The U.S. Supreme Court

and flag burning. And the recent DNA case.

"got"--aren't opinions assigned by the chief

Dissents are not

try again, washface

oh i thought the chef assigned everything my bad

chief

Stevens assigned Hamdi iirc, thinking politically of the impact of a Scalia opinion.

Rehnquist was still on the court for that and Stevens was in dissent anyway

that's what I mean: Stevens was senior justice in dissent, which means he assigns the dissent.

That is not how that works. You write in dissent whenever another justice's opinion doesn't say what you think is important. There's no need to come up with a coherent result when you've lost so dissenters don't collaborate the way a fragile majority might.

The senior justice in dissent assigns the main opinion for the dissent though. The other justices are still free to write their own dissents or concurrences.

It's not policy, it's just been tradition.

The Democrats-started-this-with-Bork line repeated by Republicans is exasperating as fuck. Ads and spokesmen explained what Bork's jurisprudence would have led to: no Brown (although he said he supported the ruling), a constricted view of the 14th Amendment. He got his hearing. His presence on the Court would have altered it and American law; he deserved to be opposed. He got his hearing. He lost 58-42. It wasn't character assassination.

I would read anything describing this tradition with great interest (xp)

https://books.google.com/books?id=Y5cUCl4hSWUC&pg=PA45&lpg=PA45&dq=senior+justice+in+dissent+assigning+opinion&source=bl&ots=5XrBHiU1I_&sig=7A9V6DFMxq4DHksDcxO1ouhJFKc&hl=en&sa=X&ved=0ahUKEwihqr7anvrKAhWGPCYKHdnfDQgQ6AEIPDAE#v=onepage&q=senior%20justice%20in%20dissent%20assigning%20opinion&f=false

Been away and haven't read all of the posts from the last few days. Has this been discussed--

There is no constitutional provision, no case law and no official policy about what the court should do with cases that have been argued and voted on when a justice dies. If the vote in a case that hasn’t yet been handed down was 5 to 4, as one might expect with these controversial rulings, can Scalia cast the deciding vote from beyond the grave to change the way America chooses every legislature in the land or integrates its public universities? A court that cares about its image and constitutional role will not rule in the name of a majority that counts on a dead justice, especially on the core issues of American social life. Such posthumous decisions are so unprecedented they would make Bush v. Gore look like responsible judicial behavior. Chief Justice John Roberts, who in matters entirely internal to the court like this wields some extra power, is known for his concern for institutional prestige, and he would be right to weigh in against issuing opinions based on what Scalia did in past conferences.

https://www.washingtonpost.com/posteverything/wp/2016/02/13/if-republicans-block-obamas-supreme-court-nomination-he-wins-anyway/?tid=pm_opinions_pop_b

from the same article--

The situation is not always good for liberals. Abortion, in a case that has not yet been argued, was subjected to the most onerous restrictions by the normally conservative Fifth Circuit. If the court deadlocks, most of the abortion clinics in Texas would close. On immigration, the court had announced it would take up another case from the conservative Fifth Circuit over whether Obama has the power to stop breaking up families by ordering the government not to deport millions of undocumented immigrants; the lower court ruling blocked Obama’s executive order, so a tie wouldn’t change that.

Most of the country, though, is governed by appeals courts dominated by Democrats. The suit against Obama’s environmental initiative, which the Supreme Court just stayed, came from the liberal D.C. Circuit, which had unanimously refused to grant the stay. Now the Obama administration can simply have the Environmental Protection Agency come up with a slightly different new plan and run to the liberal D.C. courts to bless it and refuse to stay it.

the thing about the "some of these 4-4 tie deals will be bad for liberal causes" angle is, those would have been 5-4 decisions in favor of evil with scalia still alive. so it's still better for liberals because they become one-offs rather than precedent for other states in the same position, etc. right?

On the question of cases they had already voted on, I wonder how many that is at this time of year? I don't know how their process works, whether they hear and decide cases on a rolling basis or sort of save up final decisions on a lot of things until later in the session?

I guess it would help if I'd read the article:

Normally, justices meet the week a case is argued, and vote on the outcome. So they have most likely already voted on pending cases on apportionment and affirmative action, for example.

Voting is one thing, drafting the opinions are way more involved but that's what clerks are for.

still feels weird. isn't there always the possibility for some wheeling-and-dealing after the initial vote? bringing people on board, changing people's minds? i dunno. i'm biased obv. but it seems really strange to put somebody's final confirmation on something after they've died. like what if that day in marfa, scalia was droping acid with some kids road-tripping from NOLA to arcosanti and was like ahhhh fuck me, kagan is right about that one?

"The Center Holds" by James F. Simon is a flawed book, but excellent in its descriptions of the complicated ways these things work (i.e. negotiation all the way through).

xpost

Yeah, that column concludes that Roberts (among others) would probably be uncomfortable issuing rulings decided by a dead man's vote. You can imagine the jokes -- "The Supreme Court has relocated to Chicago!"

