The Supreme Court's sloppiness reveals its radicalism

[marmar]

The Supreme Court's sloppiness reveals its radicalism
So much for "balls and strikes" — Trump's Supreme Court exposes its radicalism with "Remain in Mexico" decision

By AMANDA MARCOTTE
PUBLISHED AUGUST 25, 2021 1:21PM


(Salon) Donald Trump appointed three Supreme Court justices, and progressive America's reaction to the last two — Brett Kavanaugh and Amy Coney Barrett — can fairly be described as "Defcon 1." Liberals were terrified that these appointments, meant to replace the occasionally-liberal-on-social-issues Anthony Kennedy and the solid liberal Ruth Bader Ginsburg, would give the right exactly what they wanted: The ability to gut any progressive policy, impose their far-right views, and undermine democracy for decades, all without any accountability to the public.

Both Kavanaugh and Barrett denied this intention, of course.

Kavanaugh claimed to be "a neutral and impartial arbiter who favors no litigant or policy." Barrett claimed, "I'm just here to apply the law." Needless to say, progressives were not convinced. When Joe Biden was elected, there was even a brief flare-up of discourse about Democrats embracing court-packing to counter the far-right Court with Biden even appointing a commission to study the question.

But it is a truism in mainstream media that progressives are always "overreacting," a truism that persists despite events like the January 6 insurrection, which conclusively proved #resistance folks had a better read on Trump than the "it can't happen here" naysayers. So all it took was the Roberts court issuing a couple of early summer moderate decisions — the biggest saving the Affordable Care Act — and voila! The Beltway media went full bore scolding the left for supposedly overreacting to the Trumpist court.

"The Supreme Court's Newest Justices Produce Some Unexpected Results," declared the New York Times, with a subheadline gushing how "liberals are often on the winning side."

....(snip)....

On Tuesday night, in a shockingly incoherent decision, the Supreme Court upheld a lower court ruling by a Trump-appointed far-right judge, Matthew Kacsmaryk, forcing the Biden administration to keep Trump's hateful "remain in Mexico" policy towards refugees applying for political asylum. Biden may be the duly elected president, but it appears this Trump appointee-heavy Republican court still thinks Trump should be setting immigration policy. ........(more)

https://www.salon.com/2021/08/25/the-supreme-courts-sloppiness-reveals-its-radicalism/

[onenote]

1. I'm not sure this constitutes a "shockingly incoherent" decision.

It's fairly typical for orders denying stay requests to be summary in nature. Here's the entire order:


The application for a stay presented to Justice Alito and by him referred to the Court is denied. The applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious. See Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___ (2020) (slip op., at 9- 12, 17-26). Our order denying the Government’s request for a stay of the District Court injunction should not be read as affecting the construction of that injunction by the Court of Appeals.

Justice Breyer, Justice Sotomayor, and Justice Kagan would grant the application.

The citation is to the Court's decision last year striking down Trump's reversal of Obama's DACA order on APA arbitrary and capricious grounds.


Surprised that Breyer, Sotomayor, and Kagan didn't offer any explanation as to how this case is distinguishable from the DACA case.

[FBaggins]

2. My first response as well

How can it be "sloppy" and "shockingly incoherent" when it's a single paragraph in essentially the same form as every other denial of an emergency stay?

One could reasonably question why the court wouldn't extend the same deference to the administration pending appeal that they did for the prior administration so frequently... or question how clear it was that they would fail on the merits (I think likely... but not so much so as to explain that lack of deference)... but there was nothing shocking or sloppy. Let alone Mark Joseph Stern's "one of the most lawless things SCOTUS has ever done."

[UnderThisLaw]

3. The usual suspects

are starting their talking point circle jerk already

[Baitball Blogger]

4. There was one case where Kavanaugh was disciplined by Roberts.

Does anyone remember that? Kavanaugh was showing his bias way too early and made a decision on an irrational basis and Roberts disciplined him. One of those articles I meant to get back to, and never did.

Does anyone remember it and have a link or keywords that might work with a search?

[leftstreet]

5. I thought Roberts referred the complaints to a different court?

Sounds familiar, but I'm not sure

EDIT: forget that - I'm thinking of something else

[FBaggins]

7. Those accusations were dismissed

There were 80+ ethics complaints, but both panels that reviewed the accusations agreed that they had no jurisdiction.

[FBaggins]

6. Doesn't ring a bell

How does the CJ “discipline” a justice anyway? Take away his dessert privileges in the dining room?

