The Ten Phases of Blue June

Phase 1 began with South Bay v. Newsom on May 29. Now, we go into Phase 10: Overtime.

|The Volokh Conspiracy |

Blue June has finally drawn to a close. It was a month unlike any other in recent memory. Now, with some distance (about 24 hours), we can begin to take stock of what happened. Later this summer, I will publish an essay in the University of Chicago Law Review Online, titled–fittingly–Blue June. For now, here is a compendium of my 43-posts published during this surreal period. I propose dividing Blue June into ten phases.

 

Phase 1: South Bay (May 29-May 30)

To be precise, Blue June officially began in May. Late in the evening on Friday, May 29, the Court decided South Bay United Pentecostal Church v. Newsom. That case was our first indication that something was up with Chief Justice Roberts. I wrote two posts in the immediate aftermath of this important entry on the shadow docket.

  1. Are houses of worship "comparable" to secular businesses like grocery stores, banks, and laundromats? Chief Justice Roberts said no. Justice Kavanaugh said yes.
  2. Did Chief Justice Roberts signal his Harry Blackmun moment?. Chief Justice Roberts, still haunted by the ghost of Lochner, may be trending towards Garcia v. San Antonio Metropolitan Transit Authority

Phase 2:  A Slow Start (May 31-June 14)

The first two weeks of June were fairly uneventful. The Court decided six cases. The only significant decision was Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC (the PROMESA case). June seemed quite sluggish. I even ventured some predictions on who would write the remaining majority opinions.

  1. Justice Kavanaugh Uses the Term "Noncitizen" as Equivalent to the Statutory Term "Alien." He included the same nomenclature in Barton v. Barr and Nasrallah v. Barr .
  2. More on Corona and the Constitution. I spoke with ReasonTV and the Little Rock Federalist Society Chapter. I am happy to speak to other groups as well!
  3. Mooting Corona Cases Before They Reach the Supreme Court. Blue states played "keep-away" with Free Exercise and Second Amendment cases on the shadow docket.
  4. Another Way to Think About South Bay: Why Allow Protest, But Not Prayer?

    Mayors and Governors admit they think prayer simply isn't as important.

  5. Who will write the remaining major Supreme Court decisions? My prediction: Roberts for Title VII, Roberts for DACA, and Roberts for Espinoza, and Roberts for Tax Return Cases

  6. The PROMESA Board Members Are Not "Officers of the United States." So What Are They? Article IV territorial officers hold "Office[s] under the Authority of the United States," and are bound by the Sinecure Clause.

 

Phase 3: Blue Monday (June 15)

But on Monday, June 15, our world was turned upside down. Blue Monday. At the time, I wrote:

In the span of 30 minutes, the Justices handed conservatives four defeats.

  1. The Court denied review in ten Second Amendment cases; Justices Thomas and Kavanaugh dissented.
  2. The Court denied review in President Trump's challenge of California's sanctuary state laws; Justices Thomas and Alito dissented.
  3. The Court GVR'd a Texas death penalty case; Justices Thomas, Alito, and Gorsuch dissented.
  4. The Court decided Bostock; Justices Thomas, Alito, and Kavanaugh dissented.

I pumped out eight posts over the course of two days, reacting to the events.

  1. Why did the Court GVR Andrus v. Texas, rather than grant cert? The per curiam majority and the dissent disagreed on many facts that would have benefited from argument.
  2. Why did the Supreme Court deny certiorari in the California Sanctuary City Case after 13 Relists? Justices Thomas and Alito would have granted certiorari. Justices Gorsuch and Kavanaugh, apparently, would not.
  3. The Court Calls for the Views of the Solicitor General in Texas v. California, An Original Jurisdiction Case. Texas challenges California's Interstate "Travel Ban."
  4. SCOTUS grants a "Motion for reconsideration of order denying leave to proceed in forma pauperis filed by petitioner": The IFP motion cited Magna Carta. And the Court grants the motion on June 15.
  5. SCOTUS Splits 7-2 Over Federal Easement Law: Justices Thomas and Sotomayor disagree about how federal law construes a "right of way."
  6. Twelve Years After Heller: The Supreme Court will continue to ignore the Second Amendment until it receives a petition it has to grant.
  7. Senator Hawley: Bostock "represents the end of the conservative legal movement.": "If we've been fighting for originalism and textualism and this is the result of that, then I have to say it turns out we haven't been fighting for very much"
  8. June 15, 2020: Blue Monday at the Supreme Court. Conservatives went 0-4.
  9. Many Republicans quietly breathed a sigh of relief after Bostock was decided. Hawley is right: Congress is "terrified about being held accountable for anything on any subject"
  10. My new approach to SCOTUS Decisions: read (and edit) first, then comment: No more hot takes.