Melvin Urofsky, who wrote an outstanding Brandeis bio (the only one readily available) a few years ago, published Dissent and the Supreme Court a few months ago, a meticulous account of the evolution of dissents through the Marshall Court, John Marshall Harlan, Brandeis and Holmes, Frankfurter, Brennan...and Nino.

http://fivethirtyeight.com/features/a-4-4-supreme-court-could-be-good-for-unions-and-voting-rights-advocates/

rundown of how some of the upcoming cases might be affected

https://www.change.org/p/nominate-anita-hill-for-supreme-court-justice

I am not sure how I feel about trolling the only black person currently sitting on the Supreme Court, particularly by using another black person.

yea fuck that

yeah, agreed, c'mon, man. Don't treat her like Harriet Miers.

also i know bald hypocrisy is just SOP so i don't even know why im asking but are there any recent interviews in which someone simply asks one of these republicans "if this was a republican president would you still be saying we need to wait until after the election?" just curious

This theoretical Republican would respond, "Ask Chuck Schumer in 2007."

rand paul has thoughts:

Paul suggested to Kentucky radio host Leland Conway that because there are cases challenging policies of the Obama administration, including lawsuits targeting his clean power plan and executive actions on immigration, the President should not be able to choose a nominee.

The senator said that the Supreme Court reviews cases that are "trying to figure out who has the power to do what."

i'm trying to imagine an alternate reality where rand paul becomes the president, a supreme court justice dies, and then paul explains to a weary nation that he can't replace the justice because there is a conflict of interest, explaining that these cases are "trying to figure out who has the power to do what" as his legal advisers (who are paid actors) nod in the background

obama should just wait until the supreme court has no cases where they try to figure out who has the power to do what

would love it if a journalist asked a supreme court judge what they thought of the current situation

here:

http://stream1.gifsoup.com/view6/3573699/alito-not-true-o.gif

I would assume every President Paul press conference would include some phrase like "Well, the Constitution doesn't saying anything about the EPA, so we're just going to have to figure out who has the power to do what."

"It would be an obvious conflict for me to appoint myself to the court, but I have gotten the cell numbers of the existing justices so that I can ring them up if ever I have a question for them. I think best at 3am".

Handy history of Senate votes for most recent Supreme Court nominees.

Antonin Scalia (1986): 98-0
Anthony Kennedy (1987): 97-0
Clarence Thomas (1991): 52-48
Ruth Bader Ginsburg (1993): 96-3
Stephen Breyer (1994): 87-9
John Roberts (2005): 78-22, 20 of 42 Democrats in favor
Samuel Alito (2005): 58-42, 4 of 45 Democrats in favor
Sonia Sotomayor (2009): 68-31, 9 of 40 Republicans in favor
Elena Kagan (2010): 63-37, 5 of 40 Republicans in favor

the Anita Hill thing is another example of 'clever' online liberals deserving a hatchet to the skull

also

David Souter (1990): 90-9

xp

after Anita Hill got that Saturday morning call on her office phone from "Ginny" Thomas, I would be terrified of leaving my state if I were she.

Maybe they should just nominate a pubic hair on a coke can ha ha

should've mentioned the elevation of Rehnquist to chief justice: 65 to 33

FWIW Thomas gets a way disproportionate amount of shit to Roberts and Alito. I have a theory about liberals having designated hateable minority figures/women to take all their repressed animus out on.

"Do tell."

http://theposhreportonline.co/wp-content/uploads/2013/05/clarence_thomas_102210-thumb-640xauto-1377.jpg

White House, January 22, 2017

"I'm afraid that must recuse myself from this daily intelligence briefing. you see, as President of the United States, *glancing eyes at the far side of the table, quiet mumbling* I clearly have decision-making authority *knowing nods from the paid actor legal advice team* and THEREFORE a conflict of interest *a slow clap begins, spreading like wildfire down the briefing table* or INDEED, my interests are in conflict, from this day on *uproarious applause, rand paul is now being carried out of the room on the shoulders of actors impersonating the secret service* i shall never attend any meeting where i have decision-making authority *the ritual candles are lit, the blood of the sacrificed goat is cold and thick* and i request that no other person with decision-making authority consult me on any briefings *new chords become possible; the dead rise* due to inherent conflicts of interest."

FWIW Thomas gets a way disproportionate amount of shit to Roberts and Alito. I have a theory about liberals having designated hateable minority figures/women to take all their repressed animus out on.

To be fair he is both objectively worse than those two and by all accounts a complete pig to boot (and been around longer and thus had given more reason to be hated). I'm not sure he got more shit than Scalia either.

https://en.wikipedia.org/wiki/Ideological_leanings_of_U.S._Supreme_Court_justices

i would never rule out race as a factor in, well, basically anything that happens in america. but nonetheless, he is very very hateable.

i also 100% expect alito to step proudly into the most-hated spotlight without scalia around. somebody's got to write all the most dickish, vile opinions, and thomas is not that guy. rather he's the guy who (imo obnoxiously) felt the need to distance himself from scalia's lawrence ruling with his dumb two-paragraph thing about how he thought it was a stupid law but it wasn't his job to strike down stupid laws. alito OTOH took the wheel for the obergefell dissent with some ridiculous sky-is-falling crap couched in a scalia-esque jurisprudence that gets conservative law students nodding their heads thoughtfully. we can look forward to him doing the same for another 15-20 years easy.

Carrie Severino, chief counsel and policy director for the Judicial Crisis Network and a former clerk for Justice Clarence Thomas, said conservatives are still mourning Scalia. But, she added, “if the president tries to pack the court, as it is apparent he may, then JCN will be leading the charge to delay a Senate vote until the American people decide the next president.”

god the totally ahistorical nonsense - and this is from a lawyer