Supreme Court

With Chief in Charge, SCOTUS Strikes Down Louisiana Abortion Law and Eliminates CFPB Independence (Updated)

The Chief Justice provides the pivotal vote in the June Medical Services abortion case and Seila Law v. CFPB.

|The Volokh Conspiracy |

The Supreme Court handed down three big opinions today, each of which was closely divided. Here is a quick run down, with more to follow on these cases in later posts by various VC contributors.

First, the Court decided Agency for International Development v. Alliance for Open Society International, upholding a limitation on USAID grant funding to organizations with "a
policy explicitly opposing prostitution and sex trafficking" because foreign corporations operating abroad "possess no rights under the First Amendment," even if those corporations are affiliates of domestic entities. Justice Kavanaugh wrote for the majority, joined by the conservative justices. Justice Thomas concurred. Justice Breyer dissented, joined by Justies Ginsburg and Sotomayor. Justice Kagan was recused.

Second, in June Medical Services v. Russo, the Court struck down a Louisiana law regulating abortion providers, largely on the grounds that the law closely resembles an equivalent Texas law struck down in 20  in Whole Women's Health v. Hellerstedt. Justice Breyer wrote for the liberal justices. Chief Justice Roberts concurred in the judgment that abortion providers have "third-party standing" to challenge the law's restrictions, and that the law should be invalidated under Whole Women's Health, even though Roberts dissented in that case, and still maintains that it applied the wrong standard. The four remaining conservative justices all dissented on various grounds. Here's how they broke down:

THOMAS, J., filed a dissenting opinion. ALITO, J., filed a dissenting opinion, in which GORSUCH, J., joined, in which THOMAS, J., joined except as to Parts III–C and IV–F, and in which KAVANAUGH, J., joined as to Parts I, II, and III. GORSUCH, J., and KAVANAUGH, J., filed dissenting opinions.

Third, and finally, the Supreme Court held in Seila Law v. Consumer Financial Protection Bureau that the structure of the Consumer Financial Protection Bureau is unconstitutional. Writing for the Court, Chief Justice Roberts holds that the for-cause removal provision, which is the source of the CFPB's status as an independent agency is unconstitutional. Justice Kagan dissents.

As Chief Justice Roberts explains the decision:

While we need not and do not revisit our prior decisions allowing certain limitations on the President's removal power [i.e. Humphrey's Executor and Morrison v. Olson], there are compelling reasons not to extend those precedents to the novel context of an independent agency led by a single Director. Such an agency lacks a foundation in historical practice and clashes with constitutional structure by concentrating power in a unilateral actor insulated from Presidential control.

We therefore hold that the structure of the CFPB violates the separation of powers. We go on to hold that the CFPB Director's removal protection is severable from the other
statutory provisions bearing on the CFPB's authority. The agency may therefore continue to operate, but its Director, in light of our decision, must be removable by the President at will.

The Court is 5-4, along traditional ideological lines, on whether the for-cause removal provision, as applied to a single-director agency, is constitutional. Two of the five (Justice Thomas, joined by Justice Gorsuch) would hold that all for-cause removal provisions are unconstitutional (i.e. that Humphreys's Executor was wrong and should be overruled.

On the question of remedy, the Court is 7-2. Chief Justice Roberts, joined by Justices Kavanaugh and Alito hold that the removal provision is severable from the rest of the statute creating the CFPB. Justice Kagan and the other liberals join this holding. Justice Thomas, joined by Justice Gorsuch, would not reach the severability question at all, and "would resolve this case by simply denying the CFPB's petition to enforce the civil investigative demand." In other words, there was not a single vote to strike down other portions of the statute on inseverability grounds.

Two quick thoughts on Seila Law. First, it's the only major opinion (thus far) in which the Chief Justice has stuck with the other conservative justices. He broke ranks in June Medical ServicesBostock and the DACA case, but not here. Why? Perhaps because he cares more about this issue. After all, this opinion follows from his opinion in Free Enterprise Fund v. Public Company Accounting Oversight Board, in which the Court invalidated the PCAOB's "double for-cause" removal provision.

Second, the Chief's opinions in FEF and Seila Law seem to be the separation-of-powers versions of the Lopez and Morrison commerce clause decisions in that they declare "this far but not farther." In Lopez and Morrison, Chief Justice Rehnquist (for whom Roberts clerked) cast doubt on the logic of the New Deal era commerce opinions, but would only hold that they could not be extended. Likewise, in FEF and Seila Law, Chief Justice Roberts casts doubt on the logic of Humphrey's Executor, but simply declares that it will not be extended to agencies with novel structures. In both cases, Congress is free to do what it has done before, but it cannot extend the boundaries of what is constitutional. In this respect, the Chief's Seila Law opinion is consistent with his minimalist, status-quo orientation—what I have called a doctrine of "anti-disruption"—that we also see in other opinions of his this term.

There will be more opinions tomorrow. There is one opinion left from those cases argued prior to the Covid-19 shutdown (Espinoza, concerning government aid to religious schools), and nine cases argued via teleconference in May. I would think the former is likely to be handed down tomorrow, but the Court will not finish all of its work in June.

NEXT: As New Lockdowns Loom, How Did We Get Here Again So Quickly?

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  1. Roberts has shown that is he fully on the left now. I doubt he would have been on the right side of Citizens United, Heller, or Parents Involved if they were decided today. The left’s court packing threats worked.

    1. Invalidating the structure of the CFPB is on the left?

      1. And inviting federal death penalties?

        1. …Destroying labor, rolling back voter and civil rights protections … yep, obviously a man of left.

        2. The court declined to here the federal death penalty cases.

          It only takes four justices to grant certiorari. If all four liberal justices supported taking those cases they could have forced it.

          Therefore at least one of the liberal justices was unwilling to hear the federal death penalty cases.

          1. No; at least one of the liberal justices was unwilling to let the 5 conservative justices decide the death penalty cases.

      2. Yes cleaning up shitty unworkable left wing policy so that the democrats can escape responsibility for it has long been a Supreme Court speciality. Started with the NRA.

          1. New Deal, FDR.

          2. Lol I bet you were visibly smug when you typed that.

            1. I laughed too.

          3. NRA – National Recovery Act.

            1. So if the court upholds Democratic legislation it is obviously leftist, and if throws out Democratic legislation it is helping Democrats evade responsibility for bad laws they pass, hence also leftist.

              That’s the kind of logic I expect from the right.

              1. It’s a logic that requires analytical ability. If it’s a left wing program that can be saved from its low IQ authorization (Obamacare) mountains will be moved to protect it. If it’s conception was so haphazard and silly that it risks embarrassing leftists NRA (rofl) or CFPB it’s gets tidily euthanized.

                Meanwhile republican presidents can’t even rescind illegal executive orders. Think of it as liberal privilege and like it’s explained to me about white privilege if you benefit from it you can’t see it and your protestations about it’s non-existence are signs of your extremist and potential dangerous defense of privilege.

                1. Shorter Sam: Yes, bernard, all decisions are necessarily leftist. And also, I don’t understand the concept of white privilege, at all.

                  1. This sounds like Bull Conner- listen boy this is a left wing town and any you moderate agitators come down here- well, we got methods of handling agitators.

      3. Its a minor issue.

        On the big issues he is on the left.

    2. What worked is a Soros affiliated crazy person almost assassinating the majority whip. Violence works and going forward it’s not going to be monopolized by people with pockets stuffed with Soros shekels.

      1. Hey a new antisemitic troll!

        1. Using Yiddish is like the Holocaust y’all.

          1. “Shekel” is Hebrew, and yeah, that was an antisemitic comment, not to mention an idiotic one.

            There really are some serious losers around here.

            1. It’s both. You should really know this mr jewish defense league.

              1. Liberal Jews are not real Jews. Their allegiance is to liberalism.

                1. Well that’ll be news to a lot of American Jews. Weird that they still keep Kosher and go to temple.

                  1. The Jews who keep kosher are almost never liberals. The liberal “Jews” are the ones whose only bout with Judaism is fasting on Yom Kippur and showing up at their “Reform” synagogue on the high holidays. Oh yeah, and they also have pretend seders so they can “kvell” while their equally clueless children recite the 4 questions.

                    1. Well I’ll have to tell my conservative Jewish friends who always vote Democratic they’re not real Jews anymore cause an antisemitic troll who wants bad things to happen to people said so.

                    2. “Conservative Jews” aren’t real Jews either. You either follow halakha or you don’t.

                    3. Re: Conservative Jews. If their mother was Jewish, they are Jewish.

                      All the rest is troll-ish commentary. Please stop that.