 

Phase 4: The Fallout from Blue Monday (June 16-17)

Tuesday June 16 and Wednesday, June 17 were intermediary days. The sting from Blue Monday was fading, but the rest of the docket loomed. What would it bring?

  1. Anonymous Reactions to Bostock: Right-of-center lawyers send me their to thoughts on Bostock, Blue Monday, and the Conservative Legal Movement
  2. Judge Easterbrook admits what was implicit in Chief Justice Robert's South Bay Decision: "Feeding the body requires teams of people to work together in physical spaces, but churches can feed the spirit in other ways."

 

Phase 5: Blue Week (June 18-June 22)

On Thursday, June 18, Blue Monday turned into Blue Week. Chief Justice Roberts wrote the majority opinion in the DACA case. At that point, it became painfully clear that this term would be different.

  1. Understanding Chief Justice Roberts's DACA Decision. CJ Roberts rejects the A&C analysis of the 2nd, 9th, and D.C. Circuits, and tentatively embraces the 5th Circuit's analysis about DACA's benefits
  2. Blue Monday turns into Blue Week, and likely Blue June: Conservatives are 0-5 this week. A new #SCOTUS short list will not help.
  3. Why the DACA Rescission Failed CJ Robert's APA "Severability" Analysis: The DHS Secretary erred because she rescinded the entire DACA policy, rather than just the parts CJ Roberts suggested might be unlawful.
  4. The Equal Protection Issues in the DACA Case: Eight justices found no equal protection violation, but there was no majority opinion on why.
  5. DOJ Should Not Let Chief Justice Roberts Decide Anything Concerning the SDNY U.S. Attorney: Generally DOJ is eager to appeal anything, and everything to the Supreme Court. Not during Blue June.
  6. Where did CJ Roberts's Anti-Saving Construction in the DACA Case Come From?: It was hinted at in the D.C. Respondent's brief, but the Chief's "severability" analysis was a John Roberts blue plate special.
  7. The Unresolved Separation of Powers Questions in the DACA case: Justice Thomas's echoes Cato's brief about the Non-Delegation Doctrine, the Major Question Doctrine, an "Adverse Possession" theory of Executive Power, and the Take Care Clause.
  8. Justice Thomas concludes that the "freedom of speech" is a Privilege or Immunity under the 14th Amendment: Justice Thomas again rejects substantive due process incorporation.

 

Phase 6: That's it? (June 22-June 25)

On Monday, June 22, the Court teased us with a single decision: Liu v. SEC. And on June 25, the Court released only one case: DHS v. Thuraissigiam. But these assignments helped us narrow down, by process of elimination, who would author the outstanding decisions.

  1. Justice Sotomayor writes majority opinion in Liu, and my predictions for Blue June are still on track: Four cases are pending from the pre-Covid arguments, 10 cases are pending from the May siting.
  2. "Roberts has also been in the court's majority more than any other justice, at 98 percent of the time.": From SCOTUSBlog's Interim Stat Pack.
  3. Why didn't the Trump Administration rescind DACA in a proper fashion?: Making the correct legal argument would have cast doubt on other elements of immigration law, and the acting DHS Secretary refused to say that DACA was a bad policy
  4. Justice Alito wrote Thuraissigiam; Chief Justice Roberts and/or Justice Breyer will wrap up Blue June: June Medical, Espinoza, and Seila Law remain from the pre-COVID cases
  5. Where does DHS v. Thuraissigiam stand?: The Court's first major Suspension Clause case since Boumediene.
  6. Originalism and the Suspension Clause in DHS v. Thuraissigiam: The majority and dissent vigorously disagree about the role history should play in this Suspension Clause case.

 

Phase 7: Awaiting the End of Term (June 26-June 28)

Over this weekend, we all waited on pins and needles. How would the Supreme Court decide the three remaining cases: June MedicalSeila Law, and Espinoza? I predicted that all three would go left. I got 1/3 right.

  1. New on NRO: "Justice Gorsuch's Half-Way Textualism Surprises and Disappoints in the Title VII Cases": Randy Barnett and I explain where Justice Gorsuch went wrong in Bostock
  2. Justice Brennan rejected the "literal" meaning of Title VII in United Steel Workers v. Weber: This landmark Title VII case relied on the "familiar rule" from Church of the Holy Trinity v. United States.

 

Phase 8: Blue June Glooms On (June 29)

On Monday, June 29, the Court decided Seila Law and June Medical. Roberts wrote both majority decisions. In both cases, he distorted precedent in the name of following precedent as part of his quixotic "long game." The June Gloom continued. But the next day would bring a ray of hope.

