Two procedural moves by the justices on Monday reinforce criticisms that the Court behaves differently in otherwise similar cases based solely on the ideological/partisan valence of the dispute.
If I recall my legal history, the Southern states didn't move for immediate issuance of the mandate in Brown v. Board of Education, so that they could immediately dismantle the unconstitutional segregation scheme and integrate the schools without waiting even a few weeks.
The southern states were not a party to Brown and could not move for anything. Here, this is quickly for R redraw attempts, notwithstanding that the election is underway. Go study your history
Roberts is not calling balls and strikes but is fixing the game for the conservative bettors. He is the judicial equivalent of Shoeless Joe but we lack a Kenesaw Landis.
That’s an insult to “Shoeless Joe Jackson” who did not change the excellence of his play in the field but did take the money and paid dearly for his sin! The Robert’s baseball analogy was always a red herring. You can’t be an umpire and a Commissioner or Owner. Immediate appearance of a conflict of interest. You can’t be an umpire when you never are actually in any game! At best you are the replay umpire in DC reviewing the limited challenges allotted to the teams in the field, who need answers within minutes not years. Unfortunately, those did not exist in baseball when Roberts was confirmed. So, he used what he thought was a mellifluous and comforting “fairness”metaphor that was misleading from the outset. Further, every Baseball player and manager knows you never win an argument with an umpire even if it feels good to argue with them. Roberts was a good lawyer, capable of moving an audience to see his point of view while deflecting from the main inquiry as to whether or not he was or would be a wise and careful Super Appellate Judge professionally married to a very Jealous spouse in the Law and the Constitution! Our Senate never makes that inquiry anymore and We ARE THE WORSE FOR IT!
Odd that the SCOTUS conservatives are so touchy! So quick to bristle over criticisms that they are too partisan, too opaque, too inconsistent … and consistently so.
Time for a reprise of Justice Coney Barrett's plaint re: "[...] she and her colleagues on the court are not a "bunch of partisan hacks,"...well, then, don't bloody well rule as if you are, ffs!
Justice Jackson's dissent identifies the two other cases in the last 25 years in which the Court issued its judgment (mandate in the second one, but same effect) upon application by the parties. She leaves out Trump v. Anderson, in which the Court issued the mandate forthwith of its own accord in the merits opinion, and Purcell itself, in which it does the same. I’ve seen other sources pointing to more granted Rule 45 applications as well.
Also, her 25-year time limit just misses Bush v. Gore, which also did it in the merits opinion.
When is the last time any justice presiding on the supreme court read and understood the constitution. Birthright citizenship is so clear the supreme court shouldn't be looking at it.
Some aspects of the birthright citizenship case seem somewhat fuzzy to me, though I'm not a lawyer. For example, in United States v. Wong Kim Ark, a case central to the issue, the Court seems to make the parents' domiciliation (whatever that means) in the U.S. a condition for the Fourteenth Amendment to apply:
"unless the general rule, that, when the parents are domiciled here, birth establishes the right to citizenship, is accepted, the Fourteenth Amendment has failed to accomplish its purpose" and "Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States."
But then they write:
"It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides -- seeing that, as said by Mr. Webster ... and since repeated by this court, 'independently of a residence with intention to continue such residence; independently of any domiciliation; ... an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government ...'"
The inclusion of the phrase "independently of any domiciliation" seems to contradict their earlier pronouncements. This is relevant since president Trump's executive order would affect children born here to tourists, and also those born here to women who cross the southern border when they're about to give birth, to ensure that they will be admitted to a U.S. hospital. In neither case does the woman seem to be "domiciled" in the U.S. at the time of birth.
I realize that there may be an explanation for this apparent inconsistency that's not obvious to non-lawyers. If so, I'd be happy to know what it is. (This comment is not meant as support for president Trump's executive order.)
Glad you addressed Purcell. Stay requests from Alabama, Tennessee, and Florida will surely invoke the doctrine and put Alito’s partisan corruption in bright sunlight for the world (and the NYT) to see.
So Hooray! Norm Ornstein also said today, the people of weight are saying: Use the Constitution! The Supreme Court's reckless over-reach destroys legitimate democratic norms by expanding court review recklessly. Congress can curb the Court. Just give us the majority to pass and re-pass democratic legislation governing elections, and exclude Court appellate review! Thank you, Norm & Steve.
Lets get 21st-century oriented Democrats behind this effort and in 8 months the new Congress can save our electoral democracy, and put the witless one out to permanent rest with trumpi and his ilk.
