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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, June 18, 2018

SCOTUS Does Not Go For It On Fourth Down

And Also: Chris Hayes and wife Kate Shaw talk law and Trump. They are so cute & talented.
First off, let's speak of the baseball gods' gift to the Mets yesterday in what looked to be yet another loss, helped by an insurance run by the "know how to play the game the right way" Diamondbacks.  Down Reyes, who showed a bit of life of late, but not that much. He decides to bunt. Good idea since he isn't hitting. The bunt went foul ... oh wait. It didn't.  The catcher, a position that saved pitchers' bacon repeatedly in this season, flubbed and picked it up before it rolled foul. A tough if catchable fly ball later and it's two on for a guy who actually is hitting. Home run.  The pitcher now spent, he gave up another HR to a guy who isn't hitting. It's so fated that even a flub by the Mets rookie 1B didn't ruin things.

Okay. So, back to the previous scheduled Orders/Decision Day. First orders. A few interesting tidbits including no decision yet on the Arlene Flowers same sex marriage case.  Sotomayor (as she "thrice" did before) has a solo dissent in a death penalty case.  Without dissent, they don't take a case involving voting rights in Puerto Rico (unjust but probably blocked by the constitutional system in place). SG opinion asked for a case involving a state law against forced feeding ducks/geese (pre-emption issues).  Also, they will decide if the Excessive Fines Clause is incorporated, a question those who thought about it probably thought happened already.

Other orders, including cases taken for argument, don't appear that interesting. A summary disposition involved applying Sessions v. Dimaya, the case involving the vagueness of a criminal immigration law. And, the first opinions today involved sentencing. Sotomayor started with a 7-2 (Thomas and Alito) case while an interesting split of Breyer v. Kennedy (with Kagan and Sotomayor, Gorsuch not taking part) splitting on what was a necessary record.  The most notable thing about the case (for other than those who are experts on this sort of thing) for many is that Rod Rosenstein argued for the government.

[This analysis suggests Kennedy's dissent is naive.]

Overall minor tweaking with a "hey we don't divide in predictable ways all the times" example. A return player was involved in our first punt, which basically left his claim of retaliation because of his beliefs (fwiw, I wasn't overall impressed) open even if there otherwise was grounds for an arrest. Only Thomas was upset at this.  The big decision (or non-decision) today involving political gerrymandering. As was predicted by some court watchers, Roberts wrote the opinion, holding there was no standing. The liberals went along but via Kagan wrote a strong concurrence on what is at stake.  Thomas/Gorsuch would have closed off future relief.

If another justice was willing to sign on the standing argument, it is fairly likely that the liberals would have voted differently. Jurisdiction line drawing has some content but often is a matter of pragmatics.  We can see a silver lining here in that people are able to live to fight another day. We can even see some logic in being wary about the federal courts getting involved and needing to draw vague lines such as the mathematical argument made in this case. But, we could have complained about the "one person, one vote" cases too. And, only in hindsight was Brown v. Bd. an "easy call," one that led to decades of litigation that eventually was no longer unanimous. A line in the sand is warranted here.

But, Kennedy was not willing to draw one ... yet.  More Thursday.


* One that might be is a second go around involving drones, moose and regulation of national parks in Alaska.

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