judges would sacrifice their personal politics to enact decisions or communicate them in a way to strengthen the overall institution.
[1] https://www.cnn.com/2023/05/15/politics/supreme-court-backch...
https://www.usatoday.com/story/news/politics/2024/05/27/soni...
This is a pretty clear first amendment issue that shouldn’t divide among party lines. Party lines shouldn’t even be a thing in the SC, but unfortunately that ship has sailed. The law is clear about this so the “progressive” judges wrote their opinion about what the law says. That is more than can be said about some of the more conservative justices, who don’t really seem to care as much about what the law says rather than pushing personal/political/financial agendas.
That's what OP is saying - someone wasted a ton of time and money on lawyers to receive a verdict that they should have known was coming.
I will say that Kavanaugh has been a surprising force on the court, tending to vote by what he thinks the law says, so I'm not trying to blame any specific party here, just individuals that I probably do not need to name because it has been so prominent in the news cycle the last few years.
I understand "tradition" can play a role in jurisprudence, but this is clearly a bit much.
Really to find super-obvious examples look at almost any judgement by Thomas, or Alito.
The others (Roberts,Kavanaugh, Coney-Barrett & Gorsuch have all been able to partly go against perceived partisanship now and then.
This doesn't mean that there isn't left-wing jurisprudence operated by the "progressive" side of the aisle, but generally (I feel) it's more rare. Maybe if the court were 6-3 in the other direction it would be similar, where a couple extremist outliers would consistently vote with a strong Partisan bias.
The weakening/overturning of the of federal oversight of the south's voting processes, which was originally mandated by the Voting Rights Act, is another one I would call pretty partisan. But that's just my view. YMMV.
https://adamunikowsky.substack.com/p/does-standing-follow-th...
Unfortunately I don't have exact cases, but there are many claims that conservative justices are very much "states rights" when it comes to things like abortion, but very much not "states rights" when it comes to things like gun control.
That is because of the incorporation of the bill of rights. The current interpretation of the 14th amendment is that some of the Amendments in Bill of Rights apply to both the federal and state governments.
The second amendment is one of those amendments (at least according to the conservative justices) and as such they should be protected at the federal level.
Abortion is not listed in the constitution and as such the 10th amendment takes precedence and the states can decide.
The more liberal justices do the same thing with amendments and come up with their own justification for which amendments are fully and partially incorporated.
That can be said about justices on all parts of the political spectrum. For just a couple of examples of egregious decisions by liberal justices pushing their own agendas, see: Kelo v. New London, Wickard v. Filburn.
When was it ever not corrupted with parties? Marbury v. Madison happened in 1803 so at most 15 years.
He enshrined judicial review, which was very much up to debate, as a power the Supreme Court had. This power was then extended past federal laws into state laws. This is the exact thing that the Federalists wanted and the Democratic-Republicans opposed. Madison himself thought the congress should be able to veto state laws saying that it was "absolutely necessary to a perfect system".
The current crop of Supreme Court justices are no where near as talented so their decisions are more blatant and immediate. Marshall was able to look long term and got his party what they wanted.
Having the NRA as one of the parties puts the conservative wing of the court in a bind. They don't really want to limit this (Republicans like to be authoritarian), but they don't want it used as a cudgel against the NRA, either.
So, the progressives get the first amendment issues reaffirmed, and the conservatives have to protect the NRA.
1. The NRA sued this official for First Amendment rights violations.
2. It went up through the courts, but importantly, the NRA lost in the Second Circuit.
3. The NRA then appealed that loss to the Supreme Court.
Even in a country like India with weaker rule of law, the courts and judges never take sides with political parties.
It may be rose colored glasses, but I don't remember it always being this way. Maybe it was right about the time Bork got nominated, but as I recall confirmation hearings used to be more of a rubber stamp. The president picked someone halfway decent, the Senate said sure that looks good, and there we go. But now it's completely ideological and the actual qualifications and judicial attitude of the nominee have practically no impact.
Doesn't help that some of the current justices believe strongly in originalism, which gives wide latitude towards interpreting what the founders must have been thinking.
And it really doesn't help that some of the justices are engaging in overtly partisan behavior in their off time. Used to be that the mere appearance of impropriety could sink your career, but that ship sailed a while ago.
Just because it's not explicitly stated doesn't mean it's not forced.
The perception that the court is partisan comes from a lot of press attention on a very small number of 5-4 cases on controversial issues where the majority has clearly used motivated reasoning. That was the case in both Roe v. Wade and the case that overturned it, Dobbs, for example. On the current court some justices are particularly notable for doing this (in my opinion Alito on the right and Sotomayor on the left).
But even in 5-4 cases the justices don't always split the way you'd think. The Bostock County decision that made gays and transgender people a federally protected class against job discrimination was written by a conservative justice. That same justice, Gorsuch, as known as an advocate of Native American treaty rights. The late Justice Scalia was an advocate of defendants' rights under the Fourth Amendment. The judges aren't predictable voters in the way senators are.
You should read some of the ruling, because that's absolutely not what happened. The civil servant can say anything she wants under her power as a private citizen. What she can't do is use the power of her office to impose her will on the industries she regulates, and that is what the Supreme Court said she did.
This is a preliminary-stage ruling. The Supreme Court said that the case can't be dismissed because if all the facts are as the NRA alleges, which they are required to assume at this stage, that would be what she did.
The case isn't over. It now goes back to the lower courts to determine if that is, in fact, what she did.
https://www.scotusblog.com/wp-content/uploads/2022/07/freque...
But it's expected that they wrote the easier opinions first and the remaining 30+ cases will be more contentious.
https://reason.com/volokh/2024/05/30/supreme-court-ot2022-at...
I'm wondering how this will impact the former DoJ "Operation Choke Point" activities.
The headlines are "court sides with NRA!" which fits the ongoing "illegitimate court" narrative for progressives because the NRA is unpopular. (Partly owing to "ew! guns!" and partly owing to other, unrelated legal trouble growing out of NRA leaders embezzling + offering an illegal insurance product.) But... this was about whether a government official could threaten arbitrary regulatory action against a firm's customers/vendors/partners because of that firm's constitutionally-protected advocacy. (And whether that had in fact happened in this case. 9-0 it did.)
And if you're the kind of person who is set off by that and can't abide NRA having a win, I'd ask if you want your favorite progressive advocacy organization to be able to have a bank account and an insurance policy in Texas and Florida.
This was not a close call or earth-shattering case.
https://reason.com/volokh/2023/03/13/no-first-amendment-viol...
How did the appeals court get it so wrong? Allegedly these are some of our best judicial minds that get elevated to the appeals courts, right?