Legislation requires a Presidential signature. Unless you are expecting a blue tsunami to have a veto proof majority? Restooring democracy will be long and hard. We need to work for November, yes. and then keep working.
This is just plain sad to read. In 1883 the spiritual forefathers of the Roberts majority struck down the Civil Rights Act of 1875, leading Frederick Douglass to lament "O for a Supreme Court of the United States which shall be as true to the claims of humanity, as the Supreme Court formerly was to the demand of slavery." Alito's petty partisanship is an embarrassment about which he seems not to be the slightest bit embarrassed.
"Alito defends the Court’s willingness to move quickly here on the ground that “[t]he dissent would require that the 2026 congressional elections in Louisiana be held under a map that has been held to be unconstitutional."
It sure feels like (and I'm not enough of a careful reader to know if Alito is mostly to blame) as if when Court conservatives want to object to something, they term it unconstitutional. Laypeople might be forgiven for asking whether constitutionality itself is in the eye of the beholder (or the justice, given your comment about this being a statutory question).
Indeed! But, like it or not, the Constitution inescapably sets up the Supreme Court as a political player. This is not a criticism: politics, at least on a meta-level, has always been part of Anglo-American judiciaries. In common law systems, this seems inevitable?
Law involves reasoned argumentation, but it isn't, and cannot be, as rigorous as mathematics; an element of personal judgment is needed, so constitutionality will always be in the eye of the beholder to some extent.
How much does the word "liberty" encompass? What counts as a "person"? We'll be arguing about the extent of the penumbras formed by emanations from the Bill of Rights until the cows come home.
There's nothing original in what I said, but when I listen to Supreme Court oral arguments, I'm always struck by the odd mix of careful analytic reasoning and fuzzy definitions that so often allows one to draw either of two opposing conclusions.
If I recall my legal history, the Southern states didn't move for immediate issuance of the mandate in Brown v. Board of Education, so that they could immediately dismantle the unconstitutional segregation scheme and integrate the schools without waiting even a few weeks.
The southern states were not a party to Brown and could not move for anything. Here, this is quickly for R redraw attempts, notwithstanding that the election is underway. Go study your history
Your knowledge of legal history is nonexistent so this "recall" is pure fiction.
Roberts is not calling balls and strikes but is fixing the game for the conservative bettors. He is the judicial equivalent of Shoeless Joe but we lack a Kenesaw Landis.
That’s an insult to “Shoeless Joe Jackson” who did not change the excellence of his play in the field but did take the money and paid dearly for his sin! The Robert’s baseball analogy was always a red herring. You can’t be an umpire and a Commissioner or Owner. Immediate appearance of a conflict of interest. You can’t be an umpire when you never are actually in any game! At best you are the replay umpire in DC reviewing the limited challenges allotted to the teams in the field, who need answers within minutes not years. Unfortunately, those did not exist in baseball when Roberts was confirmed. So, he used what he thought was a mellifluous and comforting “fairness”metaphor that was misleading from the outset. Further, every Baseball player and manager knows you never win an argument with an umpire even if it feels good to argue with them. Roberts was a good lawyer, capable of moving an audience to see his point of view while deflecting from the main inquiry as to whether or not he was or would be a wise and careful Super Appellate Judge professionally married to a very Jealous spouse in the Law and the Constitution! Our Senate never makes that inquiry anymore and We ARE THE WORSE FOR IT!
Odd that the SCOTUS conservatives are so touchy! So quick to bristle over criticisms that they are too partisan, too opaque, too inconsistent … and consistently so.
Time for a reprise of Justice Coney Barrett's plaint re: "[...] she and her colleagues on the court are not a "bunch of partisan hacks,"...well, then, don't bloody well rule as if you are, ffs!
Well, I don’t know … are rubber stamps hacks? How about hackneyed Alito-esque prose? Too prosaic?
Indeed, puns remain the highest form of wit. :)
Have to agree wit dat.
A characteristic of old repressed men!
Sclerotic old men.
Trying to be careful as an old man, myself!
Truly a bumpy ride!
Justice Jackson's dissent identifies the two other cases in the last 25 years in which the Court issued its judgment (mandate in the second one, but same effect) upon application by the parties. She leaves out Trump v. Anderson, in which the Court issued the mandate forthwith of its own accord in the merits opinion, and Purcell itself, in which it does the same. I’ve seen other sources pointing to more granted Rule 45 applications as well.
Also, her 25-year time limit just misses Bush v. Gore, which also did it in the merits opinion.
well it’s “one for the ages”, is it not?
THIS and yesterday's...I'm a subscriber now! Thank you.
