Supreme Court

A Quite Unusual 5-4 Split on the Supreme Court

Three opinions, no blockbusters, but an odd (and unprecedented?) 5-4 split - and interesting order on Congressional subpoenas.


The Supreme Court issued three opinions in argued cases today, punting (correctly) in one of the biggest cases of the term.

The most interesting decision came in Georgia v., in which the Court rejected the state of Georgia's attempt to assert copyright in the Official Code of Georgia Annotated. I'll leave to others whether the opinion properly concluded that the Georgia Code Revision Commission is, in fact, an arm of the state legislature, and whether the majority correctly applied the relevant conceptions of authorship to this dispute. What I find most interesting is the line-up in this 5-4 decision.

Chief Justice Roberts wrote the majority, joined by the Court's four most junior justices: Sotomayor, Kagan, Gorsuch and Kavanaugh. Justice Thomas dissented, joined by Justice Alito and (in part) Justice Breyer. Justice Ginsburg dissented separately, also joined by Breyer. This is a 5-4 split one does not see every day. Indeed, I cannot think of another case dividing the Court in this way (even if one were to substitute Kennedy for Kavanaugh and/or Scalia for Gorsuch). Just another reminder that not all 5-4 cases can be understood in political or ideological terms.

The Court resolved an important Affordable Care Act case in Maine Community Health Options v. United States. Writing for eight justices, Justice Sotomayor held that health insurers were entitled to risk corridor payments under the ACA, despite Congress's failure to appropriate funds to fulfill the legal obligation. Among other things, this opinion stresses the norm against recognizing implied repeals of legislation. Justice Alito wrote the lone dissent.

Many were anticipating a big Second Amendment ruling in New York State Rifle & Pistol Association v. New York, but it was not to be. The New York legislature revised the laws in question while the litigation was pending, rendering moot the precise question before the Court. Accordingly, in a brief Per Curiam opinion the Court sent the case back down to the lower court for consideration of the relevant Second Amendment claims against the rules currently in force. Justice Kavanaugh wrote a brief concurrence. Justice Alito, joined by Justices Gorsuch and Thomas, dissented.

For what it's worth, I think the Court got this one right: The case as argued is moot. At the same time, the dissenters are correct that additional guidance to lower courts (and states) on the permissibility of gun restrictions is long overdue. In this regard, I think Justice Kavanaugh's concurrence got things right: "petitioners' claim for injunctive relief against New York City's old rule is moot and that petitioners' new claims should be addressed as appropriate in the first instance by the Court of Appeals and the District Court on remand." In addition, there is ample cause for concern that "some federal and state courts may not be properly applying Heller and McDonald." Accordingly, Kavanaugh wrote: "The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court."

The Court also released orders today. While it did not grant any new cases for argument, it did something interesting in Trump v. Mazars and Trump v. Deutsche Bank:

The parties and the Solicitor General are directed to file supplemental letter briefs addressing whether the political question doctrine or related justiciability principles bear on the Court's adjudication of these cases. The briefs, not to exceed 15 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, May 8, 2020.

What does this mean? One possibility is that one or more justices see the political question doctrine as a potentially attractive way to resolve the cases without having to decide on the precise limits of legislative authority to demand the disclosure of documents. Note that while this resolution might look like a "punt," it would almost certainly be a loss for Donald Trump. If the Court were to conclude that these two cases present a nonjusticiable political question, this would mean Trump's efforts to quash the congressional subpoenas necessarily fails, and it's hard to imagine private firms refusing to comply in such circumstances. On the other hand, such a resolution could strengthen the Trump Administration's hand in cases demanding documents from the White House.

While this is one possibility, it's important not to read too much into this supplemental briefing request. It's equally possible that some justices want to make sure they've covered all of their bases, and have thought about the implications of any ruling here for other doctrines (and, potentially, for other cases in the pipeline). Just because the Court asked for supplemental briefing on this question does not mean this issue will be central in the resulting opinion(s).  As always, time will tell.

NEXT: Today in Supreme Court History: April 27, 1822

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  1. Justice Alito, joined by Justices Gorsuch and Thomas

    3 conservatives OK with an advisory opinion so long as it addresses their equities.

