The tyranny of the judiciary

naughty language ahead


Here's the YouTube version - 

And to repeat drummerboy's comment - language warning!

In earlier outings, this crowd have skewered the previous Australian government.


this latest ruling by Judge Cannon is a remarkable example of a judiciary out of control.

I heard Andrew Weissman tonight call the decision "untethered to the law".

Even Bill Barr feels icky.



drummerboy said:

this latest ruling by Judge Cannon is a remarkable example of a judiciary out of control.

I heard Andrew Weissman tonight call the decision "untethered to the law".

Even Bill Barr feels icky.


Trump's work in helping to corrupt the judiciary seems a success. Little did we suspect that deplorables would be placed on the Federal bench.


How can you have religious objections to HIV drugs?


The Times finally gets one right.

The actual cause of its historic unpopularity is no secret. Over the past several years, the court has been transformed into a judicial arm of the Republican Party. This project was taking shape more quietly for decades, but it shifted into high gear in 2016, when Justice Antonin Scalia died and Senate Republicans refused to let Barack Obama choose his successor, obliterating the practice of deferring to presidents to fill vacancies on the court. Within four years, the court had a 6-to-3 right-wing supermajority, supercharging the Republican appointees’ efforts to discard the traditions and processes that have allowed the court to appear fair and nonpartisan.

As a result, the court’s legitimacy has been squandered in the service of partisan victories. The Dobbs decision in June, which overturned Roe v. Wade, eliminated American women’s constitutional right to control their own bodies and was a priority of the Republican Party for decades, is only the most glaring example. In cases involving money in politics, partisan gerrymandering and multiple suits challenging the Voting Rights Act, the court has ruled in ways that make it easier for Republicans and harder for Democrats to win elections. In 2018, the court ruled that public sector labor unions violated the First Amendment rights of nonmembers by requiring them to pay fees to support the unions’ work bargaining on their behalf, after decades of rulings in which the court had found the opposite to be true. That ruling further weakened organized labor, another Republican goal.

For most of the court’s history, it was difficult to predict how a case would turn out based on the party of the president who nominated the justices. Even into the 21st century, as the country grew more polarized, the court’s rulings remained largely in line with the views of the average American voter. That is no longer the case. The court’s rulings are now in line with the views of the average Republican voter.



this came up on facebook. couldn't resist.


(well, not exactly "Like," but, you know...)


This thread explains something that I've wondered about, which is the ability for litigants to literally pick a specific judge to rule on their case.

You can only do it in certain states, e.g. Texas, I think Florida.

In most states a judge would be assigned at random, but in these "single judge divisions" that's not the case.

It doesn't seem right that states should have that kind of control over the federal judiciary.



I haven't been updating this thread lately because, frankly, there's just too much to cover.

We are so effed.


PVW said:

Something in the last few years -- the pandemic for sure, maybe the arrival of Trump even before then -- seems to have really unmoored a sizeable segment of the American right. IANAL, but as STANV notes, this seems to very clearly violate the separation of powers here, inserting the judiciary into an area the constitution would seem to quite explicitly place under the executive. Similarly, I was taken aback by the courts' acceptance of Texas' abortion vigilante bill, which seems to blow up the concept of judicial review. It all feels so lawless.

And now this insane ruling claiming authority to invalidate FDA approval. Lawless.


We are being hammered daily, and I think quite unfairly in a lot of instances. And nobody, practically nobody, is defending us,” he said. “The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organized bar will come to their defense.” But “if anything,” the justice continued, “they’ve participated to some degree in these attacks.”  Supreme Court Justice Samuel Alito


Let’s briefly roll through some of the Supreme Court ethics scandals that have surfaced just in the past two weeks: Clarence Thomas, whose wife Ginni tried to overturn a presidential election, is being financed by a billionaire GOP megadonor who literally collects Hitler memorabilia and has a garden full of dictator statues (oh, and who doesn’t charge Thomas’ mother rent). Neil Gorsuch, who discloses gifts as small as cowboy boots and a fishing rod, did not disclose that he sold a 40-acre Colorado property he co-owned to the CEO of a law firm that often argues cases before the court. And Insiderreported Friday that Chief Justice John Roberts’ wife, Jane, was paid 10.3 million in commissions from “elite law firms” that, of course, also had business before the court.

Alito is complaining that they are the victims in all this, because someone leaked his draft opinion in Dobbs a month early and people protested.…Nevermind that Alito himself was reportedly the one who leaked the Hobby Lobby birth control decision to donors in 2014, before calling the Dobbs leak a “grave betrayal” and blaming it on some “angry left-wing law clerk.” The call, sir, appears to be coming from inside the house.

https://jezebel.com/sam-alito-says-criticism-of-supreme-court-is-unfair-pr-1850388904


If you haven't seen this, ProPublica is running some deep investigative reporting on Leonard Leo, one of the most powerful men in the country and I bet not 1% would recognize the name.

Just scary.

There's also a podcast called "We don't talk about Leonard". Perfect title.


drummerboy said:

If you haven't seen this, ProPublica is running some deep investigative reporting on Leonard Leo, one of the most powerful men in the country and I bet not 1% would recognize the name.

Just scary.

