There's a direct connection between the justices' willingness to open courthouse doors to certain litigants and a merits docket with so many culture-war disputes from specific parts of the country.
Thank you for giving more detailed coverage of the court's cases last week, in lieu of the "Long Read". I enjoy reading about the cases.
Three notes about Stanley v City of Sanford
1. You misspelled Sanford (no T)
2. I was also thinking about the Thomas concurrence and Dobbs. I think he might argue that in Dobbs, the added merits question was at least relevant to the initial question. After all, overturning Roe was one way to resolve the question the court granted cert on! Whereas the question Stanley added was truly orthogonal to the question granted - resolving one didn't resolve the other.
(Also - interested to see if Alabama try the same trick in Hamm v Smith.)
3. You said there would be five votes for Part III's conclusion, which is correct, but of course Jackson didn't actually join Part III so it isn't the law (yet). I found Jackson's opinions on Friday very interesting. Her disinterest in counting to 5 + frequent solo dissents reminds me of a certain *other* justice.
I'm not a lawyer and I'm not fluent in law, but I am trans and the Skrimetti case was a big indicator to me as to which way this country is going to go when it comes to human rights, which we're already seeing the degradation of for immigrants. The majority went out of their way to rule against trans people, bending logic and putting the government solidly into the private medical decisions of families. Between this and overturning Roe v Wade, bodily autonomy exists in this country at the whims of the states, and we'll see that tested when the federal government applies pressure on states by withholding federal money (as we saw the withholding of aid & supplies to blue states during Covid). Again, not a lawyer, but my understanding is that withholding federal funds in this way constitutes a violation of the parameters established in South Dakota v Dole.
All the Supreme Court justices in Roe v. Wade recognized that the question was how to balance the rights of the mother and those of the "potential life" developing within her. After long deliberation, the majority concluded that post-viability, the rights of the developing child become compelling.
These days, the language used by abortion advocates, such as "bodily autonomy", focuses solely on the woman, ignoring the very existence of the "potential life". That one-sided approach typifies the differences between present-day liberalism and the liberalism of the '60s and 70s.
[Apologies for the length of this comment (it's a question; I have no legal training or experience).]
The discussion in United States v. Skrmetti references Bostock v. Clayton County, which involved a company that discriminated against homosexuals. The question in Bostock was whether that constitutes discrimination because of the individual's sex (male versus female). The Court said that the but-for causation standard applies, so they should hypothetically “change one thing at a time and see if the outcome changes." The one thing to hypothetically change is the individual's sex, while leaving other conditions unchanged.
The two sides (call them A and B) use different but logically equivalent definitions of homosexuality, and applying the but-for test using these definitions leads to opposite conclusions. Rather than concluding that one side is right and the other wrong, it seems to me (no legal training) that this reveals a fundamental flaw in the "but-for" test that the Court should resolve (if possible); otherwise we're left with a non-deterministic form of justice for these kinds of questions.
Is this a well-known conundrum? Has any court provided guidelines for how to implement the "but-for" causation test to avoid this ambiguity?
Specifics: For side A the "other condition" is "attracted to members of the same sex", while for side B it's "male and attracted to men or female and attracted to women".
Using side A's phrasing, if we have, say, a homosexual man - a male attracted to the same sex, and imagine that he's female instead, while leaving the second condition unchanged, we get a female attracted to the same sex - a homosexual woman. Likewise for other cases. The outcome of the company's policy doesn't change, so we conclude that the policy does not discriminate because of the individual's sex.
Using side B's phrasing for the same example, we have a male attracted to men, and imagining that he's female instead, we get a woman attracted to men - a heterosexual woman. This does change the outcome, so we conclude that the policy discriminates because of the individual's sex.
Thank you for giving more detailed coverage of the court's cases last week, in lieu of the "Long Read". I enjoy reading about the cases.
Three notes about Stanley v City of Sanford
1. You misspelled Sanford (no T)
2. I was also thinking about the Thomas concurrence and Dobbs. I think he might argue that in Dobbs, the added merits question was at least relevant to the initial question. After all, overturning Roe was one way to resolve the question the court granted cert on! Whereas the question Stanley added was truly orthogonal to the question granted - resolving one didn't resolve the other.
(Also - interested to see if Alabama try the same trick in Hamm v Smith.)
3. You said there would be five votes for Part III's conclusion, which is correct, but of course Jackson didn't actually join Part III so it isn't the law (yet). I found Jackson's opinions on Friday very interesting. Her disinterest in counting to 5 + frequent solo dissents reminds me of a certain *other* justice.
"Exhale" indeed. That was like speed dating.
Well written and clear explanation Steve ! Thanks
I'm not a lawyer and I'm not fluent in law, but I am trans and the Skrimetti case was a big indicator to me as to which way this country is going to go when it comes to human rights, which we're already seeing the degradation of for immigrants. The majority went out of their way to rule against trans people, bending logic and putting the government solidly into the private medical decisions of families. Between this and overturning Roe v Wade, bodily autonomy exists in this country at the whims of the states, and we'll see that tested when the federal government applies pressure on states by withholding federal money (as we saw the withholding of aid & supplies to blue states during Covid). Again, not a lawyer, but my understanding is that withholding federal funds in this way constitutes a violation of the parameters established in South Dakota v Dole.
All the Supreme Court justices in Roe v. Wade recognized that the question was how to balance the rights of the mother and those of the "potential life" developing within her. After long deliberation, the majority concluded that post-viability, the rights of the developing child become compelling.
These days, the language used by abortion advocates, such as "bodily autonomy", focuses solely on the woman, ignoring the very existence of the "potential life". That one-sided approach typifies the differences between present-day liberalism and the liberalism of the '60s and 70s.
[Apologies for the length of this comment (it's a question; I have no legal training or experience).]
The discussion in United States v. Skrmetti references Bostock v. Clayton County, which involved a company that discriminated against homosexuals. The question in Bostock was whether that constitutes discrimination because of the individual's sex (male versus female). The Court said that the but-for causation standard applies, so they should hypothetically “change one thing at a time and see if the outcome changes." The one thing to hypothetically change is the individual's sex, while leaving other conditions unchanged.
The two sides (call them A and B) use different but logically equivalent definitions of homosexuality, and applying the but-for test using these definitions leads to opposite conclusions. Rather than concluding that one side is right and the other wrong, it seems to me (no legal training) that this reveals a fundamental flaw in the "but-for" test that the Court should resolve (if possible); otherwise we're left with a non-deterministic form of justice for these kinds of questions.
Is this a well-known conundrum? Has any court provided guidelines for how to implement the "but-for" causation test to avoid this ambiguity?
Specifics: For side A the "other condition" is "attracted to members of the same sex", while for side B it's "male and attracted to men or female and attracted to women".
Using side A's phrasing, if we have, say, a homosexual man - a male attracted to the same sex, and imagine that he's female instead, while leaving the second condition unchanged, we get a female attracted to the same sex - a homosexual woman. Likewise for other cases. The outcome of the company's policy doesn't change, so we conclude that the policy does not discriminate because of the individual's sex.
Using side B's phrasing for the same example, we have a male attracted to men, and imagining that he's female instead, we get a woman attracted to men - a heterosexual woman. This does change the outcome, so we conclude that the policy discriminates because of the individual's sex.
It is hard to reconcile Justice Jackson's footnote 12 with a favorable view of Justice Gorsuch's Bostock opinion.
BORING