[Baitball Blogger]

8. Public scolding.

[FBaggins]

9. Ah. Then you're probably thinking of this:

https://slate.com/news-and-politics/2020/05/supreme-court-coronavirus-california-churches.html


Hardly "discipline", but court watchers love to spin dissents as "scolding" or " spanking" or "chastising".

Unfortunately for Roberts - Kavanaugh ended up winning that battle and the court has now given the 9th circuit a "public scolding" half a dozen times on the same issue in California.

[Baitball Blogger]

10. Yes! That's the one! Thank you!

If Kavanaugh got his way, it means that they are alright with culling their own, because no one is that stupid.

It is disconcerting to know the details of Kavanaugh's decision, because it shows he's a zealot and doesn't have the objectivity required to be a Supreme Court Justice, and even less, doesn't have the chops to dig deep and research a proper legal argument.



“The precise question of when restrictions on particular social activities should be lifted during the pandemic,” Roberts declared, “is a dynamic and fact-intensive matter subject to reasonable disagreement.” The Constitution leaves such decisions “to the politically accountable officials of the state,” whose decisions “should not be subject to second-guessing” by judges who lack “background, competence, and expertise to assess public health.” Multiple coronavirus outbreaks in California have been traced back to religious services. California has good reason to treat churches more like concerts—where people “congregate in large groups” and “remain in close proximity for extended periods”—than grocery stores, where they can maintain social distance. For courts, that should be the end of the matter.

Kavanaugh, in dissent, viewed the case through a different lens. Whereas Roberts began by noting that COVID-19 has “killed thousands of people in California and more than 100,000 nationwide,” Kavanaugh crafted a narrative of invidious religious discrimination. His dissent reads like a brief by the church, not a judicial opinion. Kavanaugh alleged that Newsom’s order “indisputably discriminates against religion” in violation of the free exercise clause. For support, the justice insisted that “comparable secular businesses,” like grocery stores and pharmacies, “are not subject” to the same restrictions imposed on churches. California must have a “compelling justification” for this disparate treatment, and he saw none.

But Kavanaugh’s assertion that California treats churches and “comparable secular businesses” differently raises the question: What is a comparable secular business? When it comes to the spread of infectious disease, is a church really just like a grocery store, where people spend as little time as possible, separated by aisles and shopping carts, rarely speaking to one another? Or is it more like a concert, where people congregate for lengthy periods, shoulder to shoulder, often speaking or singing and thereby spreading droplets that may contain the coronavirus?

What is genuinely shocking about Kavanaugh’s dissent is that he does not even address this question. The dispute lies at the heart of the case, and Kavanaugh ignores it. He simply takes it as a given that churches are “comparable” to grocery stores when it comes to risk of spreading COVID-19. By warping the facts, Kavanaugh paints California’s rules as irrationally discriminatory, when in fact they are based on medical advice Newsom has right now. If the justice wants to override public health measures during a pandemic, shouldn’t he at least admit that he’s substituting his own scientific judgment for that of a democratically elected lawmaker’s?

[lagomorph777]

11. SCROTUS may "allow" the Trump policy, but Biden can reverse it.

This won't be the most catastrophic case this court reaches judgment on.

[scipan]

12. The Supreme Court's stunning, radical immigration decision, explained

The Court’s decision on Trump’s “Remain in Mexico” policy upends decades of precedent warning that judges shouldn’t mess with foreign affairs.

By Ian Millhiser on August 24, 2021 9:47 pm

The Supreme Court handed down an order Tuesday evening that makes no sense.

It is not at all clear what the Biden administration is supposed to do in order to comply with the Court’s decision in Biden v. Texas. That decision suggests that the Department of Homeland Security committed some legal violation when it rescinded a Trump-era immigration policy, but it does not identify what that violation is. And it forces the administration to engage in sensitive negotiations with at least one foreign government without specifying what it needs to secure in those negotiations.

One of the most foundational principles of court decisions involving foreign policy is that judges should be extraordinarily reluctant to mess around with foreign affairs. The decision in Texas defies this principle, fundamentally reshaping the balance of power between judges and elected officials in the process.

(Snip)

The decision upends the balance of power between the elected branches and the judiciary. It gives a right-wing judge extraordinary power to supervise sensitive diplomatic negotiations. And it most likely forces the administration to open negotiations with Mexico, while the Mexican government knows full well that the administration can’t walk away from those negotiations without risking a contempt order.

https://www.vox.com/2021/8/24/22640424/supreme-court-remain-in-mexico-trump-biden-samuel-alito-immigration