SCOTUS opinion watch

[bedstuy]

Here we go again. SSM, AZ Commission, EPA regulatory standards as to whether costs have been adequately taken into account, lethal injection, armed career criminal act (Johnson). The speculation is that Scalia will say costs matter as to the EPA case, lethal injection held Constitutional, and Johnson is supposed to be a no brainer (I am not sure which way, and really don't know that case), and then SSM and AZ commission, with which we are all familiar.

And we have ... SSM! Kennedy. 14th amendment requires a state to "recognize" a marriage that was performed out of state. So it is a narrow decision as I expected, but Roberts does not sign on, which is unexpected to me. It's a 5-4 decision, usual block. Each of the 4 dissenting judges wrote their own dissent. the opinion is not in a booklet form, either because it was too thick and/or it was finished too recently.

One more box left. SSM took up three boxes all by itself! My oh my.

Huh?

[Classic Conservative]

Opinion states that religious institutions have a right to advocate against same sex marriage.

[t_host1]

 Dissent, opposition and societal decay have been upheld, dealing with it is part of the package of liberty. 

[Blair]

 Dissent, opposition and societal decay have been upheld, dealing with it is part of the package of liberty. 

what?

[Classic Conservative]

Second one Johnson vs. U.S., Scalia writes the majority its 8-1

[Gass3268]

 Dissent, opposition and societal decay have been upheld, dealing with it is part of the package of liberty. 

Jao?

[Simfan34]

This is a footnote in Scalia's dissent:

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I can't wait to read the whole thing!

[Simfan34]

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[Simfan34]

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[Torie]

Here we go again. SSM, AZ Commission, EPA regulatory standards as to whether costs have been adequately taken into account, lethal injection, armed career criminal act (Johnson). The speculation is that Scalia will say costs matter as to the EPA case, lethal injection held Constitutional, and Johnson is supposed to be a no brainer (I am not sure which way, and really don't know that case), and then SSM and AZ commission, with which we are all familiar.

And we have ... SSM! Kennedy. 14th amendment requires a state to "recognize" a marriage that was performed out of state. So it is a narrow decision as I expected, but Roberts does not sign on, which is unexpected to me. It's a 5-4 decision, usual block. Each of the 4 dissenting judges wrote their own dissent. the opinion is not in a booklet form, either because it was too thick and/or it was finished too recently.

One more box left. SSM took up three boxes all by itself! My oh my.

Huh?

Well, I thought it would be narrow when the holding was about states recognizing out of state marriages, rather than having to license them themselves, thus a right to travel sort of thing, but then we got all that soaring living Constitution rhetoric out of Kennedy, and so yes, it's the precise opposite of narrow in its reasoning. And I don't know, giving all of that rhetoric, why they didn't hold that Mississippi (to pick a state not at random) needs to start itself issuing marriage licenses tomorrow to couples of the same sex (as opposed to merely recognizing out of state SSM). Maybe that is the implication, and the court just dealt with the facts of the case. But it's weird. And I am not a fan of living constitution approaches, unless clearly called for in the text, ala say what cruel and unusual punishment means, which clearly relies on current sensibilities about what is deemed cruel and unusual now, as opposed to when the text was written.

Or maybe Scotusblog got it wrong when it started off saying what was in the case. I was relying on them. Addendum: Scotusblog was indeed wrong. I revised my prior post accordingly with an addendum.

[afleitch]

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It's cute he thinks hippies are still around enough to find one close by.

[Antonio the Sixth]

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It's funny how he didn't make a similar argument when striking down campaign finance regulations...

[Torie]

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It's funny how he didn't make a similar argument when striking down campaign finance regulations...

That's not a cultural divide issue, which was Scalia's point. The Court is more diverse as to background, on non cultural issues arguably.

[Attorney General, LGC Speaker, and Former PPT Dwarven Dragon]

Scotusblog notes the following:

- The ruling goes out of its way to not mention a standard of scrutiny. It also does not declare gays to be a suspect class.
- The ruling seems written in a way where it cannot be easily expanded to become an argument in favor of allowing other non-traditional unions.
- While some county clerks are already beginning to issue SSM licenses, lower courts may have to step in to enforce the ruling in certain states/counties.

-----------

It is time to recognize that this is settled law. While I agree with Justice Roberts' dissent that there is no right to SSM in the Constitution, the fight against SSM is over. The fight against Polygamy begins tomorrow.

[muon2]

I found Roberts' SSM dissent interesting after his opinion on the ACA yesterday. He seems to have a very clear personal philosophy about what constitutes judicial activism. In King he goes on at length to say that the legislative intent as read in its voluminous text has more weight than the desire to reach a narrow textual conclusion based on a justice's desired outcome (observers have noted that one could find for either position by skillful use of limited parts of the text). In Obergefell he points at the intent of the legislatures and popular referendums of the states as the source of weight, not the philosophical desire of the justices. In the first case he ends up returning to an older style of statutory interpretation, but in the second case it causes him to decry a majority that returns to an older interpretation of substantive due process.

[bedstuy]

Muon, I think it's not surprising that a conservative justice thinks differently about the Constitution differently from a law passed a few years ago. 

The Obamacare case was about statutory interpretation.
The gay marriage case was about substantive due process and whether or not you view LGBT people as equal human beings.

[muon2]

Muon, I think it's not surprising that a conservative justice thinks differently about the Constitution differently from a law passed a few years ago. 

The Obamacare case was about statutory interpretation.
The gay marriage case was about substantive due process and whether or not you view LGBT people as equal human beings.