              2. Fuck you.

                Don’t give me lectures on Yiddish. I grew up speaking the language.

                1. Color me shocked.

                2. Your family must have been poorly educated.

          2. How cute. Russian bots are now using antisemitic tropes. Well, I guess posting here is less harmful than you making more payoffs to the Taliban to murder our soldiers, so I’ll look at the glass as half-full.

            Y’all.

            1. “russian bots”

              lol

    3. Court packing or extortion?

      1. Neither one.

        Just Roberts acting on his views, in good faith.

        Look, I think the guy has taken some seriously bad decisions, and made some dumb arguments, but I’m not going to claim that he, or other justices, were somehow illicitly pressured into them.

        1. He voted just the opposite on this issue just a handful of years ago.

          1. Stare decisis is a real thing. The public would kind of notice of the Texas law was unconstitutional but just a few years later the Louisiana one was constitutional. It is very well known that Roberts is concerned with the legitimacy of the Court.

            If he could pretend he was addressing a new slice of this issue, he would’ve voted to curtail abortion rights (as he did in the Texas case), but there is no principled way to differentiate this case from the Texas case and he cares more about stare decisis and the legitimacy of the Court then he does about getting the “right” anti-abortion result or placating random internet commenters.

      2. You probably couldn’t design a case where stare decisis was so obvious the call. Like its Texas predecessor, the Louisiana law is pure disingenuous hypocrisy. I doubt even the most craven Right-wing toady here honestly believes the legislators of those two states cared about women’s health while enacting the restrictions. Dishonesty in lawmaking isn’t rare, but it’s seldom so transparent.

        So not only is the law a fraud, but it’s a fraud decided only four years ago. What the hell did you expect Roberts would do? It’s his responsibility to protect the legitimacy of the court: to keep the SOTUS as something other than an operations wing of the Republican party.

        Look on the bright side : First, Robert’s conservatism (for conservatism it was) might have saved a GOP Senate seat or two from being sucked down into the black-hole known as Donald John Trump. Plus, I’m sure the votes are ultimately there for your womb management jihad. You’re just need to be patient a while longer….

        1. “I doubt even the most craven Right-wing toady here honestly believes the legislators of those two states cared about women’s health while enacting the restrictions.”

          A reminder, once again, that about half of all the aborted are female, and being aborted is really hard on your health.

          What did I expect Roberts to do? Well, this, frankly, after the last year, if you’re not talking normatively. But he struck this law down according to a precedent he himself had dissented from, and you’d think would thus think fit to be overturned. So it’s not like voting this way was a non-brainer.

          1. “But he struck this law down according to a precedent he himself had dissented from, and you’d think would thus think fit to be overturned.”

            That’s assuming that disagreement with a ruling is all that’s required to overturn it. But Roberts himself has been very explicit that this isn’t the case, going back to his confirmation hearing:

            “I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough—and the Court has emphasized this on several occasions. It is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question. It just poses the question. And you do look at these other factors, like settled expectations, like the legitimacy of the Court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis. . . .

            That is the general approach when you’re considering stare decisis. It’s the notion that it’s not enough that you might think that the precedent is flawed, that there are other considerations that enter into the calculus that have to be taken into account, the values of respect for precedent, evenhandedness, predictability, stability; the considerations on the other side, whether a precedent you think may be flawed is workable or not workable, whether it’s been eroded.

            So to the extent that the statement is making the basic point that it’s not enough that you might think the precedent is flawed to justify revisiting it, I do agree with that.”

            1. But upholding the Louisiana law wouldn’t have overruled Whole Women’s Health and made the Texas law retroactively legal. Both the majority opinion in Whole Women’s Health and the plurality opinion in this case treated Casey as requiring a balancing test. There’s nothing odd or inconsistent about balancing tests of two different laws in two different states reaching different results. Which is probably why the plurality does not treat the outcome of Whole Women’s Health as having decided this case (even if much of the analysis is similar).

              Despite his paean to stare decisis, Roberts rejects the balancing test in Whole Women’s Health. Which seems like an awfully odd form of stare decisis. It’s hard to see how rejecting the reasoning of an opinion expresses judicial humility and promotes certainty and predictability, regardless of whether you reach the same result in the end. What’s the appropriate standard for evaluating abortion regulations going forward?

              1. Sure it would have. The facts of the two cases are functionally indistinguishable, and Roberts isn’t going to pretend otherwise for plainly political and ends-directed reasons just because the Fifth Circuit has no shame.

                1. “Sure it would have.”

                  No it wouldn’t have, which is why Louisiana didn’t ask for Whole Women’s Health to be overturned.

                  “The facts of the two cases are functionally indistinguishable”

                  The Fifth Circuit lays out several factual differences.

                  “Roberts isn’t going to pretend otherwise for plainly political and ends-directed reasons just because the Fifth Circuit has no shame.”

                  But he is willing to reject the reasoning of Whole Women’s Health, as well as the reasoning of the plurality opinion in this case which follows the reasoning of Whole Women’s Health. How does that promote the principles of stare decisis? “What’s the appropriate standard for evaluating abortion regulations going forward?”

                  1. That of Whole Women’s Health, obviously. It is controlling precedent that hasn’t been overturned. Roberts did not add to the weight of the precedent by adopting its reasoning here (which should provide you some solace), but other considerations weighed against reversing course after two highly controversial and politicized Supreme Court appointments. Doing that would be the most efficient way of saying: I lied in my confirmation hearing, everything is about the result, the Supreme Court Justices are politicians.

                    For obvious reasons, Roberts didn’t want to be seen and didn’t want the Court to be seen as that cravenly political.

                    1. “That of Whole Women’s Health, obviously.”

                      And yet people on the left like Dahlia Lithwick are claiming that Roberts pulled some kind of fast one here.

                      “Roberts did not add to the weight of the precedent by adopting its reasoning here (which should provide you some solace)”

                      Why would that provide me any solace?

                      “but other considerations weighed against reversing course after two highly controversial and politicized Supreme Court appointments. Doing that would be the most efficient way of saying: I lied in my confirmation hearing, everything is about the result, the Supreme Court Justices are politicians.”

                      Other considerations? That sounds like political considerations to me. And citing to political considerations is an odd way to defend the Court against accusations of acting like politicians.

              2. Despite his paean to stare decisis, Roberts rejects the balancing test in Whole Women’s Health.

                No; he denies that this is what WWH did.

                Which — whether that’s accurate or not — is how you change the law without simply saying, “My side has the votes now so everything your side did just a few years ago is now reversed.” You build a framework for a contrary decision over time.

          2. What did I expect Roberts to do? Well, this, frankly, after the last year, if you’re not talking normatively. But he struck this law down according to a precedent he himself had dissented from, and you’d think would thus think fit to be overturned. So it’s not like voting this way was a non-brainer.

            As people have pointed out to you in other discussions, you don’t understand how stare decisis (or much else!) works. “I thought the prior decision was wrong” is not an argument for overcoming stare decisis. (It’s necessary, but not sufficient.)

            Especially when people aren’t forthright about that. Louisiana didn’t say that the Texas decision needed to be reversed. It didn’t say that Casey needed to be reversed. It tried to draw phony bad faith distinctions between its law and the Texas law.

        2. What about the most craven left wingers who claim to care about “gun violence” when they institute measures like waiting periods FOR PEOPLE WHO ALREADY HAVE GUNS?

        3. OK, let ERs refuse to accept them — let one or two die in the parking lot and clinics without doctors who have privileges will be out of business real fast.

  2. Even for Thomas, the concurrence in Selia was quite extreme. Overruling Humphreys Executor basically gives the president full control over all federal agencies and he can fire essentially anyone he wants to. And his point about severability … he said it was limited by only declining to enforce the petition in this case, but if this was precedent, the CFPB couldn’t enforce anything and the agency essentially falls. And Gorsuch signed on to this.

    But I think, overall, with the opinions that did pass, it’s relatively fair.

    1. “Overruling Humphreys Executor basically gives the president full control over all federal agencies”

      Duh. The Article II “Executive Power” is vested in the President.

      1. I will put it like this I suppose:

        If Thomas gets his way regarding the non-delegation doctrine, yeah sure, it is an entirely reasonable position to take as the presidential power will still be limited by that doctrine. The president would be given all the executive power he wants so long as that is limited by the non-delegation doctrine.

        But … if he gets his way on one thing but not the other, that power is extraordinarily dangerous to have.

        I like Thomas generally, but he doesn’t understand that getting one thing and not the other is far worse than getting none. Unless everyone becomes Thomas clones overnight, the bits and pieces that do make it though are not viable.

