About Me

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

Thursday, June 20, 2019

SCOTUS Watch: Crosses and Delegation etc.

And Also: I basically re-watched The Perfect Bride and enjoyed it again. It is pleasant, good cast and characterizations and has something to say about moving on etc. I would like one of these films to have a sequel where the putative love interest gets her (or his) own chance for happiness. Louisa On the Front Lines is a good book that focuses (though being so short, not only) about the author's time as a nurse during the Civil War. Nice book that almost seems like it is geared for young adult readers. But, many adults also would favor the writing style.

So we have the second of three opinion days scheduled for this week after the first two weeks only had one each. Four more down.  The major news involves delegation (to be continued) and public religious displays (somewhat expected limited opinion though perhaps not that part where a cynical progressive commentator finds various things -- up to a point -- to like about it).  You can also find a link there discussing the first opinion.
The specific issue in Gundy involves the Sex Offender Registration and Notification Act (SORNA), a 2006 federal law requiring certain sex offenders to register in the state where they reside. SORNA automatically imposes this registration requirement on sex offenders convicted after it was enacted, but it delegates to the attorney general the task of determining whether people who offended before SORNA became law must register.
Kagan for the liberals starts off by noting that there simply is no real dispute here -- the lower courts along with everyone else found this a legitimate delegation, the case was granted for review anyway (one can guess the four votes) and yet again we are going to uphold it.  It's notable that the references to the "dissent" was not to Gorsuch (in high Gorsuch form) who was joined not only by Thomas but Chief Justice Roberts (Kavanaugh not involved), but an earlier case.  It is as if she knows this is a "to be continued" since Alito only concurred (the very first time he was the deciding vote in such a situation) because he wanted a clean case to challenge the doctrine.  The modern regulatory state not being pin-pricked by lower courts is at stake here and she basically says so.

[After the morning business, the Supreme Court took a set of cases dealing with an Appointment Clause matter that could upend the work of the oversight board tasked with pulling Puerto Rico out of its record bankruptcy.] 

The other major ruling was also something of a limited affair though nose counting would suggest Lemon v. Kurtzman, the old 1970s Establishment Clause test is no longer good law.  This might involve going a bit more than Alito's opinion bluntly says and counting concurring justices (or whatever Gorsuch is) but is fairly realistic.  OTOH, it's unclear what exactly changes really.  Alito's opinion itself to me applies a sort of endorsement analysis without bluntly saying so.  The cross is a Christian symbol but is not being used to promote Christianity etc.  Justice Breyer joins in full while Kagan joins mostly except for some of the blunt anti-Lemon test language.  Only RBG (from the bench) and Sotomayor dissented. This is fairly unsurprising though at oral argument Kagan dissenting was possible. One wonders if the majority was tempered a bit to assure her and Breyer's votes.

(To be clear, for now, it is just tossed for longstanding displays. But, it amounts to a waiting game and how much of it is left for Roberts.  Alito surely will go as far as Roberts is willing to go.  Kavanaugh and Gorsuch already has basically buried it.) 

The opinion along with Kavanaugh and Breyer's concurrences emphasize the importance of a rule cited by the majority -- “an honest endeavor to achieve inclusivity and nondiscrimination."  Thomas goes his usual own way, tossing a footnote (3) that lays it on thick suggesting a strong separtist approach is really anti-Catholic. Gorsuch would deny standing in these sort of display cases where the injury is symbolic in nature.  He also is not too gung ho about going along with Alito's Breyer-esque grandfathering approach about old symbols.  How the Supreme Court will actually treat new (how new?) possible threats to the Establishment Clause is unclear. Another "to be continued."

Some found this litigation, though there was success in the lower courts and a gigantic cross with a big price tag of continual upkeep seems rather blatant, misguided.  This is somewhat understandable but there is value for the interest groups that bring such cases all the same.  Also, the net result is probably the best one could hope for.  Finally, I'm sympathetic with the majority up to a point, but think the dissent is correct.  Something like transferring it to private hands or putting up other religious symbols to honor the war dead of others (as RBG notes, headstones at military cemeteries honor personal beliefs, not one size fits all)  provide an alternative path.  This is not about keeping religious symbols out of the public square as much as not favoring one.  Also, history and tradition is cited as an important thing here, but who has the best reading of that?

Two other cases were disposed of -- one was a punt though other than Roberts, the conservatives would have handled it somewhat differently.  Another one in the minds of Thomas/Gorsuch/Kagan (the Court now is likely to have if anything more mixed results)  should have been one but Sotomayor for the rest went another way.  The link can be followed for the details, but again, doesn't seem that notable. Overall, the name of the game this term has been minimalism, perhaps in part with a look to the political branches and the public.  How will that work with the census case?

(I will deal with the death penalty case separately.) 

No comments:

Post a Comment

Thanks for your .02!