In both cases he was writing in a way that seems to oppose to judicial activism by means of preserving the maximum role for the legislative process. After reading both opinions and the main dissents, I think he sees the whole question of judicial activism differently than his colleagues on either side. It seems like a blend of modern ideas and older ideas that had fallen out of favor, and clearly not the way Scalia sees it.

[Attorney General, LGC Speaker, and Former PPT Dwarven Dragon]

Per http://www.lgbtqnation.com/2015/06/a-nation-reacts-travis-county-texas-to-begin-issuing-same-sex-marriage-licenses/,

The losing side in the case has 3 weeks to ask for reconsideration.

[○∙◄☻¥tπ[╪AV┼cVê└]

I found Roberts' SSM dissent interesting after his opinion on the ACA yesterday. He seems to have a very clear personal philosophy about what constitutes judicial activism.

If you consider striking down a century old Montana campaign finance law to not be judicial activism.

[🐒Gods of Prosperity🔱🐲💸]

Kennedy's opinion made an excellent argument for gay marriage as being a good thing, while being generally respectful of the other side.

However, I was looking to be convinced by him that there was a Constitutional requirement for gay marriage to be recognized, and he didn't do it for me.   Roberts is right that he sidesteps the foundational question of how marriage is defined and who defines it. The dissents did a pretty good job I thought of arguing that the majority's opinion was based on a very far-reaching understanding of the Court's role when it comes to substantive due process.

[○∙◄☻¥tπ[╪AV┼cVê└]

LOL at Alito trying to stick it to gun nuts in a lone dissent.

[Antonio the Sixth]

Kennedy's opinion made an excellent argument for gay marriage as being a good thing, while being generally respectful of the other side.

However, I was looking to be convinced by him that there was a Constitutional requirement for gay marriage to be recognized, and he didn't do it for me.   Roberts is right that he sidesteps the foundational question of how marriage is defined and who defines it. The dissents did a pretty good job I thought of arguing that the majority's opinion was based on a very far-reaching understanding of the Court's role when it comes to substantive due process.

I haven't read the opinions yet, but I get the same feeling. I'm really curious to see the detail of the arguments on both sides.

[Torie]

Glossip, the injection case en route to execution. 5-4 usual block. Alito, with Roberts and Kennedy joining the opinion. Scalia concurs, as does Thomas (joined by Scalia); Breyer dissents, joined by RBG. The Court rules that the death-row inmates have failed to establish a likelihood of success on the merits on their claim that the use of midazolam violates the Eighth Amendment. Sotomayor dissents, joined by RBG, Breyer, and Kagan. No surprise this one from the oral arguments. Oklahoma death-row inmates have challenged the state’s use of midazolam, arguing that it cannot reliably render an inmate unconscious.

Inmates argued that other drugs could be used, the Court said they were unavailable. Inmates said they should not have to plead that there was an alternative, Court said yes they did. So I guess the theory is that it is OK to use what is available, even if not ideal.

Breyer and RBG wanted broader briefing as to whether the death penalty is Unconstitutional. They were 3 votes short to go there. Scalia and Thomas in their concurring opinions trash the desires of Breyer and RBG regarding exploring nixing the death penalty.

Sotomayor and Breyer reading their dissents, meaning that they are particularly unhappy with the Court's decision. Now Scalia regarding his concurring opinion about his unhappiness with Sotomayor's and Breyer's qualms about the death penalty. Lots of emotion out there ... again.

Glossip opinion.

AZ commission survives! 5-4. Ginsburg. Usual block yet again, with Kennedy joining the liberals. So the activity level on the demographics board will not get a spike up. All those maps of AZ and CA that were drawn can now be thrown in the trash. Here is the opinion. This decision surprises me, although I am not totally shocked.

"From the final paragraph of the majority opinion: "The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have “an habitual recollection of their dependence on the people.” The Federalist No. 57, at 350 (J. Madison). In so acting, Arizona voters sought to restore “the core principle of republican government,”
namely, “that the voters should choose their representa­tives, not the other way around.” Berman, Managing Gerrymandering, 83 Texas L. Rev. 781 (2005). The Elec­tions Clause does not hinder that endeavor."

Scalia strikes again with his bon mots: Scalia says he would dismiss for lack of jurisdiction, but that the majority's opinion is so "outrageously wrong" that he cannot avoid joining the Chief's dissent.

Odds are Scalia then is writing the EPA decision, Utility Air, about whether the EPA has adequately taken into consideration the cost factor. And he does indeed, in 5-4 usual block vote, reversing the DC Circuit. The EPA must consider costs before deciding whether regulation is appropriate and necessary; it will up to the agency to decide, within limits of reasonable interpretation, how to account for costs.  Unlike the AZ commission case, this result was expected.

Court granted cert in Fisher: The question presented in the case was this: Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin.  So more fun stuff coming next term.

I am going now, but one comment. When I heard Justice Kagan speak at the U of Michigan, in response to a question about whether the predictable block voting in high profile cases was a problem when it came to the credibility of the Court, she said, yes indeed it was. I most certainly agree with her. This term shows no abatement whatsoever in that syndrome. If I were in the Senate, at a confirmation hearing for a SCOTUS nominee, I would focus in on this issue like a laser beam. I would ask, is there any reason to believe that you would not be just another block voter? What can you say to give me some comfort that your votes will not be close to utterly predictable?

Oh, one final thing. Court adjourns. No retirements announced. There was some modest buzz about that possibility. It isn't happening.

[Gass3268]

The Notorious RBG strikes again!

[JerryArkansas]

Holy crap, that was completely unexpected.