And then there were eight.
First orders. The big news there is probably taking a trio of "risk corridor" cases, a result of one of many conservative moves to weaken ACA. One can wade into the details at the link, but looks like the challengers have a good argument. Long term, the way out here is for the Democrats to win in 2020 and having legislation to deal with the situation. Health insurance policy is not a one moment move. It requires ongoing action and follow-up legislation (including budgets) to deal with the situation. The inability thanks to McCain and the two women senators to severely weak ACA when Republicans had united government underlines the basic support of that legislation's goals. But, we are still in flux.
The first link provides a summary of other orders. One notable one, at least given my own concerns: "NPR argued that the complete version of the briefs should be available to the public, and today the justices agreed." Actions on abortion and DACA to come. Likewise, two of the big opinions (as expected) were not handed down. I would think there will be two more days (eight opinions in one day is unlikely) with Friday being another order day. Maybe, the orders will be separated. Anyway, to toss it in there, Kagan joined Alito's opinion denying punitive damages in a maritime case, the other liberals dissented. Another safe case for Alito. He's getting in a lot of history these days with WWI crosses, 17th Century double jeopardy and now the history of maritime law.
Gorsuch (Stolen Seat Guy) had two opinions, basically being the swing guy today, though the liberals in one went along with him in part. First, in another split with Kavanaugh (Rapey Partisan Liar Guy) he found a federal firearms regulation void for vagueness (this would be the second time in a week the liberals in a fashion protected gun rights*). As noted there, if we recall his strong dissent last week in the delegation case, it suggests a certain strong consistent wariness about governmental power. OTOH, recall he went along without comment in the travel ban case. So.
Yes, his concerns are somewhat non-complete, but it does add complexity to the divisions on this Court. The other opinion, with the liberals (minus Kagan) only joining in part this time, blocks a FOIA request by a newspaper regarding SNAP related data. I saw this case pop up in orders repeatedly, so it appears some justices were particularly interested. The liberals would send the case back to determine if the material is truly protected under the rules. Of mild interest, but might be of some concern. More here (including on "wooden" textual analysis); this is important in part because the overall issue is a matter of public concern.
The result in the final case -- the FUCT trademark ruling -- is expected. The only thing really in play was the possible breadth. Kagan (helping to clarify an earlier opinion with two wings) bluntly deemed not allowing the mark as immoral or scandalous as viewpoint discrimination in a short opinion. Alito went along, flagging this as a time when free speech is being threatened (multiple people think this is a subtweet to college campus protests).** Roberts rather decide things more narrowly as does Breyer and Sotomayor, all (with Breyer joining Sotomayor's most extensive remarks).
[To add one more thing, the big picture issue here basically turns on the point of trademarks. They are in place to help inform people a commercial item is tied to a certain individual or company. There repeatedly is some significant expressive content here. "FUCT," e.g., is supposed to send a certain message. Given traditional free speech rules, including unconstitutional conditions, viewpoint discrimination here is dubious. This isn't government speech as such. They don't "endorse" a Nike trademark. It is a government benefit, but one -- like marriage or whatever -- that should be supplied neutrally.]
What this will amount to long term maybe is somewhat unclear -- the law at issue was around since the 1940s and only recently was this sort of thing deemed unconstitutional -- but it would not surprise if more commercial related regulations will fall by the way-side. At any rate, expect some people to submit claims for various offensive sounding trademarks. More discussion of these cases can or eventually will be found at SCOTUBlog, Take Care and other such places. More opinions on Wednesday.
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* Reading Kavanaugh's dissent, the point is even more striking. We have a concern an important gun regulation, necessary for public safety, is wrongly being struck down. It's a strong dissent. I will remain agnostic on how strong it is on the merits. But, it the sort of thing that can split ordinary ideological lines. Also, as Leah Litman notes in her discussions at the two blogs cited, the case is best seen as fitting into a wider whole of recent case law.
** Justice Alito's concurrence warrants further comment:
First orders. The big news there is probably taking a trio of "risk corridor" cases, a result of one of many conservative moves to weaken ACA. One can wade into the details at the link, but looks like the challengers have a good argument. Long term, the way out here is for the Democrats to win in 2020 and having legislation to deal with the situation. Health insurance policy is not a one moment move. It requires ongoing action and follow-up legislation (including budgets) to deal with the situation. The inability thanks to McCain and the two women senators to severely weak ACA when Republicans had united government underlines the basic support of that legislation's goals. But, we are still in flux.