  1. Blue June Glooms On: The Chief feints left on abortion, tiptoes to the right on the CFPB, and Thomas is still waiting for Godot
  2. The Chief Justices Battle over the Removal Power: Roberts and Kagan present two very different conceptions of the separation of powers.

 

Phase 9: Rosy End to Blue June (June 30-July 1)

The Chief gave conservatives a rosy parting gift to end Blue June. Espinoza! All the sudden, things didn't look so bad. Plus, with the Chief's rose-tinted glasses, the writing on the wall become clear for Whole Woman's Health.

  1. A Rosy End to Blue June: Is Espinoza enough to make conservatives look past the Chief's never-ending chess match?
  2. The Roberts Court Slowly Inters Justice Kennedy's Ephemeral "Jurisprudence of Doubt": Blue June buries Boumediene, Whole Woman's Health, and Trinity Lutheran Footnote 3
  3. Justice Kagan on Hamilton in Federalist No. 77: Hamilton said that Senate must consent when a new President "displaces," that is substitutes an old officer with a new officer.
  4. Chief Justice Roberts Rewrote Morrison v. Olson: Roberts's fidelity to stare decisis does not include following precedents as written. And we all know it.
  5. Stare Decisis is an Old Latin Phrase that Means "Let the Decisions of the Warren Court Stand": Halfway Stare Decisis, like Halfway Textualism, Allows the Court to be Ruled by the Dead Hand of William Brennan.

Phase 10: Overtime (July 2—Who knows?)

The term that never ends will now go into overtime. Who knows when it will end?

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  1. Is “Blue June” a reference to how sad Josh is? Im starting to think these posts are a cry for help.

    We’re all here for you if you want to talk about. Together, we can beat this depression you’re experiencing. 🙂

    1. He’s got to have something else to occupy his time. If I was the Old Testament God, this is the point at which I would take him up in a whirlwind and deposit him in a wilderness where he would subsist on wild locusts and honey, be befriended by hunter-gatherers, learn their preliterate culture, be betrothed to the chief’s daughter, lead the people through a famine in which many loved ones died, become proficient in pottery making, and fight with and then make peace with the neighboring culture so that they can share the hunting grounds. The wildest sabbatical ever.

    2. I think the next step is for Josh to put it to music, for a Twelve Days of Christmas-kinda thing…

      1. I tried to use the song “Blue Moon” for it. Didn’t work that well.

        1. Blue June,
          You saw me standing alone,
          Without a dream in my heart,
          Without 5-4 majority of my own

  2. I have to admit, I was beginning to wonder about all the bogus BS being slung around by the Keyboard Kommandos regarding the deleterious effects of quarantine.

    But now I understand. Josh Blackman has engaged in a serious and lengthy effort to show us exactly how this national Trump-inspired tragedy eats away at the mental faculties of people.

    And today, he has delivered the coup de grace! In one rambling post, he has shown the chronology of his mental deterioration. “Blue June” was always a cry for help.

    “Who knows when it will end?” Oh, Josh.

    1. You come across as deranged by Trump as you claim Josh is. TDS works both ways. Trump supporters think the miracle of beating Hillary makes him a saint who can do no wrong; Trump haters refuse to admit *why* Hillary lost, blame it on the Russians, and will not admit that Trump has done anything right.

      1. It’s so cute! I love the evolving position!

        Now it’s …. “TDS works both ways.” It’s like the person who finally says, “Hey, maybe I’ll stop sending the Nigerian Prince money, but I’m sure that he’ll still come through.”

        Progress? Or dementia?

        You be the judge!

        1. Now?!? TDS has always worked both ways. You are either really deluded if you think this is a new concept; or really naive and encapsulated in your anti-Trump bubble if you have never heard of it before.

          1. So cute again- it’s always other people that are deluded and in a bubble.

            You, of course, you are the smart one! You see it as it is! You and your gimlet eye, seeing how both Trump AND Clinton were equally bad, and doing the right thing. Just you being you.

            Man, you’re awesome. I wish I could be just like you!

          2. Loki isn’t the one posting 40 post sagas just because his side lost a couple of SCOTUS cases.

      2. We “Trump Haters” tend to blame Comey more than the Russians, but with razor thin margins in a handful of states many factors can separately be seen as decisive. Certainly the Russkies did everything possible for their boy : Witness the DNC emails hacked from John Podesta by Russian Intelligence. They sat on’em for months, only to release the first batch one hour after the Access Hollywood story broke & rocked the Trump campaign. Understandable : Their guy was in trouble and needed help.

        And the good Trump has done? Evidence is pretty thin on the ground.

        1. “And the good Trump has done? Evidence is pretty thin on the ground.”