        1. Concur with you entirely, AC. The momentum in this line of decisions is towards a helluva powerup for the executive. Not a great thing for any party, because it’s not a good thing for the Republic.

          1. Severed from policy wisdom, are you right?

            If we want to maintain the fiction creation of regulations AKA laws with pentalties for violations, can be cast off to the executive branch under the argument such creation is carrying out the law, then that is indeed the job of the president, and under his control.

            You can’t have your cake and eat it too.

            1. I don’t believe the administrative state should be purely a creature of the political executive, or purely an unaccountable monster.

              IMO we’re too over on the unitary executive side of things. Accountability, but at the price of moving with the political winds far more than is effective.

              All these officers are appointed by a President, recall.

            2. Krayt, when Congress delegates a legislative function like rulemaking to members of the executive branch, it doesn’t suddenly become an executive function. The President may still be able to fire those people, and I appreciate that will probably have a big influence on how they operate, but that doesn’t mean he can exercise the power delegated to them.

              1. “Krayt, when Congress delegates a legislative function like rulemaking to members of the executive branch, it doesn’t suddenly become an executive function.”

                How is rulemaking a legislative function? Do you think the regulations enacted by executive agencies would be legal if Congress enacted them on their own without presenting them to the president for signature?

                1. How is rulemaking a legislative function? Do you think the regulations enacted by executive agencies would be legal if Congress enacted them on their own without presenting them to the president for signature?

                  No, but how is that a rebuttal? Rulemaking is legislating.

        2. Not entirely sure I follow. If the President gets the executive power currently wielded by agencies, there’s still the same amount of executive power. And that still applies if the courts fail to stop Congress granting inappropriately delegated powers to the executive.

          So the question is – who wields this executive power ?

          (a) the President or
          (b) sundry appointed administrative johnnies

          Why would (a) be bad, but (b) be good ?

          In practice, under (a) the President is not going to be wielding this power personally, he’s going to be delegating to administrative johnnies. So the difference comes down to – which is better, administrative johnnies answering to President, or administrative johnnies answering to nobody ?

          Why is a nomenklatura a good thing in a Republic ?

          1. The Unitary Executive is not a fact; it is a theory.

            These administrative heads are appointed, they just must be removed with cause.

            1. It’s not so much a “theory” as just a reasonable reading of what the Constitution says: “The executive Power shall be vested in a President of the United States of America.”

              Article III begins, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.“; The same sort of language could have been used in Article II, but conspicuously wasn’t.

              It thus follows that, whatever the executive power is, the President has all of it. That’s the unitary executive. And if the Constitution gives the President all the executive power, Congress can’t constitutionally alienate it from him by legislation.

              1. Delegation of authority is in the Constitution. Removal of officers is something you’re reading into it.

                1. Delegation is different from alienation. In order to be a delegation, the power must be retrievable.

                  And a subordinate you can’t fire isn’t a subordinate anymore, they don’t need to follow orders if you can’t remove them.

                  So it follows that, if all of the executive power is the President’s, constitutionally, Congress can’t assign to exercise it anybody the President can’t fire.

                  1. Congress can retrieve the power whenever it wants.

                    1. So you’re talking about delegation of legislative power.

                      My position on that would be that if regulatory agencies are exercising legislative power, whether Presidents can fire the people working in them is the least of your constitutional problems, because Congress isn’t actually allowed to delegate it’s law making power to anybody else.

                      The regulatory agencies operate on the theory that they aren’t a violation of this, because they are just implementing rules Congress enacted into law, and thus are exercising executive branch power.

                    2. Congress isn’t actually allowed to delegate it’s law making power to anybody else.

                      So then what are inferior officers?

                      Did you think the President could do all the stuff the FDA can do before Congress passed FD&C Act?

            2. me : Why is a nomenklatura a good thing in a Republic ?

              Sarcastro : The Unitary Executive is not a fact; it is a theory.

              An answer to a different question. By all means argue wih Brett about the constitutional interpretation.

              My question is – why is rule by unelected bureaucrats, accountable to no one, better than rule by elected officeholders ?

              The only answer that I can think of is “because the unelected bureaucrats are always my guys, while the elected officials are sometimes on the other side.”

              But I wouldn’t want that even if they were my guys.

              1. So you’re asking a policy question?

                Zeroth, maybe don’t ask questions and then put words in my mouth that say I’m arguing in bad faith; it’s rude.

                First, because of manpower – if everyone is a political appointee, how long would it take to fill an agency?

                Second, because of insulation – if everyone serves at the pleasure of the President, you lurch from admin to admin, with no consistency.

                Political accountability is important, but it has costs. Like most things, moderation is what’s needed.

                1. So you’re asking a policy question?

                  I believe so. Isn’t that obvious from giveaway phrases like “Why would (a) be bad, but (b) be good ?”

                  Zeroth, maybe don’t ask questions and then put words in my mouth that say I’m arguing in bad faith; it’s rude.

                  I have put no words into your mouth. I quoted your reply to my question to Aladdin’s Carpet with terrifying accuracy. It’s also rude to make false accusations, but don’t worry, I have the hide of a rhino.

                  First, because of manpower – if everyone is a political appointee, how long would it take to fill an agency?

                  Everyone does not need to be a political appointee. Everyone needs to serve at the President’s pleasure. Not the same thing.

                  Second, because of insulation – if everyone serves at the pleasure of the President, you lurch from admin to admin, with no consistency. Political accountability is important, but it has costs. Like most things, moderation is what’s needed.

                  Maybe the elected President is occasioally elected by folk who think it’s time for a bit of a lurch. C’mon, the reality is that the insulation is provided by a 95% big government favoring permanent bureaucracy, so that what gets insulated is big government. You think there’s a lot of small government moles in there ? The reality is that the political appointees in a Republican administration are a thin crust on top of a pie that opposes them tooth and nail.

                  Political accountability is important, but it has costs. Like most things, moderation is what’s needed.

                  Sure. There’s no need for a wholesale changing of the guard with every change of administration. The moderate way is to permit a permanent bureaucracy, so long as the President can boot any of them out at will.

                2. The only answer that I can think of is “because the unelected bureaucrats are always my guys, while the elected officials are sometimes on the other side.”
                  That’s the words in my mouth bit.

                  Oh wow, you want the President to be able to fire civil servants? That’s…not better. That’s a HUGE amount of executive power that’s never been a thing since the Founding.

                  If you don’t think the President would want to grow an organization now explicitly loyal to him, you don’t understand incentives.

                  Civil Servants don’t necessarily want to grow the government. Or even their own agency. It’s just a job.

                  1. That’s the words in my mouth bit.

                    Er, no. If it was words in anyone’s else’s mouth (which it wasn’t) it would have been words in Aladdin’s Carpet’s mouth, not yours, since – as I pointed out – you had not attempted an answer to my actual question.

                    Oh wow, you want the President to be able to fire civil servants? That’s…not better.

                    No, that’s better.

                    That’s a HUGE amount of executive power that’s never been a thing since the Founding.

                    It’s still the same amount of executive power – just a little better controlled by the elected guy.

                    If you don’t think the President would want to grow an organization now explicitly loyal to him, you don’t understand incentives.

                    Sure he would. But he only gets four years to do it, before facing the voters. And eight at max.

                    And since, as we see, Trump has struggled to find a few thousand folk to fill the spots he is allowed to fill, it’s unlikely that any President is going to get round to replacing a couple of million federal civil servants in four years. if wikipedia is to be believed, the shocking corpse count of Andy Jackson’s march through the nomenklatura amounted to 919, or less than 10% of federal officialdom. Oh the horror !

                    The same sort of thing applies in a large corporation. The CEO knows he can’t fire everybody, or else the business will grind to a halt. But he can certainly fire people who he thinks are not pulling their weight or who are working against the business strategy. Even if they are fervently working for the strategy of the old CEO who was fired last year, and which the new CEO has rejected as nuts.

                  2. “Oh wow, you want the President to be able to fire civil servants? That’s…not better. That’s a HUGE amount of executive power that’s never been a thing since the Founding.”

                    To the contrary, it was the norm until the latter part of the 1800’s (with fairly unhappy results).

                    “Civil Servants don’t necessarily want to grow the government. Or even their own agency. It’s just a job.”

                    In my experience of bureaucracies, the Iron Law is generally accurate, and it leads to empire building that certainly tends to grow the agency.

                    Not all, to be sure, but most. I once worked for a federal lab that recommended that it be dissolved because its budget exceeded the costs of the problem it was supposed to solve. Heh. Its budget was increased.

    2. Why is it unfair to have the head of the Executive Branch actually in charge of executive branch agencies?

      1. Republican presidents need to be saddled with fifth columnists otherwise billionaires might only get 92 percent of what they want not 100 percent.