    1. What does shameful is the second class way in which the second amendment has been treated by the lower courts

        1. And therefore who cares about legal precepts. Perceived persecution justifies the means.

          1. Legal precepts like “shall not be infringed” are meaningless to you and your kind.

            1. Nice. Screw the rules, because you know what the Constitution truly wants.

              ‘My kind.’ I’m all for the Second Amendment – I think there is an individual right to self defense. So maybe stuff your accusations of into your hat.

              1. At this blog, anything short of gun absolutism tends to be assigned to ‘gun grabber’ and ‘commie’ territory.

                1. Go fuck yourself, slaver.

      1. Okay. But that’s no reason to disregard what is clearly moot. Kavanaugh is right about that.

        1. ? Kav doesn’t seem to say that.
          He says he agrees the case is moot, and also agrees that Heller may be misapplied by lower courts.

          1. Eh. I’ll let that slide because it’s a lot like a statement concurring in denying cert that all the justices do from time to time. Sotomayor also flags issues for future review. It’s far superior than Alito submitting a failing fed courts/con law final exam for everyone to read. (Can’t wait til he submits his opinion saying there is standing in the ACA mandate from the Fifth Circuit, where he will fail both classes again by showing he didn’t read his own prior opinions on the subject.)

        2. Roe v Wade was clearly moot when it was decided as well…

          That didn’t prevent a landmark decision from being made.

          1. Roe was capable of repetition, but evading review.

            This case, if it repeats, will not evade review.

            1. I love the shift in tense there.

              Roe “was capable” of repetition, so it needed to be decided. Not “if it repeats.” But “was capable”.

              But this case….”if it repeats”. Not if it “was capable” of repetition. “If it repeats”. So it’s moot.

              1. This case is still a going concern, Roe no longer is. My tense are pretty normal, dude. I don’t know what you’re reading in, but it’s nothing I put in there.

                FFS, an unwanted pregnancy ends too quickly in the judicial timescale and always going to evade review.

                A law does not have this problem.

                Jesus, do some light googling on the issue before you spout off and accuse me of bad faith.

                1. Seems to me that NY is, demonstrably, capable of moving fast enough that a law CAN have this problem if they mean for it to.

                  1. There are no examples of this kind of two-step being repeated long. Any thoughts about why that is?

                2. As Brett points out, the law is quite capable of moving fast enough. And did in this particular situation. I enjoy how New York defended the law through 2 sets of appeals, right up until the SCOTUS decided to give it a hearing…then suddenly the law changed.

                  I also enjoy the shift in phrasing. It’s not enough for the law “to be capable” of repetition. It need to actually happen. Whereas Roe didn’t actually have to happen…

                  1. There needs to be an affirmative act. With pregnancy that’s not the case.

                    Sorry – this does not fit the definition.

                    Think functionally – if the legislature tries to pass a similar law, do you think the court system will look kindly at being used as a patsy?

                    Wait for demonstrated bad faith before you start making BS policies based on your speculated future bad faith.

        3. But its not moot. There still were issues.

          And even if it WAS moot, it was only mooted to avoid a decision. That should never be allowed.

          It was a bad case the court got wrong.

          1. Oh, there are always issues.

            But there is no case here. The Constitution requires there be a case or controversy.

      2. Kevin, I’ve noticed a sense of entitlement among Second Amendment absolutists, such that they feel the Second Amendment is being treated in a second class way if it isn’t given special privileges afforded to no other amendment.

        If you want an example, there’s been no comparable claim that free speech and assembly rights under the First Amendment can’t be temporarily constrained while there’s a pandemic in progress. Everyone (well, almost everyone) understands that eradicating the pandemic is more important than people temporarily not being able to gather in large crowds in public parks. You can’t close a church altogether but even that can have restrictions put on it. Why? Because normal people understand that in time of crisis, sometimes people don’t have all the rights they do when it’s not a time of crisis.

        But try explaining that to a Second Amendment absolutist.

        So while you see the Second Amendment under attack, I see a bunch of privileged, whiny, entitled spoiled brats who think everything is about them.

        1. If it weren’t being treated in a second hand way, it would have been NYC appealing the Pistol Club’s victories. The plaintiffs were being told they could not legally transport their lawful property outside the city; For what property that DIDN’T specifically implicate a constitutional right would that pass scrutiny? Stereos? Chess sets? Lawn mowers? This law was, so far as I know, utterly lacking in any precedent!