          Because his main interests are:
          1. Lining his pockets, and those of his cronies and associates;
          2. Getting people to praise him;
          3. Getting the media to cover him; and
          4. Watching TV and golfing …

          that means that that actual amount of damage he has inflicted is not that bad, and mostly long-term (such as foreign relations). Heck, most of the severe crises (such as North Korea) were entirely self-created, which also allowed him to “end them” by going back to the status quo, with nothing more than egg on his face for showing the world that he’s an easy mark.

          But for the pandemic, we would have been pretty lucky, with just four years of decline and the usual suspects saying, “Hey, Hillary would probably have not only let Russia kill our Troops, she probably would have eaten them. #Buthillary #clintoncannibal”

    2. Just wait until the Supreme Court cuts down that ridiculous ACA suit that Josh has taken exhaustive measures to claim is not actually ridiculous. Especially if it’s an opinion on why there is no standing by Alito.

      1. If that were to happen, that would be Prof. Blackman’s “et tu Brute” moment.

        1. It will probably be by Roberts again, but Alito has written a lot of the recent and restrictive standing precedent so it is not beyond the realm of possibility that he ends up writing the opinion. And if it is a pretty lopsided vote for reversal on standing grounds, I can totally see Roberts assigning it to Alito just to emphasize how ridiculous the Fifth Circuit and Reed O’Connor were being.

          1. You know, I would think that. Because it should be the biggest slamdunk ever.

  3. Did you genuinely believe Republicans were going to reverse the tide of the culture war? That bigotry and backwardness would begin to prevail in America after a half-century or more of liberal-libertarian mainstream progress shaped against the wishes and efforts of conservatives?

    That reason, science, modernity, inclusiveness, education, and progress were going to be overtaken by superstition, dogma, intolerance, insularity, ignorance, and backwardness in today’s (or tomorrow’s) America?

    Did you ignore everything at Georgetown (except, perhaps, Prof. Barnett’s right-wing fever dreams)?

    1. Did you genuinely believe Republicans were going to reverse the tide of the culture war?

      You go too far, as usual, but this is definitely the operative question about the Gorsuch opinion in the Title VII cases.

      A rounding error of the American population thinks it should be legal to fire people because they are gay, and not much more than that think it should be legal to fire people because they are trans.

      Yet lots of conservative commentators- INCLUDING many people who actually agree that you shouldn’t fire people because they are gay or trans- think this was some Waterloo battle that cultural conservatives just lost. I not only refer to Prof. Blackman, but also to people such as Ross Douthat and others.

      There are clearly some issues where cultural conservativism has more social purchase. Abortion, for instance, much as I hate to admit it, is one example. Lots of people oppose abortion, or at least think it should be more restricted than it is now.

      But on gay rights- take the L, guys. The sooner you folks understand that arguing that employers should be able to legally fire gay employees is a political loser, the better. The public thinks that homophobia is nuts at this point.

      This wasn’t always true- when I was young, an initiative that would have required gay teachers be fired failed in California, but it did get lots of votes. And until recently, opposing gay marriage was a political shibboleth even for Democrats. But it changed, and you guys lost, and you need to take the L on it and move on.

  4. Justice Gorsuch strikes back at CJ and Judge Easterbrook:

    “The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly. At the time of the First Amendment’s adoption, the word “exercise” meant (much as it means today) some “[l]abour of the body,” a “[u]se,” as in the “actual application of any thing,” or a “[p]ractice,” as in some “outward performance.” 1 S. Johnson, A Dictionary of the English Language (4th ed. 1773); see also ibid. (5th ed. 1784). By speaking of a right to “free exercise,” rather than a right “of conscience,” an alternative the framers considered and rejected, our Constitution “extended the broader freedom of action to all believers.” McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1490 (1989).”

    Justice Gorsuch, concurring, Espinoza v. Montana Dept. of Revenue, Slip Op. at 3-4 (June 30, 2020)

    1. The Congregation Of Exalted Reason is ready to benefit from Justice Gorsuch’s position.

      I doubt clingers will like the Congregation’s list of reason-based sacraments, though.

  5. Oh Josh-poo. Everything will be alright. *tap tap*

  6. The 11th phase. Josh writes a NYT op-ed explaining how Blue June happened 😉

    1. I’m pretty sure you mean …. Washington Times.

  7. Justice Roberts has been in the majority a great deal of the time. Why, because when the Chief Justice is in the major he can assign who writes the majority opinion. This gives him a tremendous amount of power. We have seen that Justice Roberts is not afraid to use that power. I predict that people will be talking about the Robert’s Court for many years and scholars will be analyzing it for the same reasons.

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