        1. You…think billionaires are working with the LEFT?

          Ain’t that Agenda-21 of you.

          1. Plenty of left billionaires.

            You are assuming “left” means Marxist, it doesn’t, it just means “liberal” or “progressive”.

            1. There’s a distinction?

              1. Well I lived to see it : Bob from Ohio a squish (at least to Dr. Ed)

            2. He’s talking about billionaires as a class using resistance to Republican policies to get what they want.

              Even you have to see that’s not where the two parties are. The unfettered markets of the right are not some blight on a billionaires’ desires.

              1. “unfettered markets”

                in the US? “unfettered” LOL

                Billionaires can prioritize social issues over economics just like other people can.

                1. That’s what the right wants. Do you disagree?

                  Again, you are talking about individual billionaires, whereas Haysom was pretty clearly talking about them as a collective class.

              2. Did the current Republican President just suspend new green cards and H1B visas, causing 93% of the nations billionaires in the tech industries to reach for the smelling salts ?

                1. Not a problem if we get rid of all those union regs.

                  1. How many tech companies are unionized?

              3. Even you have to see that’s not where the two parties are. The unfettered markets of the right are not some blight on a billionaires’ desires.

                Sure they are. Liberals have never understood that pro-market and pro-business are generally very different things.

                (Which is why there are no “unfettered markets of the right.” Republicans aren’t libertarian.)

                1. Trickle down was of the right, and continues to live on in right-wing circles.

                  I’m interested in your pro-market vs. pro-business distinction. I generally think of pro-markets leading to an Dickensian morass, where businesses get fat profits off of unregulated labor and no environmental standards. Seems quite pro-business to me.

                  But maybe I’m essentializing this blog’s desires too much.

            3. Please be sure that your fellow conservatives, many of whom routinely conflate Marxism with progressivism (see Dr. Ed’s comment below), are aware of this.

              1. Marxism and progressivism are obviously not the same thing, they’re just cousins. Of course there are other cousins, but it might be rude to mention them.

                The shared genes are : –

                1. the centrality of “group” interests
                2. the primacy of theory over practice*
                3. the notion of a predestined historical path

                * which explains why both Marxists and progressives love academia

                1. As with horoscope columns, those “shared genes” are vague enough and widespread enough to encompass just about anything. Off the top of my head I can think of probably a dozen “isms” that that might apply to.

                  Yes, there are similarities between Marxism and progressivism. There are similarities between Marxism and libertarianism. But in both cases, the differences are far more significant than any similarities. Progressivism is democratic, favors civil liberties and fair elections, and is not anti-capitalist. Marxism is none of those things.

                  1. Libertarianism certainly has a 2ish flavor, but it doesn’t score too well on 1 or 3. So I think it would be a stretch to describe it as being encompassed by the specified genes.

                    Conservatism is heavily negative on 2 and 3, and a pretty dubious performer on 1 as well. So no.

                    But I agree there are other -isms in that genetic family.

                    I’d agree that progressivism is much more comfortable with democracy than Marxism is, but I’m not quite sure the commitment is always that deep. I don’t believe Sarcastro is a commie, but here he is on this very thread being really uncomfortable about the idea that the government’s executive functions should be overseen by the elected head of the Executive branch. And the basis for the concern sees to be the haunting fear that the people might vote for the wrong politicians.

                    1. My point was not that libertarianism has those specific similarities. My point is that if you’re looking for similarities you’ll find them. It’s called confirmation bias and you’ve got it in spades.

                      With respect to your final paragraph, how is that different from conservatives insisting we need an electoral college so California and New York don’t elect the wrong president? I myself do not approve of attempts to thwart democracy by either the left or the right, but it’s a world class howler to claim only one side does it.

                    2. how is that different from conservatives insisting we need an electoral college so California and New York don’t elect the wrong president? I myself do not approve of attempts to thwart democracy by either the left or the right, but it’s a world class howler to claim only one side does it.

                      I’m not claiming only one side does it. I’m just claiming that progressive commitment to democracy is not quite an article of faith. More of a tactical stance.

                      I’m not a big fan of democracy myself – I incline to the Churchillian view on the subject. But when hunting about for checks and balances to keep the democratic mob at bay, I’m much more comfortable with the founders’ ideas of dividing government power into rival armed camps that can keep an eye on each other, than the idea that we should be ruled by a permanent bureaucracy.

                      The point of democracy is not the “moral weight’ of government according to the will of the majority, it’s simply that it provides a practical means of ejecting rulers from power without the trouble of a revolution.

                      The oldest question in politics is “quis custodiet ipsos custodes ?”
                      And it’s the oldest question because there’s no answer. Democracy is the best muddlethrough tactic we’ve come up with.

                    3. If you’re not claiming that only one side does it then why single out “progressive” commitment to democracy for special skepticism? You’ll find people with authoritarian tendencies in any camp but I’ve yet to see any real evidence that progressives, pound for pound, have any more than anybody else.

                      And while I share your skepticism about democracy itself, the problem with anti democratic institutions like the EC is that they assume the political minority will get it right any more often than the political majority. I see no evidence of that either. And if you’re going to deprive the majority of self governance I think you need a far better showing than what’s been offered so far.

                      But going back to progressives and Marxists. Any resemblance between the two is purely superficial and an attempt to smear progressives. Kind of like conflating conservatives with white supremacy.

                    4. If you’re not claiming that only one side does it then why single out “progressive” commitment to democracy for special skepticism?

                      Because we were discussing the relationship between Marxism and progressivism, and you specifically said “Progressivism is democratic” which I felt deserved at least a small questioning cough. If we had been discussing, say, conservatism and libertarianism and you had been insisting on conservatism’s commitment to democracy (or libertarianism’s for that matter) you would also have got a cough.

                      You’ll find people with authoritarian tendencies in any camp but I’ve yet to see any real evidence that progressives, pound for pound, have any more than anybody else.

                      I beg to differ. Obviously progressivism is a much milder form of authoritarianism than Marxism. And modern day conservatism is much a milder form of authoritarianism than Le Roi Soleil.

                      But inherent in progressivism is a big role for the government, which entails a big role for government enforcement. Certainly modern conservatives are a bit authoritarian on a few issues that bug them, mostly to do with God and sex, but on the whole their ideas of the proper role of government – that on the whole there should be a bit less of it – mean that they have less for government enforcement to do.

                    5. And I think conservatives are every bit as authoritarian as progressives, just on different issues. It’s conservatives who are blocking the abolition of qualified immunity for the police. And blocking civil asset forfeiture reform. And increasingly finding creative ways to limit access to the courts.

                      Plus, as I’ve said before, progressives want to use government to do things FOR people; conservatives want to use government to do things TO people. That’s not an insignificant difference.

                    6. progressives want to use government to do things FOR people; conservatives want to use government to do things TO people. That’s not an insignificant difference.

                      A difference of frame, surely. Doing things FOR people, necessarily involves doing something TO other people (indeed sometimes also involves doing things TO the people you are doing this FOR, if you’re determination to help gets a little eager.)

                      So – for example – Obamacare tries to do things FOR all those folk who have pre-existing conditions, and it achieves this by doing things TO everybody else who wants health insurance, taxpayers, everyone involved in the healthcare sector and those with pre-existing conditions as well. It may be a noble effort – opinions differ – but it certainly doesn’t eschew doing things TO people. In spades.

                      But if your point was that progressives generally suffer more from delusions and don’t appreciate that their FOR-ing is going to cause some TO-ing as well, then fine. There does seem to be an element of lefty psychology which finds it hard to accept the concept of trade offs.

                      Take qualified immunity – on which I have no fixed opinion, just a middling prejudice against. The good of qualified immunity is that it helps a police officer do his difficult job well on the spur of the moment, without worrying whether he’s going to lose his house, if a 20-20 hindsighted court makes a different call. Getting rid of it risks doing bad stuff TO crime victims. The bad of it is that it allows bad officers and bullies to get away with beating up the pubic for their own amusement. That risks doing bad stuff to the public that gets beaten up. The “right” answer to the pros and cons of qualified immunity is not obvious.

                      We read egregious cases and think wtf. On the other hand, if we read foreign newspapers, from places where the police don’t have qualified immunity and we see other kinds of wtf. I recall seeing a report of child drowning in a shallow pond in England, where a police officer stood by the pool calling for assistance, because police regs – fearful of civil suits by members of the public, or injured police officers – forbade him from wading in without back up.

                    7. I suppose that having put a toe in the water on “qualified immunity” for the police – a subject about which I know even less about than the other ones on which I offer opinions on this blog – I ought to add that my moustache twitches even more vigorously when it comes to the absolute immunity of prosecutors.