          And now the replacement law says, sure, they can transport it, but if at any time they leave the car along the way, to piss or get gas or a meal, they’re legally liable. Even truckers hauling nuclear waste get to stop for gas!

          And on top of that the law was directly in defiance of an on point federal law, which the court refused to apply. The Gun Club should have won based on 18 U.S. Code § 926A even without the 2nd amendment!

          Imagine instead of guns, it was books. Or crucifixes. Now imagine how fast and thorough the slapdown would have been. That’s how it would have gone down if the 2nd amendment weren’t being treated like, not just a 2nd class right, but a kind of anti-right.

          Heck, just the fact that the city presumes to license ownership of property you have a constitutional right to own, and THIS is tolerated, is enough to establish the 2nd class status of 2nd amendment rights. Imagine for a second having to get a license to own a book, or a printing press.

          1. Well imagine a book or printing press killing multiple people within seconds and you might see the problem.

              1. Isn’t that what the entire legal, policy, and moral debate comes down to?

                1. Ideas, like Communism, and political Islam, are ultimately more deadly than a gun.

                  1. I’ll give you a copy of the Communist Manifesto and the Quarn. I’ll have a gun. Lets see which one of us kills more people in an hour.

                    Actually. How about this: I’ll give you a century to convince people to follow the “evil” doctrine of your choosing, with one catch: neither you nor your adherents can use guns or explosives to enforce their will. Once they agree to your ideology they cannot obtain a firearm. Meanwhile, I will give any type of arm to anyone I choose to for the same amount of time: serial killers, armies, governments, police, ideologues, terrorists, random people, toddlers etc. without any limitation whatsoever. Let’s see who ends up responsible for more deaths.

                    Lol at “political Islam.” Whatever point you think you’re making with that, it doesn’t reflect well on you at all. You’re going to come out of that conversation as either a bigot, a hypocrite, or culturally, religiously, and historically ignorant. But probably all of the above.

                    1. Religious books have killed more people than you could in a lifetime of unrestricted gun mayhem.

                    2. The books themselves did? Or the people who read them and decided those ideas meant they should grab a weapon, including guns, and use them? Would any fanatical religious movement be able to kill lots of people without weapons of any type? Would they be more efficient at killing with guns?

                    3. “Would any fanatical religious movement be able to kill lots of people without weapons of any type?”

                      Yes. Yes they would. Nazis didn’t use “guns” for most of their holocaust victims.

                    4. Armchair,

                      First, read Christopher Browning’s Ordinary Men, or really any Holocaust history. It started with mass shootings.

                      Second, do you think the Nazis got people into the ghettos, onto trains, into the backs of gas vans, and into the extermination camps without guns?

                    5. I’m thinking of the Monguls.

                      Not a lot of ideas in them. Lots of weapons, though. They managed to get things done.

                      Ideas also work (Kant, Ghandi, etc) but force ain’t nothing.

                  2. I mean, I like the rhetoric, but those regimes were both pretty into guns.

                    1. Meh. People don’t realize that power of ideas…more powerful than any gun. Millions died from idea long before guns were invented, and try as you might, you can’t pass a law to uninvent shit.

                    2. Guns make extreme force easy to use. Sometimes motivated by an ideology, sometimes not.
                      If you think force gets deaths done (and you’d be crazy not to), you think guns do the same.

                      Ideas can be deadly as well, but for an idea to kill you need force. For force to kill you don’t need an idea.

                2. The legal debate was settled with the Second Amendment.

            1. Oh suddenly its not “its being treated as a second class right” but “it should be because KILLING”

              Nice goal post moving.

              1. I didn’t set a goal post to move. I just pointed out the problem. The function of guns is always going to lead to a conflict between legality, policy, and morality in a way books and printing presses cannot. Just like there is actually a difference between good and bad things despite the wisdom of @dril, there is a difference between guns and books. Pretending there isn’t is asking humans, which judges happen to be, to ignore something that is patently obvious.

                1. You pointed out the excuse for treating it as a second class right. But this is based on policy decision that was decided already on the day the 2nd amendment was ratified: It’s a right, like it or not, which means it gets treated as a right.

                  And, yeah, there are plenty of people who are up for treating books this way, they get beat down because there’s an amendment saying they get beat down.

