Showing posts from June, 2024

Could Congress Reinstate Chevron?

Dissenting from today's ruling in Loper Bright Enterprises v. Raimondo , Justice Kagan argued that the majority failed to make a case that any of the criteria for overruling a precedent were satisfied. Moreover, she wrote, stare decisis ought to have special force because the overruled decision-- Chevron USA v. NRDC --was a matter of statutory interpretation. As Justice Kagan put it: " Chevron is entitled to the supercharged version of  stare decisis  because Congress could always overrule the decision." Nothing in the majority opinion by Chief Justice Roberts contradicts that point. Nor did he contest a further point made by Justice Kagan--that Congress, in only very rarely mandating that courts review particular agency determinations without the deference Chevron required, apparently had acquiesced in Chevron deference. Why, then, did the majority think it appropriate to overrule Chevron nonetheless? Perhaps it was an oversight. Majority opinions, including Loper Brigh

The Idaho Abortion Case That Wasn't

After an accidental release-and-then-recall yesterday, today the Supreme Court officially issued Moyle v. United States . The district court had held that the federal Emergency Medical Treatment and Labor Act (EMTALA) obligates Medicare-funded hospitals in Idaho to offer abortions when necessary to preserve a pregnant patient's health, notwithstanding an Idaho abortion prohibition that contains a life exception but no health exception. The district court accordingly preliminarily enjoined the enforcement of the Idaho law to the extent it conflicts with EMTALA. The Supreme Court had stayed the district court injunction--i.e., allowed the Idaho law to go into full effect--and granted review. The Justices heard oral argument in April. Today, the Court dismissed the writ of certiorari as improvidently granted (DIG'd in SCOTUS lingo), a decision that only Justice Barrett attempts to explain in any detail. After discussing the Court's decision to DIG rather than address the merit

The Hidden Merits Ruling in Murthy v. Missouri

Both the immediate stakes and the lineup in Murthy v. Missouri  indicate that the case was decided on ideological grounds. The stakes: claims by COVID conspiracy theorists, election denialists, and their allies that the Biden administration impermissibly coerced social media platforms to suppress their speech. The lineup: a majority opinion by Justice Barrett joined by the other two relatively centrist Republican appointees (CJ Roberts and Justice Kavanaugh) as well as the Court's three Democratic appointees, versus a dissent by Justice Alito and the other two most conservative Justices (Thomas and Gorsuch). Yet the long-term stakes of the case do not have a clear ideological valence. It is easy to imagine a future Republican administration pressuring platforms to suppress messages it deems misinformation--whether those messages contain warnings about the impact or reality of climate change, use gender-inclusive pronouns, or otherwise offend extreme conservative sensibilities. As e

Justice Kavanaugh's Concurrence in Rahimi Contains a Whopper of an Error (or Worse)

In a few hours, SCOTUS will release a fresh tranche of opinions. I'll then read furiously (in both senses of "furiously," in all probability) and, assuming I find something worthwhile to say, return with some thoughts on one or more of those opinions later in the day. Expect the same from me and/or my co-bloggers for the rest of the week and possibly into next week if the Term is extended. In the meantime, before you log into SCOTUSblog or start refreshing the webpage open to the SCOTUS homepage every ten seconds, I thought I'd offer some morning snark about the dishonesty or incompetence on display in Justice Kavanaugh's concurrence in United States v. Rahimi . If you follow me on Twitter/ X , this will be familiar, because I've simply consolidated the thread I posted there yesterday for the benefit of readers who have the good sense not to spend any time on Elmo's dumpster fire of a social media site. Readers will recall that I wrote a blog post about

The Twisted Career of the term "Liberty Interest" Gets Twistier Still in Dep't of State v. Muñoz

There are three main branches of Supreme Court jurisprudence construing the Due Process Clauses of the 5th and 14th Amendments. In one branch, the 14th Amendment Due Process Clause incorporates--that is, makes applicable against state and local governments--most of the provisions of the Bill of Rights. In another branch, both Due Process Clauses are the grounds for unenumerated rights, such as the right to use contraception, the right to marry, and the right to make decisions about one's children's education. Although that second branch--called substantive due process--has long been controversial, Justice Alito's majority opinion in Dobbs v. Jackson Women's Health Org.  asserted that the non-abortion-related substantive due process cases remain good law. Third, many cases under both Due Process Clauses recognize that when the government deprives someone of life, liberty, or property, it must provide fair procedures, what the case law calls procedural due process. In tod

