The Supreme Court discussion thread
So it now seems absolutely certain that the court will end up hearing an abortion related case sometime in the future. How should they adjudicate these new laws?
FWIW, I've always thought that the decision in Roe is worth reading, because it makes an interesting legal and philosophical argument in support of the compromise the justices reached, attempting to balance the the constitutional "right to privacy" which entails women's right to self-determination and the "legitimate state interest" in regulating abortion, e.g.
The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus.... As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.
This balancing of interests leads them to make the viability of the fetus an inflection point with regard to when the state may legitimately assert an interest in requiring that the life of the fetus be protected.
With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
Does the compromise outlined in Roe still make sense?
I also think there's probably room for a discussion about the role of the courts more generally, here, and particularly the way they are becoming politicized simply because the appointment process is so heavily politicized, i.e. the refusal to hold a vote on Merrick Garland, the Kavanaugh hearings, etc. But then one of the criticisms of Roe itself is that the compromise they reached might have been more appropriately reached via a legislative process, rather than by the courts. I've always thought that would have been optimal, but then I would not have traded the "optimal" legislative process for abortion being illegal the last 50 years either. So I am a supporter of Roe.
Chevron has been getting chipped away for decades. It’s crystal clear that Chevron deference was far stronger than the Court intended, even by the liberal wing of the court.
Now we fall back to Skidmore deference, which was getting strengthened pre Chevron.
The framework change is seismic but in practice the outcomes will not be as different some people seem to assume.
It’s going to take 10+ years of litigation and appeals before we see the dusts settle though. Lots of billable hours for sure.
Chevron has been getting chipped away for decades. It’s crystal clear that Chevron deference was far stronger than the Court intended, even by the liberal wing of the court.
Now we fall back to Skidmore deference, which was getting strengthened pre Chevron.
The framework change is seismic but in practice the outcomes will not be as different some people seem to assume.
It’s going to take 10+ years of litigation and appeals before we see the dusts settle though. Lots of billable hours for sure.
I agree with this assessment. Roberts generally does not like big moves, but getting rid of Chevron deference was his white whale.
That is something Luciom has talked about a lot, but he never used the Chevron terminology and I had never heard of it.
It is pretty stupid to think that congress cannot delegate any of its authority. Especially when considering it was not originally seen as a full time job.
Chevron has been getting chipped away for decades. It’s crystal clear that Chevron deference was far stronger than the Court intended, even by the liberal wing of the court.
Now we fall back to Skidmore deference, which was getting strengthened pre Chevron.
The framework change is seismic but in practice the outcomes will not be as different some people seem to assume.
It’s going to take 10+ years of litigation and appeals before we see the dusts settle though. Lots of billable hours for sure.
isn't skidmore "deference" less of a deference and more of a general respect for an agency's opinion? i dont see why any conservative judges would find it persuasive.
It is pretty stupid to think that congress cannot delegate any of its authority. Especially when considering it was not originally seen as a full time job.
Another stupid thing I've seen from supporters of overturning Chevron has been the "Now these will be regulated like the law says they should be and power divided more fairly!". If someone really believes Republicans did this to better protect constitution, separation of powers and freedoms of people, they must have just woken up from century long coma or shared raw pork dishes with RFK.
isn't skidmore "deference" less of a deference and more of a general respect for an agency's opinion? i dont see why any conservative judges would find it persuasive.
It’s a matter of degree. Even pre Chevron the courts disposed of cases by citing agency letters and told people the agency’s reasoning was sound.
Chevron had to go. It was basically a running joke that the IRS and the SEC regularly wrote rules/regulations in direct contradiction to statutes knowing they won’t be challenged. Often times there is an implicit acknowledgement they are trying to correct a congressional drafting error (that often later gets corrected to match the regs).
Even under Skidmore the agencies will issue tons of private letter rulings and most controversies will never reach the courts. Those that do will find the federal agencies do in fact have very well thought out rationales behind the regs justifying their actions.
Even under Skidmore the agencies will issue tons of private letter rulings and most controversies will never reach the courts. Those that do will find the federal agencies do in fact have very well thought out rationales behind the regs justifying their actions.
And those well thought out rationales will be used to wipe the asses of judges vetted for their views and cherry picked by the litigants via forum shopping.
Not that this doesn’t already happen, but it’ll make it more frequent and “legitimate”. Along the lines of the “major questions” doctrine, it’s definitely a shift of power towards the judiciary.
I’m not necessarily saying Chevron was the best approach, but the push to get rid off it is absolutely from corporate cash looking to make it easier to get rid of rules they don’t like.
