The Supreme Court

[elliseamos]

Thomas doubling down on his Gonzales v. Raich dissent today:

A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.

Because I'm not well read, what's the difference between this and Wickard v. Filburn? Which I only briefly read about because of the guy in the tweet above on the last page?

[4/5]

Thomas doubling down on his Gonzales v. Raich dissent today:

A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.

Because I'm not well read, what's the difference between this and Wickard v. Filburn? Which I only briefly read about because of the guy in the tweet above on the last page?

Wickard is probably the most (in)famous case that typifies the Court's reinterpretation of the commerce clause in the late thirties/early forties. Just a few years before that the commerce clause was interpreted as allowing Congress to only regulate, well, interstate commerce. This has always been kind of a tricky thing: when does something start being interstate and when does it stop? If you employ workers in a single state what type of commerce are you engaging in? What if the product gets sold in other states? Is just the transport of the product interstate (and therefore able to be regulated by Congress) or is the employment of the workers also interstate? What about a store that isn't an interstate chain selling stuff? What if they're selling things that were produced in other states?

In a series of cases in this era the Court expands the interpretation, saying that only Congress can regulate anything affecting interstate commerce. Notice that it doesn't have to be interstate or commerce anymore. Congress basically just has to make the argument that it affects interstate commerce. And in Wickard it doesn't even matter if it's the action of a single person and therefore doesn't actually affect interstate commerce. The Court gives Congress even wider leeway by deciding that things "affect" interstate commerce through aggregation: if everybody did what this person did (growing excess wheat and feeding to his own livestock) would it affect interstate commerce? And if the answer is yes, then Congress can regulate it, even if it is not interstate or commerce.

Thomas is taking the opposite position. He would dramatically rein in Congress' commerce powers and I'm sure would love to overturn Wickard v. Filburn. In that quote from GH I don't think he's being overly specific about the commerce clause, just arguing that the Court ought to reconsider the constitutionality of federal marijuana laws. He dissented in Gonzales v. Raich which in 2005 upheld such laws by following the logic of Wickard v. Filburn.

[Green Habit]

SCOTUS is going to save two big cases for last:

--Brnovich v. DNC: will the Roberts Court take another swipe at the Voting Rights Act?
--AFP/Thomas More v. Bonta (formerly Becerra): will the Roberts Court also take a swipe at donor disclosure laws? We know where Thomas stands on that, and he'd need to nudge at least one of Roberts or Alito on their priors to get his way.

[4/5]

Interesting coalition of Justices just came together to rule in favor of eminent domain: Roberts, Breyer, Alito, Sotomayor, and Kavanaugh. Thomas, Kagan, Gorsuch, and Barrett dissent.

[Green Habit]

SCOTUS is going to save two big cases for last:

--Brnovich v. DNC: will the Roberts Court take another swipe at the Voting Rights Act?
--AFP/Thomas More v. Bonta (formerly Becerra): will the Roberts Court also take a swipe at donor disclosure laws? We know where Thomas stands on that, and he'd need to nudge at least one of Roberts or Alito on their priors to get his way.

They'll come down on Thursday morning.

[Green Habit]

Interesting coalition of Justices just came together to rule in favor of eminent domain: Roberts, Breyer, Alito, Sotomayor, and Kavanaugh. Thomas, Kagan, Gorsuch, and Barrett dissent.

I can't really tell for sure, but the dispute may have been more statutory than constitutional in nature, and if so that might help explain the unusual lineup.

[elliseamos]

Thanks for the explanation, 4/5.

[96583UP]

so is Kavanaugh banging Amy family man Barrett yet or what

[4/5]

Interesting take on the Court's battle over Smith:

Spoiler: show

As the chief justice interpreted Philadelphia’s standard foster-care contract, the city’s administrator had the power to grant exemptions from the nondiscrimination requirement. “The creation of a formal mechanism for granting exceptions renders a policy not generally applicable,” he wrote. So the rule in Smith under which a “neutral law of general applicability” applies to everyone including religious objectors, was simply irrelevant to the Fulton case.

Instead, Chief Justice Roberts invoked a much less well-known case, a 1993 decision with the unwieldy name Church of Lukumi Babalu Aye, Inc. v. Hialeah. This decision struck down a city ordinance that banned animal sacrifice, a practice engaged in by followers of Santería, an Afro-Caribbean religion that was the target of considerable public animosity. Because the ordinance did not apply to other means of slaughtering animals or disposing of dead ones, the court held that the city of Hialeah violated the Free Exercise clause by placing a heavier burden on a religious practice than on similar secular practices, like hunting or fishing.

The facts of the Lukumi case were so exotic, and the religious animus to which the court responded so unmistakable, that for years the decision was basically ignored. Only in recent years has it begun to be cited as lawyers for the religious right discovered its utility and receptive judges enlarged its boundaries to embrace not only overt discrimination but also readily explained differences in treatment between religious and secular activities.