                      Again I can see the pros of it, but since prosecutors do not have to act, as the police often do, on the spur of the moment, qualified immunity for the police seems easier to justify than absolute immunity for prosecutors.

                      But this may simply be a visceral thing – the instinctive fear and loathing that arises whenever one contemplates the legal profession.

                    8. Doing things for some people sometimes does require doing things to other people, yes. Sometimes, it’s more a matter of reorganizing things. But that has little to do with the original point of this conversation, which is whether progressives are more inclined to be authoritarian than conservatives are. They’re not; they just approach authoritarianism differently and apply it to different issues.

                      We have a system of checks and balances that essentially makes it impossible to get anything done unless everyone is on board, unless one side or the other manages to completely run the table multiple elections in a row. Whatever may be said in favor of such a system, it gives us monstrosities like Obamacare, which combines the worst of all possible worlds, because the only way to get *anything at all* passed is by appeasing all the people that need to be appeased. So it costs a lot more and achieves worse results than a far more efficient straight up and down single payer system would, which is what I advocate. But that would not do much of anything TO anyone because the private health care bureaucrats would simply become public health care bureaucrats. Nobody loses their job; they’re just now working for the state rather than for Blue Cross. Blue Cross itself ceases to exist, but the money that would be saved by streamlining our current crazy quilt of medical care providers could provide a handsome buyout for Blue Cross stockholders so they do fine as well. So, nobody is having anything done TO them. The reason things are done TO people under Obamacare is because it’s a costly monstrosity necessitated by our system of checks and balances. And, don’t go blaming progressives, therefore, when pure progressivism would have achieved a far better result.

                      That said, there will be times when progressivism does things to people. But that’s true of any system.

          2. Sarcastro, They are quite obviously. And the Fortune 500 companies are tripping overthemselves to gleefully promote Black Lives Matter, a wonderful distraction and division tactic against any kind of meddlesome populist or nationalist politics that could actually benefit black people.

            1. You think corporations are doing that for ideology and not profit? You’re not such a rube as that, man.

              The right stands for billionaires. As a class. That’s like, part of their economic argument. Amazing y’all are trying not to own it.

              1. They are doing it for profit, which is exactly what I was just saying. I guess you don’t get it. Mass immigration keeps wages low, and bad trade deals allow big businesses to get rich off of selling out the American people.

          3. You…think billionaires are working with the LEFT?

            ROFLMAO! Oh, you.

  3. “even though Roberts dissented in that case, and still maintains that it applied the wrong standard”

    JFC. Its a recent case. Rote adherence to recent precedent is stupid. If you thought it was wrong two years ago, it is still wrong.

    He is a weak pathetic fool.

    1. I have been hoping that RBG would get COVID and kick the bucket, but now I’m hoping Roberts does.

      1. Of course you do. You’re a bad person.

        1. He’s just expressing Prof. Blackman’s position in a more pointed manner.

        2. Nope. I just wish bad things on bad people.

          1. Yeah. Because you’re a bad person.

            1. If you support liberalism, you’re an evil person.

              1. Weird how me supporting liberalism also doesn’t lead me to wish other people ill or justify rape and murder like you do.

    2. Maybe Plaintiffs should have actually asked to overrule Whole Women’s Health?

      1. If they did, you don’t think Robert’s would have made up another excuse?

        1. That’s a trickier question. I’m not so sure. But I knew as soon as the Fifth Circuit decided to completely ignore WWH that Roberts would not be pleased. The Supreme Court is supreme and lower courts just straight-up ignoring recent precedent is not something he would accept. That’s true for him whether it’s the Ninth Circuit ignoring conservative precedents or the Fifth ignoring liberal ones.

          1. I think this explains most of the case. I know there are asserted differences, but the Fifth Circuit’s decision certainly had the FLAVOR of “let’s try to send this up again now that we have Kavanaugh on the Court’. And that was just way too obvious for Roberts.

            Courts of Appeals can’t just disingenuously ignore recent Supreme Court precedent. We all know this.

            1. I said below that when push comes to shove Roberts would eventually gut/overrule Casey but save conservatives from themselves by not destroying the possibility of constitutional limits on state reproductive regulation. He’s not going to let them destroy themselves by letting them prosecute miscarriages, make rape victims give birth, or let women die when a doctor says she can’t carry a pregnancy to term.

        2. Exactly. Its chaos theory: Roberts finds a way

          1. They would not have taken the case.

  4. I’ll have to look more closely at Selia, but I remember Kavanaugh’s dissent in the DC Circuit case on the same issue being pretty persuasive. It’s also notable, and the Court and Kavanaugh DC Cir. dissent addressed this, that both Warren and the Obama administration wanted it to be a commission like CPSC or FTC. IIRC Senate confirmation politics resulted in the single Director structure.

    But, this decision has a huge upside for Democrats: the current director can be removed at will by the next Democratic president and will be replaced with someone who actually wants to run the agency.

    1. “will be replaced with someone who actually wants to run the agency.”

      Agency, what agency?

      1. Still an agency even if it’s not independent.

        1. It won’t be there anymore. The current wizard was appointed to torpedo this damn thing. The agency motto should be the Reagan quote about government and helping.

    2. “this decision has a huge upside for Democrats: the current director can be removed at will by the next Democratic president and will be replaced with someone who actually wants to run the agency.”

      And then the next GOP president can do the reverse.

      That is the way its supposed to work.

  5. I’m not a doom and gloom guy, and I don’t want to diminish this victory, but but the CFPB decision is going to screw with our administrative state in countless ways for a long time.

    It’s procedural so it’s subtle, but it’s probably the most important decision of a pretty momentous term, and it’s awful. For both right and left.

    1. I’m not so sure it will matter much in the long run. So many important areas, like environmental regulation, are already subject to direct Presidential control anyway. Which things get independent status and which don’t is sort of an accident of history. Now, if we ever reach a point where the Court concludes that civil service protections are unconstitutional, then that will be extremely bad.

      1. We’ll see.

        Eroding the independence and scope of agencies seems a pretty easy backdoor to the small government Republicans think the Constitution mandates.

        1. True. And I agree with the discussion above that strong unitary executive theory combined with a very broad non-delegation doctrine is extremely problematic from a governance standpoint, although Congress could technically always be more specific if it chooses.

          But in the end, the Republican approach to small governance already has a bunch of back doors anyway. You can always just appoint commissioners who want to destroy the agency. Or just don’t appoint/confirm anybody and let it be knee-capped.

          1. Which is why independent agencies were an important bulwark.

            This may be a slow burn, but to mix metaphors I see some storm clouds agatherin’.

            1. Which is why independent agencies were an important bulwark.

              Interesting way to put it. Not exactly a bulwark protecting democracy, if the point is to keep executive power out of the hands of the elected President. Nor a bulwark to protect the legislative branch, since the Congress can take away powers from agencies as it pleases. So what are independent agencies a bulwark against ?

              Eroding the independence and scope of agencies seems a pretty easy backdoor to the small government Republicans think the Constitution mandates.

              Aha !

              A bulwark against the dreadful possibility that elections could have consequences.

            2. I don’t see working around the results of elections so one party can entrench its policies as a good thing for democracy, rather than just another two-bit antifreedom, antidemocracy trick.

              1. Sounds like you hate the SCOTUS too, Krayt.

                The unitary executive is many things; a force for small government and freedom it very much is not.

                1. I’ve made this prediction before, and I will make it again now.

                  The Supreme Court will never adopt any separation of powers test that renders the Federal Reserve unconstitutional. Thomas and Gorsuch may well be that crazy; the rest of the Court is not.

                  1. Yeah. Are there any banking or corporate interests who would even want such a thing? I’m trying to think who benefits besides Austrian school economists and some hard core libertarians.

                    Plus, assuming the Justices vote with their portfolio from time to time, I don’t think they’ll relish the idea of Trump Jr, AOC, or whatever gold standard libertarian becomes President having lots of control over monetary policy.

          2. Congress really cannot be more specific. They do not have enough knowledge to be more specific. More than that though, Congress cannot react quickly enough to changing facts to pass more specific legislation. Can you imagine the chaos if Congress had to pass a new bill for every agency regulation that is promulgated now?

            1. We’d have to be less micro-managed? The horror!

        2. It’s not small government per se. It’s representative government that is controlled by the people rather than unelected bureaucrats.

          1. It’s literally unworkable in the modern era. And also contemplated by the Constitution.

    2. “screw with our administrative state in countless ways for a long time”

      Excellent.