They alone doesn’t make the push illegitimate. Even RBG and some of the liberal justices now, if pushed, would admit the agencies are abusing Chevron beyond what they intended.
What's funny is it was the Conservatives that brought in Chevron.
In the 60s-80s, Dems focused on importance of the courts, should not defer to agencies. GOP thought agencies should have the power. 1984 Chevron decision gave agencies the power. Dems were upset by this.
Politics is a joke.
What's funny is it was the Conservatives that brought in Chevron.
In the 60s-80s, Dems focused on importance of the courts, should not defer to agencies. GOP thought agencies should have the power. 1984 Chevron decision gave agencies the power. Dems were upset by this.
Politics is a joke.
Again, this is somewhat of a caricature. It's true that the litigation was initiated by an environmental advocacy group to challenge the Reagan EPA's interpretation of the Clean Air Act. But Chevron was a 6-0 decision. Four justices in the majority were Democratic appointees, and one of the six, William Brennan, is widely regarded as one of the most progressive justices to ever sit on the Court.
Chevron was an unanimous decision. Every justice agreed with the proposition that Congresss can, and out of practical necessity, must delegate rulemaking powers to federal agencies to flesh things out.
The agencies went further with successive administrations stretching the remit Congress gave to the agencies. I don’t know when but at some point the agencies sometimes just ignored congressional legislation. The justices, and not just the conservatives, were not happy.
I really only know it in the crypto sense, but the SEC has been an unmitigated disaster. Refusing to rulemake themselves and instead stretching every vague bit of law of from the 1930s and case law from the 1940s that they can.
They have simply followed of path of enforcement by litigation. One former SEC member said the courts are less likely to overturn their enforcement actions than they would be to overturn spurious rulemaking.
It's created an overly uncertain environment where the top securities lawyers in the country have no idea how to properly advise clients.
The SEC overreach needs to be reined back in. This Chevron dismantling is great.
It should be Congress that makes laws for new and novel items. Not agencies twisting nearly 100 year old laws to suit themselves.
Couldn't congress already have made new laws for me securities? If they haven't done that already, to me that implies they approved of the way things were being handled by the SEC.
pretty shocking the crypto scam nerds are happy about this ruling.
boy...didn't see that one coming...
SEC stupid about crypto doesn’t necessarily = SEC stupid about stock manipulation and deception scams that have been going on the same way for 100 years.
Couldn't congress already have made new laws for me securities? If they haven't done that already, to me that implies they approved of the way things were being handled by the SEC.
The SEC regulates securities. (A different agency regulates commodities.) There continues to be plenty of debate about whether cryptocurrencies meet the definition of a security. I believe that the SEC's current position is that nearly every cryptocurrency except Bitcoin is a security. But I suspect that position is informed less by a principled interpretation of the law and more by (i) the prevalence of fraud and outright scammers in crypto; and (ii) public and media criticism of the Wild West nature of crypto markets, which reached a crescendo when FTX blew up.
Is it wrong for me to say I just wish there was aa more fundamental plan if this was being reversed?
luciam , I understand you think my take of boeing regulating boeing was incorrect but it does feel they have a bit more agency than before with this ruling, even if many say it doesn't change things as drastically as some say, i still assume boeing and private got a 5-10% buff wrt deciding what they want to do in freedom
I haven't read it closely yet, but the SCOTUS decision on presidential immunity goes further than I expected. It states that the president (i) has absolute immunity for acts that fall within the president's core constitutional power, (ii) presumptive immunity for official acts, and (iii) no immunity for unofficial acts.
This is more or less the framework that I expected, but based on the way the opinion is written, it is hard to see how a prosecutor would successfully overcome the presumption for an official act.
The most surprising part of the opinion is the statement that a Court may not inquire into or consider a president's motives when deciding whether an act is official or unofficial. Most of the decision was 6-3 along partisan lines, but the part about not considering motives was only 5-4 . ACB did not sign on to that abysmal part of the majority opinion.
The Court of course dismissed out of hand Trump's idiotic argument that he could not be prosecuted unless he was first impeached by the House and convicted in the Senate.
The net result is that the district court now has to wade through the allegations and decide which, if any, constitute unofficial acts.
https://www.supremecourt.gov/opinions/23...
I would note also that this is exactly the sort of legislative-style opinion that conservatives purport to despise.
Sounds like Hunter is totally off the hook now. Congrats
Am I missing something but if Trump wins the election what's stopping Biden from basically just dissolving the constitution, having Trump killed/arrested, cancelling all election results and naming himself King of America as 'official acts'?
It's a hypothetical question I know Biden would never do those things but could he if he wanted to? Surely not