A newly robust Lukumi decision found its way into recent rulings overturning restrictions on communal worship during the pandemic. Lukumi has now come to stand for the idea that the government needs a compelling reason for making any distinction between religion and nonreligion if the burden on religion can be described as even slightly heavier.

And what of the fate of the Ricks case? On the day Fulton was decided, the Becket Fund filed a supplemental brief in the case, urging the justices to grant review. “Fulton only underscores the need for this court to revisit Smith, and this case presents an ideal vehicle to do so,” the brief said.

One possible reason the court rejected that advice is that the justices were wary of jumping back so quickly into a debate over Smith after having just spent seven months fighting over the Fulton case. While much commentary on the Fulton decision has emphasized its 9-to-0 outcome, the separate opinions signed by Justices Samuel Alito, Neil Gorsuch and Clarence Thomas make clear that the justices were deeply and even angrily split over what to do. There are plenty of other religion cases in the pipeline, any of which the court may grant in the coming months if not days, that don’t require a confrontation with Smith.

That’s a plausible reason for denying the Ricks case, even a likely one, but I have a different theory. It’s that there is no longer a reason for the court to waste time and energy fighting over Employment Division v. Smith. The elevation of the Lukumi decision into what amounts to a “most-favored nation” clause for religion — requiring that religious activity must be treated at least as well as any secular activity deemed comparable — makes Smith’s barrier against religious exemptions so easily evaded as to be irrelevant.

That’s not the world George Ricks was in when he brought his pro se lawsuit against the Idaho Contractors Board in 2016. It’s the world we’re in now, and I invite those who think this was a Supreme Court term in which nothing much happened to take another look.

[Green Habit]

Expected 6-3 split on Brnovich v. DNC:

https://www.supremecourt.gov/opinions/2 ... 7_g204.pdf

[Green Habit]

And the same expected 6-3 split in AFP v. Bonta.

https://www.supremecourt.gov/opinions/2 ... 1_p86b.pdf

[4/5]

Expected 6-3 split on Brnovich v. DNC:

https://www.supremecourt.gov/opinions/2 ... 7_g204.pdf

So is it now necessary to prove discriminatory intent to enforce section 2?

[Green Habit]

Expected 6-3 split on Brnovich v. DNC:

https://www.supremecourt.gov/opinions/2 ... 7_g204.pdf

So is it now necessary to prove discriminatory intent to enforce section 2?

And while Alito is accusing the dissent of this:

The interpretation set out above follows directly from what §2 commands: consideration of “the totality of circumstances” that have a bearing on whether a State makes voting “equally open” to all and gives everyone an equal “opportunity” to vote. The dissent, by contrast, would rewrite the text of §2 and make it turn almost entirely on just one circumstance—disparate impact.

[4/5]

Expected 6-3 split on Brnovich v. DNC:

https://www.supremecourt.gov/opinions/2 ... 7_g204.pdf

So is it now necessary to prove discriminatory intent to enforce section 2?

And while Alito is accusing the dissent of this:

The interpretation set out above follows directly from what §2 commands: consideration of “the totality of circumstances” that have a bearing on whether a State makes voting “equally open” to all and gives everyone an equal “opportunity” to vote. The dissent, by contrast, would rewrite the text of §2 and make it turn almost entirely on just one circumstance—disparate impact.

[simple schoolboy]

Disparate impact being the go to test effectively gives us Ibram X. Kendi's department of anti-racism without even bothering with an ammendment, so yeah, not a fan of that test.

[Green Habit]

Hoo boy, there's a lot of stuff happening in the final orders list that just came down.

https://www.supremecourt.gov/orders/cou ... r_4gc5.pdf

I'll start with a notable cert denial and cert grant. The notable denial was yet another argument over what First Amendment rights businesses have versus anti-discrimination law with regards to the LGBTQ community:

ARLENE'S FLOWERS, INC., ET AL. V. WASHINGTON, ET AL.

The petition for a writ of certiorari is denied. Justice Thomas, Justice Alito, and Justice Gorsuch would grant the petition for a writ of certiorari.

And for the grant, Carson v. Makin should be a fiery one:

Issue: Whether a state violates the religion clauses or equal protection clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction.

[Green Habit]

SCOTUS summarily reverses a death row inmate's habeas petition. Breyer dissents without comment, Sotomayor and Kagan dissent with much comment.

[Green Habit]

Whoa, Gorsuch and Thomas want to seriously reconsider the actual malice standard in New York Times v. Sullivan. This is the case they would have granted cert on:

https://www.scotusblog.com/case-files/c ... -v-lawson/

I too don't like the double standard that "public figures", whatever that means, face, but if anything I'd go the opposite direction and demand actual malice for everyone.

[Green Habit]

And finally, Kavanaugh, Thomas, and Gorsuch would have wanted to prod at Kelo v. City of New London with this case:

https://www.scotusblog.com/case-files/c ... -illinois/

A whole lot of signals being sent to plaintiffs and lower courts on where SCOTUS might head, even without taking firm action.

[blueviper]

I've read the entire thread and I'm almost finished with law school. Thanks!

Just kidding. I have no idea what I'm reading here.