      [Best read in Mr. Burns voice]

      1. Not always great for conservatives either, Bob. Much easier now to repeal what Trump did and replace his people.

        We’re trading our uniquely resolute government for a more agile but also more flighty one.

        1. “Much easier now to repeal what Trump did and replace his people.”

          So? That is the way its suppossed to be.

          The independant administrative state has been a disaster.

          1. Who says that’s how it’s supposed to be?

            1. The first sentence of Article II of the Constitution.

              [I guess “who” are Founders, if you want to be pedantic]

            2. The people who wrote and ratified Article II of the US constitution.

              1. I don’t believe Article II requires all executive appointments must be removable at will.

                1. So how do you think it should work? (Based on the constitutional text, I mean, not your ideas about good policy.) Are there any limitations on how Congress can insulate executive officers from the president? Was the Tenure of Office Act constitutional after all?

                  1. The President can, of course, remove his own staff at will.

                    But I see no Constitutional requirement that Congress, when delegating it’s own power as contemplated in the Constitution, must allow the Executive sole discretion in dismissal of it’s officers, or indeed even in the hiring therof. (See: requirements such as the FEC).

                    Do you believe independent agencies are all unconstitutoinal?

                    1. They’re ALL his staff. There are only three branches of government they could be part of.

                    2. But the CFPB isn’t exercising Congress’s power—its duties are squarely executive.

                      Or are you really claiming that Congress could (for instance) pass a bill that would levy a fine on a specific company?

                    3. It’s duties are executive, as delegated and defined by Congress.

                      I don’t see that there has to be a quantized theory of Congressional authority wherein Congress cannot shape the authority to include the hiring method, as well as the contours of it’s ambit.

                    4. They’re ALL his staff. There are only three branches of government they could be part of.

                      You are reading ‘all’ into the Executive Vesting Clause. See what I link below; there are pretty good historical reasons to think that’s not how the Founders saw it.

                  2. I’ve been following this community of anti-unitary executive originalists for a few months now. It’s still not quite clicking with me, but may with those whose legal gears are less rusty:

                    https://twitter.com/jedshug/status/1277638661199335424

    3. Funny, I was thinking somewhat the same thing but came to the exact opposite conclusion. Removing power from the administrative state and returning it to the politically accountable branches sounds like a plus to me.

  6. Interesting developments. While the Court’s “left” wing, can void stare decisis, statutes, and constitutional provisions at will, and Thomas, Alito, and Gorsuch (at times) seem to agree, the Roberts-Kavanaugh axis, will follow precedents. The leftward ratchet of constitutional adjudication continues.

    1. “The leftward ratchet of constitutional adjudication continues.”

      Agreed.

      Roberts is such a fool.

      1. Oh I don’t know; he got a bunch of conservative senators to vote to confirm him. So maybe he’s not the fool.

        1. OMG, senators voted for a nominee from their own party. That never happens.

          His performance has been foolish, he is just ensuring that only “red meat” conservatives get the next GOP appointments.

          1. Assuming, once this clown car administration finally leaves town, there are future Republican appointments.

            1. Yes, I am assuming no planet killing comet.

              1. If the Democrats take the senate and white house, there won’t be.

              2. It would be amusing if the Democrats titled their Court packing act, “The Planet Killing Comet act of 2021”, but I think that unlikely.

                If (When? It should happen eventually even if not this year.) Democrats retake the Senate and White house, they’re not going to leave Republicans ending up in power again up to chance, they’ll take measures. And they’ll likely pack the Court first to make sure they don’t get struck down.

                1. They don’t even need to take that many measures. All they need to do is grant citizenship to all of the illegal Hispanics already here. That’ll be enough to tip Texas and Florida, and then it’s all over.

                  1. Sure, but they’ll probably make Puerto Rico a state, too, for good measure. There’s no kill like overkill.

                    1. Yeah. God forbid U.S. Citizens have a voice in their own government.

                    2. Poll the average white American in 1917 when Congress did this and ask if they supported making Puerto Ricans citizens.

                    3. Why not the black Americans?

                    4. FYI,

                      The <a href=2016 Republican Platform calls for statehood for Puerto Rico. See page 30.

                      We support the right of the United States
                      citizens of Puerto Rico to be admitted to the Union
                      as a fully sovereign state…..We support the federally sponsored
                      political status referendum authorized and funded
                      by an Act of Congress in 2014 to ascertain the
                      aspirations of the people of Puerto Rico. Once the
                      2012 local vote for statehood is ratified, Congress
                      should approve an enabling act with terms for
                      Puerto Rico’s future admission as the 51st state of
                      the Union.

                2. I’m not sure that’s the greatest of your worries. Much as I hate the electoral college, the practical reality is that presidential elections are decided by suburban women in Ohio, Pennsylvania and Florida, and they’ve had a bellyful of Trump and his GOP enablers. Especially now that there may well be five votes on the Supreme Court to overturn Roe v. Wade. It’s entirely possible that Trump may be the last Republican president for a long time.

                  When Trump got the nomination I thought he would destroy the Republican Party. I just didn’t realize he’d have to actually get elected to make it happen.

                  1. I think you overestimate how much suburban women care about abortion.

                  2. “It’s entirely possible that Trump may be the last Republican president for a long time. ”

                    Anything is possible. If one ignores all of American history. 12 years is about the longest period a party is given the White House unless you think there will be a 8 year depression and a world war like the last longer period. Democrats backed a civil war and they were back after 16 years from rejoining the Union.

                    8 years is the post WW2 standard. People tire of one party rule.

                    Those woman voted GOP as late as 2014, they can swing back just as easily.

                    1. Whites do. Hispanics don’t. Otherwise California wouldn’t be a one party rule state.

                    2. Republicans held the White House for all but 16 years from 1860 to 1932 (and Woodrow Wilson just squeaked by both times.) Given the right circumstances the Democrats could do the same. I think you underestimate how much damage Trump has done to the GOP.

                    3. I think you underestimate how much damage has been done to America by the 1965 Immigration Act, which basically said that illiterate third worlders from alien cultures are just as worthy as those from England and Germany, countries whose emigrants built America.

  7. Whole Women’s Health v. Hellerstedt was decided in 2016. (the year was left blank in the original post.)

  8. I’d never before heard of “in 20 in “.

  9. Chief Justice Roberts’ opinion in June Medical could be interpreted – perhaps optimistically – as a conservative counterpart to Kennedy’s opinion in Masterpiece Cakeshop.

    That is, the opinion can be read as instructions to state legislatures about how to pass laws that will be upheld in future cases amd eventually lead to changing the landscape.

    Just as in Masterpiece cakeshop officials shouldn’t openly disparage religion, here they shouldn’t openly try to overturn an existing exactly on-point precedent. They should instead find things that haven’t been decided before. Once these things get decided in their favor, there will then be a bew body of law tending to take things in a somewhat different direction, and over time that can be used to implement gradual change as older precedents get out of line with the current state of the law.

    Not a pace of change that conservatives want to see. Bit with the current composition of the court, it’s marching orders that would best be followed.

    1. Or to at least ask the Court to overrule the precedent you don’t like. If the Fifth Circuit can simply ignore a precedent Roberts doesn’t like, then the Ninth is going to also ignore precedents he does like (even more than it is already said that they do).

    2. reader, Roberts is not playing 15 dimension chess, issuing apparently left wing opinions with secret conservative instructions.

      1. He isn’t?

        In this case the Fifth Circuit openly defied the Supreme Court. The message to both states and lower court judges is don’t do that, I’m not going to support open defiance. If you want my support you’re going to have to do things a different way. The whole point of the opinion is the importance of not making the court look like a political body. It’s all about how to avoid doing that.

        1. I thought the instructions were pretty open. The Masterpiece Cakeshop imstructions weren’t very secret either.

        2. “It’s all about how to avoid doing that.”

          Pretty dumb of him, his unwillingness to be in the majority on important conservative issues like abortion is ensuring a more political court in the future.

          1. Isn’t he signaling his willingness to be in the majority if you actually ask directly instead of lying about what you’re doing?

            1. No. They weren’t lying about what they were doing. They were doing what they were invited to do by Whole Women’s Health.

              Also, I believe his reading of Casey is probably more protective of abortions than the plurality’s. According to Roberts, “[i]n this case, Casey’s requirement of finding a substantial obstacle before invalidating an abortion regulation is therefore a sufficient basis for the decision, as it was in Whole Woman’s Health. In neither case, nor in Casey itself, was there call for consideration of a regulation’s benefits, and nothing in Casey commands such consideration.” For Roberts, the benefits don’t matter, only the burdens.