Balls and strikes my ass
When is the last time any justice presiding on the supreme court read and understood the constitution. Birthright citizenship is so clear the supreme court shouldn't be looking at it.
Some aspects of the birthright citizenship case seem somewhat fuzzy to me, though I'm not a lawyer. For example, in United States v. Wong Kim Ark, a case central to the issue, the Court seems to make the parents' domiciliation (whatever that means) in the U.S. a condition for the Fourteenth Amendment to apply:
"unless the general rule, that, when the parents are domiciled here, birth establishes the right to citizenship, is accepted, the Fourteenth Amendment has failed to accomplish its purpose" and "Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States."
But then they write:
"It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides -- seeing that, as said by Mr. Webster ... and since repeated by this court, 'independently of a residence with intention to continue such residence; independently of any domiciliation; ... an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government ...'"
The inclusion of the phrase "independently of any domiciliation" seems to contradict their earlier pronouncements. This is relevant since president Trump's executive order would affect children born here to tourists, and also those born here to women who cross the southern border when they're about to give birth, to ensure that they will be admitted to a U.S. hospital. In neither case does the woman seem to be "domiciled" in the U.S. at the time of birth.
I realize that there may be an explanation for this apparent inconsistency that's not obvious to non-lawyers. If so, I'd be happy to know what it is. (This comment is not meant as support for president Trump's executive order.)
https://supreme.justia.com/cases/federal/us/169/649/#tab-opinion-1918088
Glad you addressed Purcell. Stay requests from Alabama, Tennessee, and Florida will surely invoke the doctrine and put Alito’s partisan corruption in bright sunlight for the world (and the NYT) to see.
Alito is scared WITLESS! yes, WITless.
So Hooray! Norm Ornstein also said today, the people of weight are saying: Use the Constitution! The Supreme Court's reckless over-reach destroys legitimate democratic norms by expanding court review recklessly. Congress can curb the Court. Just give us the majority to pass and re-pass democratic legislation governing elections, and exclude Court appellate review! Thank you, Norm & Steve.
Lets get 21st-century oriented Democrats behind this effort and in 8 months the new Congress can save our electoral democracy, and put the witless one out to permanent rest with trumpi and his ilk.
Legislation requires a Presidential signature. Unless you are expecting a blue tsunami to have a veto proof majority? Restooring democracy will be long and hard. We need to work for November, yes. and then keep working.
This is just plain sad to read. In 1883 the spiritual forefathers of the Roberts majority struck down the Civil Rights Act of 1875, leading Frederick Douglass to lament "O for a Supreme Court of the United States which shall be as true to the claims of humanity, as the Supreme Court formerly was to the demand of slavery." Alito's petty partisanship is an embarrassment about which he seems not to be the slightest bit embarrassed.
Thanks for that Douglass statement.
to borrow a phrase from SNL'S Mike Myers, you are a cheeky monkey. Can't you notice when you're making others uncomfortable?
Thank you. Was wondering about this.
"Alito defends the Court’s willingness to move quickly here on the ground that “[t]he dissent would require that the 2026 congressional elections in Louisiana be held under a map that has been held to be unconstitutional."
It sure feels like (and I'm not enough of a careful reader to know if Alito is mostly to blame) as if when Court conservatives want to object to something, they term it unconstitutional. Laypeople might be forgiven for asking whether constitutionality itself is in the eye of the beholder (or the justice, given your comment about this being a statutory question).
That's ...unsettling.
Indeed! But, like it or not, the Constitution inescapably sets up the Supreme Court as a political player. This is not a criticism: politics, at least on a meta-level, has always been part of Anglo-American judiciaries. In common law systems, this seems inevitable?
In its current Roberts-esque design, unconstitutional btw, anything by the Roberts6, the eye of the 6 is unconstitutional. IMO.
Was the Texas redistricting case a matter of holding in place an unconstitutional map, or?
Law involves reasoned argumentation, but it isn't, and cannot be, as rigorous as mathematics; an element of personal judgment is needed, so constitutionality will always be in the eye of the beholder to some extent.
How much does the word "liberty" encompass? What counts as a "person"? We'll be arguing about the extent of the penumbras formed by emanations from the Bill of Rights until the cows come home.
There's nothing original in what I said, but when I listen to Supreme Court oral arguments, I'm always struck by the odd mix of careful analytic reasoning and fuzzy definitions that so often allows one to draw either of two opposing conclusions.
this does not extend only to the conservatives
Justice Alito's entitlement bespeaks an injudicious manner.
Can we please stop pretending this court has any legitimacy to endanger?
they might not hold any legitimacy with you personally, but that is not the same as lacking any legitimacy