                  1. Well it is a good excuse TBF. They also get beat down because books are good. Guns are less good, which is why gun rights get beat down less often.

                    1. Sorry, that should say more often.

                    2. Rights aren’t dependent on your subjective definition of “good.” I don’t think it’s “good” to give two men a “marriage” license and mandate that the Catholic Church let them adopt a child, but your type thinks that’s sacrosanct.

              2. Also: way to undersell the stakes with your sarcastic capitalization of killing. That doesn’t reflect poorly on your character at all.

            2. How many people were killed by _Uncle Tom’s Cabin_?

        2. OK, let’s compare this to abortion — by the time _Roe v. Wade_ made it to SCOTUS, Roe’s child had already been born. So why wasn’t that case also moot?

          What I find shameful is that NYC passed a law that violated a whole lot more than just the 2nd Amendment and essentially told gun owners to sue them — and when they do, NYC gets off scot-free after having forced the gun advocates to pay all kinds of money to pursue the matter to SCOTUS. That’s not right.

          1. Abortion is capable of repetition, yet evading review. A repealed law is not.

            1. A repealed law is not.
              Look at how often the drinking age was changed in the 1970’s.

              1. Yes, really.

                Wait for the law to return before you start speculating your way into getting rid of legal procedure.

                1. Nope. That is as injustice.

            2. Incorrect. A repealed law can then be changed back again.

              1. Yeah, but that requires a purposeful action.

                Having said that, I am sure that if a legislature over and over again kept on reenacting and repealing a law, courts WOULD rule it capable of repetition yet evading review. But not simply because it is repealed once.

                1. Isn’t there a doctrine in equity about that kind of shenanigan?

                2. But that’s an injustice. The court has it at this time. And it was specifically repealed to avoid a decision.
                  Its bad.

                3. That’s the glory. It doesn’t have to be a direct re-enactment. It can be an “ever so slightly different” re-enactment”.

                  1. Courts do not take kindly to pretense, AL.

                    1. When it comes to liberal judges and gun laws, yes, they do.

                    2. Courts don’t take kindly to pretense when they dislike the aim of it. They take very kindly indeed to pretense when they’re in on the joke.

                      I predict the lower court will think the new law just peachy, just as they thought the prior one just peachy. Because they’re in on this joke, the joke’s on the Supreme court, not them.

                    3. Of course they take kindly to pretense, as long as they agree with it.

                      For example, California law has effectively banned all new models of handguns since 2013. Because new handguns lack the legally required safety measures. The fact that the legally required safety measures are technically impossible to obtain…water under the bridge.

                      Law stands on the pretense…

                    4. Of course, how could I forget the cartoonish bad faith y’all see in judges everywhere you disagree with.

                      Tell you what, we wait until this is actually repeated. If the NY legislature is that dumb (and I agree they might be) and then maybe you can see if your rampant, angry, victimization speculation pans out.

                      Until that point, you are lashing out at shadows, and taking out bedrock American judicial principles in the process.

        3. There is a whole spectrum between being an “absolutist” and noticing that lower courts aren’t following the precedent of Heller/McDonald and that the high court (likely for political reasons) has refused to take any cases since except for remanding a stun gun ban in MA.

          1. Except even if that’s true, that’s immaterial to whether this case is moot.

            1. It is true. Gun policies have trade-offs like everything else. And yes, admittedly that fact has little to do with the case itself, but my comment was a reply to Krychek’s t-ball level logic categorizing all 2A supporters as absolutists. It’s tough to follow the comment thread at times.

              1. OK.

                A weighing of policy tradeoffs happens with all rights.

                Operationally, a right ends up acting more as a thumb on the scales than the inviolate ‘SHALL NOT BE INFRINGED!!!’ that is often invoked.

                I’m for an individual right to bear arms. My issue on these threads is the paranoia. The constant defensive crouch and assumption that all against them are liars who want a full ban does the issue no favors in the long-run. You can only call so many things a prelude to communist takeover before you stop being taken seriously.

                Using the victimhood gun rights advocates wave about to justify ignoring laws because your victimhood makes you a special case? That is not a pattern you like much on the left…

                1. Your somewhat misguided characterizations aside, this devolves to one of our usual disputes. You have an inability to recognize the end goals of the gun control movement despite being shown quotes on their long-term goals by those who are in charge of it, combined with past actions of them and the politicians involved. You dismiss it as cherrypicking or just handwave it away as taking the other side on bad faith. I bet myself an ice cream cone that you will come back with the same thing again, though even though I am saying it I may change the results.