There's also a podcast called "We don't talk about Leonard". Perfect title.

I've been listening to the "On The Media" episodes with that report, haven't read the piece yet.


the 5th Circuit is the worst of the worse


the upcoming Chevron decision will be huge and a major destructive hit against the administrative state and the ability of Dem Presidents to wield significant domestic power. Fascism comes in many forms.

https://slate.com/news-and-politics/2024/01/supreme-court-democrats-president-chevron-precedent.html


drummerboy said:

the upcoming Chevron decision will be huge and a major destructive hit against the administrative state and the ability of Dem Presidents to wield significant domestic power. Fascism comes in many forms.

https://slate.com/news-and-politics/2024/01/supreme-court-democrats-president-chevron-precedent.html

It's very interesting how the Chevron deference went from a conservative favorite to conservative target.


It just depends on who's on the court. Balls and strikes my ****


Recommended by a law professor friend who says he isn’t hyperventilating over Chevron deference’s fate. (It’s a law review article from 2014.)

https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=1461&context=faculty_scholarship


Did he say why he's not hyperventilating?

Merrill's writings here are mostly beyond my ken, but it seems that his thrust is to recommend changes to Chevron for reasons and doesn't seem to directly deal with the consequence of overturning it without his recommended changes.

It does seem to me that there is a great danger that in the coming years many policies will be overturned by radical conservative judges. I believe that is the whole point of this challenge to Chevron.

The potential here is to do great harm. Similar potential was in the recent independent state legislature decision. We lucked out because ISL relied on comic level interpretations of the Constitution, so the odds going in, even with this court, were that the ISL challenge would fail. That's not the case with Chevron. I think hyperventilating is a realistic reaction to the possibility that regulatory decision would move from being made by subject matter experts to reactionary and in many cases clearly nutty judges.

It all depends on what the ruling is. Merrill says "mend it, not end it". I'm not at all confident that they'll merely mend it. Coupled with the prevalence of forum shopping and the clear propensity of certain courts to step in where they shouldn't, I'm very pessimistic.


drummerboy said:

Did he say why he's not hyperventilating?

In short, that Chevron or no Chevron isn’t as important as who sits in the White House, who runs the agencies and who controls SCOTUS and the 10th Circuit, which remained the case even after Chevron. (Actually, he was just as short on X: “I just think there is sufficient play in the joints under either a Chevron or a non-Chevron regime that the real difference is who sits where - agencies, White House, SCOTUS, DC Cir 10.”

If radical conservative judges are your fear, do you believe an affirmation of Chevron would stop them? And if Trump wins the White House and takes over the agencies, would you want Chevron tying non-radical hands in the judiciary?


I'm really not understanding any of your points.

It doesn't depend on who's in the WH. If it's a Dem the people get screwed. If it's an R, the people get screwed, but twice as much.

Of course it depends on who rules SCOTUS. That's exactly why overturning it is such a threat right now.

Regardless of whether Trump is elected and manages to make over enough of the agencies to make a difference, the bigger threat is to existing regs which have nothing to do with what Trump might do in the future. Corporations will bring suit after suit after suit if Chevron is overturned. And they will win a lot of them, whereas they're unlikely to even bring many, if any, suits if Chevron remains intact.

The fact is that Chevron is good law because it places regulation making in the hands of of subject matter experts and not judges with no expertise on the subject.



drummerboy said:

The fact is that Chevron is good law because it places regulation making in the hands of of subject matter experts and not judges with no expertise on the subject.

You and I define fact differently. Merrill writes that Chevron is accidental law whose all-or-nothing deference to agencies replaced a give-and-take between agency expertise and judicial review.

I'm really not understanding any of your points.

As always, that’s all right. I do what I can.



DaveSchmidt said:

drummerboy said:

The fact is that Chevron is good law because it places regulation making in the hands of of subject matter experts and not judges with no expertise on the subject.

You and I define fact differently. Merrill writes that Chevron is accidental law whose all-or-nothing deference to agencies replaced a give-and-take between agency expertise and judicial review.


Contra the implication of your fact-finding, Merrill supports retaining Chevron and merely wants some clarifications.

https://www.law.columbia.edu/news/archive/professor-thomas-w-merrill-future-chevron-doctrine?utm_campaign=News+Stories&utm_content=1705418271&utm_medium=social&utm_source=twitter


drummerboy said:

Contra the implication of your fact-finding, Merrill supports retaining Chevron and merely wants some clarifications.

Again, our definitions diverge. I don’t believe I was fact-finding.


Merrill doesn’t sound like he’s hyperventilating, either.

So, my biggest concern is that the Supreme Court will come up with a new doctrine that works for it but ignores the different circumstances of the lower courts.

DaveSchmidt said:

drummerboy said:

Contra the implication of your fact-finding, Merrill supports retaining Chevron and merely wants some clarifications.

Again, our definitions diverge. I don’t believe I was fact-finding.

well, in your prior post you mentioned a fact, which I presume you found. Hence...


drummerboy said:

well, in your prior post you mentioned a fact, which I presume you found. Hence...

Yup, they definitely diverge.


the other reason to hyperventilate is that SCOTUS took up the case even though the original issue was resolved. They clearly took the case to attack Chevron.


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