          2. Could you explain your thinking there, in a way that doesn’t define “political” as “reaching a decision I don’t like”?

            1. Well, political means that political considerations will be the only thing that matters in selection of justices.

              GOP nominees are going to have a long public record on hot button topics. If you aren’t strongly pro-life, you are not getting the nod.

              I bet you think Ho and Rao would be bad picks. In the future they might not be considered safe enough.

              1. At least Ho wasn’t a district judge pick. I can only imagine how insulting and demeaning he would be to parties before him. He probably avoided a lot of ethics complaints by being placed safely in some Circuit chambers.

              2. So, in other words, not that the Court itself would be more political, but the process of choosing justices would be?

                It’s not that I disagree that this will be important, but I’m not sure how exactly that would differ from the situation today.

  10. In June Medical I think Roberts was just pissed that a lower court tried to force the Supreme Court to overrule itself based on the political leanings of the court by not properly following precedent. He doesn’t want the Supreme Court to become a political tool.

    1. This is correct. And if it’s going to be a political tool, you have to directly ask. The Fifth Circuit should have upheld the law but say the Supreme Court should re-look at WWH/Casey/Roe. The plaintiffs should have asked the question directly instead of pretending that LA and the Fifth Circuit were somehow correctly applying precedent.

      1. Stare decisis is Latin for “when convenient”.

      2. Agreed.

        The whole premise of the opinion is that the parties assumed precedent controlled and were merely arguimg over whether the fact situations were different. Roberts thought that given the premises, it was very clear the fact situations were similar.

        If you want to overrule precedent, at the very least argue for overruling precedent, have the lower courts uohold it, and then we’ll see. But I think he was proposing not going that route. Instead, find fact situations that genuinely are different and not controlled by existing precedent, and then we can create a body of new precedent based on them.

    2. “He doesn’t want the Supreme Court to become a political tool.”

      He is in fact ensuring that it will be. He has not given cultural conservatives a victory in years, they are going to insist on stricter political vetting.

      1. He is spanking these lower court judges in front of everyone at the grocery store. Next up is the asinine Obamacare case in which Roberts will smack them upside the head in front of all their friends.

        1. Is the Fifth going to be the new Ninth for Roberts?

  11. The W Bush legacy keeps getting better…what a loser. Thank you Republican voters for giving us W Bush and Trump…heck of a job. 😉

    1. You know, when W was president, I thought it could not possibly get any worse. Then Trump was elected, and I find myself nostalgic for W. at least understanding basic governance and being somewhat competent. If the current GOP downward trajectory continues, can’t wait to see who they nominate in 2024.

  12. Roberts’ opinion in June Medical was basically a shot to the 5th. He could have made his concurring opinion much shorted if he had just written, “Don’t pee on my leg and tell me it’s raining.”

    Roberts invited someone to bring a challenge to Planned Parenthood v. Casey. What he didn’t want is a COA (like the 5th) thumbing its nose at SCOTUS by refusing to apply precedent that is directly on point.

    1. He doesn’t seem to have an issue with lower courts thumbing their noses at Heller, now doe she?

      1. Even though I know you’re a troll, I will answer the question.

        Heller was remarkably open-ended, and required lower courts to “fill in the blanks.” Which they are doing. In all sorts of way. Eventually, the Supreme Court is going to have to step in and “harmonize” the decisions.

        In this case, you have a state passing an almost identical law (practically word for word) of the law that was just struck down by the Supreme Court. And the 5th COA basically said, “Yeah, okay, that’s fine by us.”

        And Roberts (who concurred) basically put the smack down and said, “Hey, if you want to challenge PP v. Casey, do it. But don’t pull this weak-ass stuff. It makes the whole system look bad.”

        1. And he probably would overrule Casey if given the chance. Although I think he would try and save conservatives from themselves by saying something to the effect of: “while Roe/Casey is not a correct interpretation of the Constitution, the Fourteenth Amendment’s protection of life and liberty may place some limits on the states’ ability to regulate reproductive rights in appropriate cases.” Basically he’d signal that they better not be here next time with a statute that forces people to have their rapist’s child, do magical ectopic pregnancy “reeimplantion” or just generally force doctors to let women die. And for the love of God don’t show up here with miscarriage prosecutions like we’re El Salvador.

          1. I agree that Roberts wouldn’t let the dumber Republicans ruin it for George P Bush by forcing women to have rape babies.

          2. I think that’s an extremely accurate take on Roberts’ thinking, LawTalking

        2. It wasn’t open ended at all. It laid out what was a fundamental right, and said that the “two step” test the dissent advocated for was not legitimate.

  13. ….and I will add that Roberts, if anything, helped the GOP. As much as they hate to say it, at least they can continue to run on “But but but Abortion!”

    It will be a lot harder for the GOP when they can actually do something, and not blame the courts. That tends to come with a political cost. Not everywhere, but in some places that matter.

    1. I agree. The GOP is a joke.

      The political party that should arise is as follows:

      – no “platform”
      – no policy positions on any issue whatsoever
      – start with only state and local elections
      – no candidates for national office at first
      – the only premise of the party is that state and local governments should decide everything
      – peaceful political disarmament

  14. This analysis is far too reasonable!

    I came here expecting to see Josh Blackman whining about “Blue June”!

    1. Please no! Say his name three times and he shows up to tell you about an OpEd that he wants to write for the Washington Times about how other people are really starting to talk about Blue June.

      Third-tier intellect at a fourth-tier law school.

      1. Blue June (June June June) you upheld standing for docs. Turned back attacks on Roe. Made rulings a righty mocks.

        Blue June (June June June) you did just what you’re there for. You ignored those who said prayers for. And end to Casey and Roe.

        1. Don’t quit your day job.

  15. A state law requiring doctors who perform abortions to have admitting privileges at a nearby hospital is unconstitutional – under the federal U.S. Constitution that is, specifically the 14th amendment.

    LOL. This is both laughable and sad.

    As much as I appreciate all the constitutional scholarship and theory, it’s time to stop pretending that we live in a Constitutional Republic today. There is no Constitution. There is a Constitution, in the sense of a document that exists, and more than that, a document used as a fig leaf for our unrestrained oligarchical state of force. But not by any stretch of the imagination or argumentation do we have a valid, binding written compact that actually governs the federal government. This state of affairs has continued for a long time, and June Medical of course does not alter this state of affairs one iota. But it serves as an occasion.

    All of the States, red and blue alike, should immediately start nullifying any action of the federal government that meets with their disapproval, declaring such actions null and void ab initio. And they should secede if so inclined.

    1. This is pretty shameful and crazy coming from an attorney.

      We have a process. That you have learned about in exhaustive detail.
      It hasn’t come out how you like so you declare the process illegitimate.

      Aren’t you the guy who also wanted to bring back dueling?

      1. M L is an attorney? Or claims to be one?

        You have got to be kidding me.

      2. “Where powers are assumed which have not been delegated a nullification of the act is the rightful remedy: that every state has a natural right, in cases not within the compact to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.”

        Thomas Jefferson

        1. Did you learn to talismanically invoke a single quote from a single Founder as standing for the Constitution in law school?

          Especially a quote that quite clearly does not contemplate the 14th Amendment?

          Jesus.

      3. Sarcastro, If you disagree with the kind of government the founders had a notion to erect, it would be more persuasive for you to give your reasoning rather than the merely call it crazy.

        1. Any attorney that had half a brain would understand this decision.

          They might not agree with it. They might think it was wrong. They might think that somehow the 5th CoA did conjure up a factual difference (the Supreme Court said “No Cars” but that was a green car, and this is a red car!).

          They might think that this was the correct avenue to overturn PP v. Casey, even though it wasn’t briefed.

          Sure, I can see all of that. But no real attorney would start caterwauling that this particular case was the end of the constitutional republic, because that would be Dr. Ed-level crazy stuff.

          Crazy. And stupid. Great combo.

          1. This.

            One of the poses in legal analysis I can’t stand is where lawyers pretend they are shocked by things that are bog standard, like courts following precedents.

            I assure you EVERY honest and intelligent lawyer, no matter how they felt about abortion, knew that one distinct possibility was that the SCOTUS was going to reject the 5th Circuit in June Medical because of stare decisis.

            1. I’m the opposite of socked by this decision. I’m not sure either of you read my comment.

              1. Your rhetoric- that we should stop pretending we live in a constitutional republic- does not fit what happened, which is that the Supreme Court (gasp) followed one of its precedents.

                1. As I mentioned, this June Medical case is practically of no moment at all and did not change this state of affairs one iota.

          2. I see you didn’t read my comment.

            “no real attorney would start caterwauling that this particular case was the end of the constitutional republic”

            Please try reading again.