Justice Kavanaugh, Umpires, and the "No Serious Person Approach" to Constitutional Interpretation

Last Friday, eight Supreme Court justices overturned a Fifth Circuit decision holding that someone bound by a domestic relations protective order can't be disarmed without violating his Second Amendment rights. There were a bunch of concurring opinions, and Justice Thomas was the sole dissenter (of course). Mike's analysis of the case is spot on and provides expert commentary on the various opinions. This post is devoted to Justice Kavanaugh's concurring opinion in Rahimi,  which reflects pretty much all that is wrong with constitutional law and originalism. It is one of the most embarrassing, self-owning opinions I have ever read. First, a little background. In Griswold v. Connecticut , the Court struck down a Connecticut law banning contraceptives. Relying on a number of different constitutional provisions, Justice Douglas's opinion gave birth to the right to privacy, which eventually became the basis for Roe v. Wade .  In Griswold , the Court said the following: &q

For Rahimi: Two Cheers (the Result and the Methodology) and a Few Jeers

One would need to be especially cynical to read today's SCOTUS opinion in United States v. Rahimi  as anything other than good news overall. The American gun-rights movement has organized itself around the notion that it takes a good guy with a gun to stop a bad guy with a gun (and yes, for that crowd, it's almost always a guy ). Yet, as Chief Justice Roberts lays out in detail in his nearly unanimous opinion for the Court, Rahimi is a decidedly bad guy. He bashed his then-girlfriend's head against a car dashboard; he then got his gun and fired at her as she fled (or possibly at a witness); he violated an ensuing domestic violence protective order by menacing the ex-girlfriend; he was charged with aggravated assault against another woman; and the police suspected him in at least five shootings. If Rahimi had been found to have a Second Amendment right to go about armed, it is hard to see how anybody would not. Only Justice Thomas dissented. The result of the case is thus wo

SCOTUS Decision in Diaz v. U.S. is Wrong, but it Doesn't Depend on Mind Reading

When Delilah Diaz was stopped at the Mexico/U.S. border, federal agents found 54 pounds of meth in the car she was driving. Under questioning, she denied knowledge of the drugs, saying that the car belonged to her boyfriend. At Diaz's trial, the government called Homeland Security official Andrew Flood as an expert witness. Flood didn't know and hadn't interviewed Diaz. He was called as an expert on drug trafficking and testified that "in most circumstances, the driver knows they are hired . . . to take the drugs from point A to point B," thus undercutting Diaz's "blind mule" defense. Flood's testimony was permitted over an objection by Diaz, who cited  Federal Rule of Evidence 704 (b). It states, in full: "In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier

Groupthink, Echo Chambers, and Republican Extremism: Difference in Degree is Difference in Kind

[Note to readers: This morning, the Supreme Court handed down a decision in Moore v. US , a case that had the potential to upend the entire American tax system and thus to create an economic disaster.  I published Dorf on Law columns discussing Moore six months ago, four months ago, and three months ago.  The Court's decision was a pleasant surprise, but it includes some potential time bombs that are worth considering in detail.  I will turn to that case next week.] What do I think about Issue X, Y, or Z?  More to the point, how do I come to think about X, Y, or Z in the way that I do?  Because I am not a hermit and thus value the thoughts of other human beings, I do what most people do: take as much time and effort as seems appropriate under the circumstances to study the facts and others' arguments, allowing me at least to come to a tentative conclusion after considering the issue's complexity, importance, transparency, and so on. Do I listen to everyone?  Of course n

The Supreme Court, First Amendment Foolishness, and the Irrelevance of Text to Constitutional Litigation

As we wait for what is sure to be a cacophony of calamitous cases coming later this week and next, I thought it might be interesting to drill down on the text of the first amendment to show how little the words of the Constitution matter to actual constitutional doctrine. Although this blog post is devoted exclusively to the first amendment, the discussion of how far the Court has strayed from the plain meaning of the text applies across constitutional law, as I showed here in a much longer piece. For example, I won't discuss in this post the invisible federal equal protection clause, the invisible anti-commandeering clause, and the Court's decisions turning around the clear text of the 11th Amendment to mean the opposite of what it actually says, and so much more. Today, is first amendment day here at Dorf on Law. The first amendment says the following: Congress shall make no law respecting an  establishment of religion , or prohibiting the  free exercise  thereof; or abridgi