The first link provides a summary of other orders. One notable one, at least given my own concerns: "NPR argued that the complete version of the briefs should be available to the public, and today the justices agreed." Actions on abortion and DACA to come. Likewise, two of the big opinions (as expected) were not handed down. I would think there will be two more days (eight opinions in one day is unlikely) with Friday being another order day. Maybe, the orders will be separated. Anyway, to toss it in there, Kagan joined Alito's opinion denying punitive damages in a maritime case, the other liberals dissented. Another safe case for Alito. He's getting in a lot of history these days with WWI crosses, 17th Century double jeopardy and now the history of maritime law.
Gorsuch (Stolen Seat Guy) had two opinions, basically being the swing guy today, though the liberals in one went along with him in part. First, in another split with Kavanaugh (Rapey Partisan Liar Guy) he found a federal firearms regulation void for vagueness (this would be the second time in a week the liberals in a fashion protected gun rights*). As noted there, if we recall his strong dissent last week in the delegation case, it suggests a certain strong consistent wariness about governmental power. OTOH, recall he went along without comment in the travel ban case. So.
Yes, his concerns are somewhat non-complete, but it does add complexity to the divisions on this Court. The other opinion, with the liberals (minus Kagan) only joining in part this time, blocks a FOIA request by a newspaper regarding SNAP related data. I saw this case pop up in orders repeatedly, so it appears some justices were particularly interested. The liberals would send the case back to determine if the material is truly protected under the rules. Of mild interest, but might be of some concern. More here (including on "wooden" textual analysis); this is important in part because the overall issue is a matter of public concern.
The result in the final case -- the FUCT trademark ruling -- is expected. The only thing really in play was the possible breadth. Kagan (helping to clarify an earlier opinion with two wings) bluntly deemed not allowing the mark as immoral or scandalous as viewpoint discrimination in a short opinion. Alito went along, flagging this as a time when free speech is being threatened (multiple people think this is a subtweet to college campus protests).** Roberts rather decide things more narrowly as does Breyer and Sotomayor, all (with Breyer joining Sotomayor's most extensive remarks).
[To add one more thing, the big picture issue here basically turns on the point of trademarks. They are in place to help inform people a commercial item is tied to a certain individual or company. There repeatedly is some significant expressive content here. "FUCT," e.g., is supposed to send a certain message. Given traditional free speech rules, including unconstitutional conditions, viewpoint discrimination here is dubious. This isn't government speech as such. They don't "endorse" a Nike trademark. It is a government benefit, but one -- like marriage or whatever -- that should be supplied neutrally.]
What this will amount to long term maybe is somewhat unclear -- the law at issue was around since the 1940s and only recently was this sort of thing deemed unconstitutional -- but it would not surprise if more commercial related regulations will fall by the way-side. At any rate, expect some people to submit claims for various offensive sounding trademarks. More discussion of these cases can or eventually will be found at SCOTUBlog, Take Care and other such places. More opinions on Wednesday.
---
* Reading Kavanaugh's dissent, the point is even more striking. We have a concern an important gun regulation, necessary for public safety, is wrongly being struck down. It's a strong dissent. I will remain agnostic on how strong it is on the merits. But, it the sort of thing that can split ordinary ideological lines. Also, as Leah Litman notes in her discussions at the two blogs cited, the case is best seen as fitting into a wider whole of recent case law.
** Justice Alito's concurrence warrants further comment:
Viewpoint discrimination is poison to a free society. But in many countries with constitutions or legal traditions that claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country. At a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination. We reaffirm that principle today.Tad strong there. He also shows, especially counting noses, a more narrowly drawn statute might be acceptable to a majority:
Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas. The particular mark in question in this case could be denied registration under such a statute. The term suggested by that mark is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary.A non-absolutist stance on free speech was the subject of one of Elena Kagan's few works of scholarship. But, how sound is Alito's comment? The trivialization of the word "fuck" here is directly challenged by a major First Amendment landmark (Cohen v. California, "fuck the draft" case). What exactly is a "real" part of the expression of ideas? The concern of Breyer during oral argument is more racial epithet though since the last case in this area involved "the Slants," not sure where to take that.
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