    2. Not only is that theory partially responsible for the civil war, it has repudiated numerous times by the courts. You can’t secede. You don’t get to nullify the federal government.

      The 14th amendment was designed to impair state supremacy over their constituents. Now your complaining that it does?

      I’m not saying Roe is right or that this case is right … I think that from the day it was decided Roe is bad law. But it is precedent for now. So it applies.

      The constitution binds the states as well. That is the whole point of the 14th amendment.

      1. I appreciate your comment, but no, the “whole point of the 14th amendment” was not that the Constitution binds the states as well. That was true from the start of the Constitution. The supremacy clause was there from the start as well.

        I think there can be a reasonable debate about whether the Constitution should be considered valid and of any force or effect.

        If you materially breach a contract, are you then entitled to force the counterparty to live by its terms? No, of course not. The same principle applies to a constitution. Admittedly, the materiality threshold for legitimacy of a Constitution is a matter of highly theoretical debate. But the contention I would advance is that one must acknowledge the limiting principle must exist somewhere.

        Of course, just because you disagree with someone else’s interpretation of the Constitution does not mean that they are wrong, and it surely does not mean that you have cause to declare the entire compact void. But is there any point at which such a cause would exist?

        Perhaps it’s all subjective. No interpretation of the Constitution can be said to be objectively wrong, and the Constitution could literally mean anything. I think this may be true. But it proves my point that there is no “binding written compact that actually governs the federal government.” In this case, a written Constitution is just an expression of subjective, collective political will that ultimately imposes no objectively definable restraint on government and is subject to endless reinterpretation. If this is the case, then in my opinion it would be all the more important to restructure government so that power is decentralized, since this would be the only way to have any semblance of representative self-government.

        1. “The Constitution is not a contract!” were the first words my ConLaw professor told us. After he read the Gettysburg Address.
          He also told us about how wrong did not mean illegitimate. That’s where precedent and Stare came in.

          Our system is freaking amazing. Not perfect, but an amazing integration of systems and history. And you studied it’s edifice in all of it’s complications and fits and starts and glory. You did this by choice.

          And now you come out with this sophomoric pablum as though you’ve learned zero things about how the system works.

          You hate modern America. And so you pretend the issue is that the Real Constitution is in Exile.
          It’s as dumb as looking for the gold fringe on the flag in the Court. You’re not even tilting at windmills. You’re not lighting candles; you’re cursing the darkness.

          I wonder how you function. But then I remember it’s the Internet; no way you’re this much of an bitter zealot in real life.

          1. It’s interesting how much vitriol a little bit of unorthodox thinking gets you. I don’t hate America and I’m not bitter at all. I do think that the federal government worthy of scorn, in general. Just going by the polls some 80% of Americans tend to agree with me to some extent. It’s very easy for me to see that increasingly centralized, consolidated government power over all affairs leads to general dissatisfaction among everyone because it is not representative, it’s not self-government. Nobody wins really, except in the tribalistic way of rooting for your sports team. For select interests this is all a feature and not a bug.

            Look up the polling on whether the country is on the right or wrong track. I mean, there’s something wrong, don’t ya think? Far be it from me to say that all we need to fix this world is to get just the right government structure. But it’s even dumber to say that we just need “our side” to win. Solzhenitsyn was correct when he said, “The line separating good and evil passes not through states, nor between classes, nor between political parties either — but right through every human heart.”

            1. Amazing how angry people get when you declare modern America to be illegitimate on accounta not aligning with your out-their worldview.

              Similarly, Sarah Palin was a genius that Dems feared.

              And then you appeal to polling? Why would you care about polling; no one agrees with your idea of abolishing the administrative state and lowering government spending to it’s 1859 level.

              1. At least you are admitting that you are the angry one here, not me.

                1. Yeah, I’m angry that someone is calling the system our country runs on illegitimate. I love America, warts and all, and I take your declaring the republic over and yearning for a new Confederacy as a bit of an insult.
                  Moreso that you’re not some driveby but someone who learned about it and yet rejects it.

  16. I didn’t pick up on this point in reading the opinion. Do people agree with Lithwick that Roberts has pulled a fast one?

    cloak a major blow to the left in what appears to be a small victory for it […] a careful balancing [standard] of the stated benefits of an abortion restriction against its burdens [has been] claw[ed] back [to] a much more deferential one that asks only whether the proposed regulation is unduly burdensome without requiring any consideration of the benefit.

    1. I think it renders his talk about the importance of stare decisis hollow when he rejects the reasoning of the opinion he is allegedly following.

      But it seems to me that Lithwick has it backwards–the Roberts interpretation of Casey is stronger than the plurality’s. According to Roberts, “[i]n this case, Casey’s requirement of finding a substantial obstacle before invalidating an abortion regulation is therefore a sufficient basis for the decision, as it was in Whole Woman’s Health. In neither case, nor in Casey itself, was there call for consideration of a regulation’s benefits, and nothing in Casey commands such consideration.” For Roberts, the benefits don’t matter, only the burdens. That seems less deferential, not more.

      1. I’m pretty sure Roberts is arguing that a substantial obstacle is a necessary and sufficient basis for invalidating an abortion regulation. In contrast, the plurality argues a substantial obstacle is sufficient, but not necessary. See more here.

        1. I don’t think that’s right. The plurality seems to argue that a substantial burden is a necessary, but not sufficient, requirement. “These include its determination that Louisiana’s law poses a “substantial obstacle” to women seeking an abortion; its determination that the law offers no significant health-related benefits; and its determination that the law consequently imposes an “undue burden” on a woman’s constitutional right to choose to have an abortion. We also agree with its ultimate legal conclusion that, in light of these findings and our precedents, Act 620 violates the Constitution.” This suggests that if the health benefits were enough, even regulations imposing substantial obstacles could be upheld.

          Perhaps the Roberts position makes it easier to uphold minor regulations, but it seems like it makes it easier to strike down any major ones.

          1. Perhaps the plurality opinion can be read to permit a regulation that places a substantial obstacle to an abortion (which Roberts would thus not permit) when the state has a really good reason for doing so. Can you give an example of such a regulation you think would garner the votes of the four liberals?

            I guess you think a regulation that does not place a substantial obstacle (categorically permitted by Roberts, subject to a balancing test by the plurality) is a minor regulation? How about a one-week waiting period with a required ultrasound?

            1. “I guess you think a regulation that does not place a substantial obstacle (categorically permitted by Roberts, subject to a balancing test by the plurality) is a minor regulation?”

              I certainly might have missed it, but I don’t see anything in the plurality opinion that says its balancing test applies to laws that do not impose a substantial obstacle to abortion. As I said, the plurality seems to argue that a substantial obstacle is a necessary, but not sufficient, requirement.

              And what, exactly, in the Roberts concurrence suggests that he’s pulling a fast one or that he would accept different pretextual justifications?

              1. As I understand your argument, you are saying the plurality will strike down an abortion regulation only when it 1) imposes a substantial obstacle to obtaining an abortion and 2) does not have benefits which justify imposing a substantial obstacle. And, you further argue that Roberts applies on the former, and thus less deferential criterion.

                Does it strike you as rather odd that Roberts refused to join the plurality because he felt they didn’t go far enough in protecting abortion rights? And does it strike you as odd that Roberts would do that while detailing that each of the regulations upheld in Casey was done so solely on the basis it did not constitute a substantial obstacle without reference to balancing benefits, as if Roberts was worried the plurality’s standard might strike them down?

              2. From Whole Woman’s Health

                a state law is constitutional if: (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to (or designed to further) a legitimate state interest. […] The Court of Appeals’ articulation of the relevant standard is incorrect. The first part of the Court of Appeals’ test may be read to imply that a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden. The rule announced in Casey, however, requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.

                The Court of Appeals’ standard is Robert’s standard. But, you insist the Supreme Court applied a more deferential standard. Does it make any sense that while reversing the Court of Appeals, the Supreme Court admonished it for applying an insufficiently deferential standard? Not to me.

                Casey established the standard articulated by the Court of Appeals and Roberts. Whole Woman’s Health strengthened that standard. The “fast one” Roberts may have pulled was to revert to the Casey standard.

  17. The left has to have something on Roberts. Between these results and “the court is not well” threat amicus filed earlier in the year, they know what they are doing.

    1. When reality is too hard.

  18. If Justice Breyer’s opinion says more than…

    Thanks for yet another opportunity, but we’re still not ready to overturn Roe v Wade, et al. The judgement of the Fifth Circuit is reversed.

    …it says much more than it needs to.

    1. That should read…

      If Justice Breyer’s opinion in June Medical Services says more than…

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