                  I’ve made the comparison before, the right (on the whole) wants to ban abortion. But, they will take a little reduction here and a little reduction there (as this pandemic shows), but make no mistake, but if they were in swept into power, the clinics would close soon enough. Likewise, with the left (on the whole) on guns. They would make us disarmed if they could.

                  The one big issue in the culture war has the right held firm on, and even won some ground on, has been on guns. Paranoia, sure. But it’s hard to argue with the results.

                  1. You, as usual, presume a sinister motive where none exist. I dismiss your confirmation bias as what it is – a collection of anecdotes you’ve weaved a narrative of sekret oppression around.

                    The scenario of a hidden agenda in government agencies, countless judges, schools, the media, most businesses is just nonsense.

                    You have the special ‘fundamentally change America’ means a Marxist revolution or some such, but it’s part of the same. It justifies any lack of principle, and ethical lapse because this is a crisis and the other side you’ve dreamed up is worse.

                    It neatly makes you impossible to work with, because you can’t compromise with the evil cabal you see. It’s super dumb, and it’s breaking our Republic.

                    1. The only way you can claim such a motive doesn’t exist is if you’re a patently stupid person or patently dishonest. Which one are you?

                    2. I guess he gets his ice cream cone.

                    3. Damn Sarcastro, ruin my diet. To predictable and I even held up a sign.

                      You can’t see that they want us disarmed. That’s some serious willful blindness. That said, I see you ignore my comparison to abortion. Does the right want abortion ended, yes or no?

                    4. Ah, Aktenberg. Either I agree with you or I’m lying. Standard zealot stuff.

                      and m_k with his ‘they’ that never manage to actually succeed, even as the crisis grows ever closer and the enlightened’s fear and loathing of they grows ever higher.

                      Look at what it’s brought you. An enthusiastic throwing off of principles and rules in order to get at something you are sure is a plot between the legislature and judicuary, but has yet to actually be demonstrated.

                    5. You ARE a liar. You set the bar such that unless a judge or legislature announces it’s acting in bad faith, you claim that there is no evidence of bad faith. You create an impossible standard, and then claim that we’re “violating norms” when we refuse to subscribe to it.

                    6. That’s not a bar I’m setting, it’s the bar that has been set by the judiciary – to show bad faith in a case, you need to have some evidence of bad faith in that case.
                      Yelling about past acts you doesn’t get you there.

                      So until the legislature re-passes a similar law, you are just blowing hot air, legally.

                      You’re mixing up what the law is with what you want it to be. That’s not me being a liar, that’s you being able to deal with reality.

                    7. Aktenberg, denial ain’t just a river in Egypt. Note, though, how he dodged my comparison question about abortion.

                      Again, you cannot argue against the results. Keeping weather eye on legislatures, pressuring the GOP in the primaries, expecting results in office, rallies, protests, attack ads, debating people in denial like yourself and antigun hoplophobes online, etc. etc.
                      The result has been success, for the most part. If the trade-off is a Sarcastro or two complaining we are dividing the county…more than worth it my friend.

                    8. I talked about abortion being fundamentally different at length. If you can’t see how re-passing a law is different than coming to term and having a baby (as is reflected by the current caselaw on mootness), that’s on you, not on me and the judiciary that agrees with me.

                      I do like your ‘continue to be paranoid, who cares about anything else – it’s working!’ last bit to your post. You keep telling on yourself, and it continues to not be pretty.

                    9. The fundamental premise of motivation for a total ban of abortion/guns is the same, legal minutia aside. If this was dodgeball, you’d be out.

                      You call it paranoia, I call it vigilance. I call it persistence, you call it stubbornness. Again, if the tradeoff is some highbrow tisk tisking about decisiveness, that’s an acceptable trade-off. Politics ain’t beanbag my friend.

                      Besides, where’s your posh sensibility when it comes to a whole host of other topics where the left is as divisive? I could name a few….but why bother, as you’d handwave it away by saying “that’s different” for “reasons” and “because”.

                    10. The fundamental premise of motivation for a total ban of abortion/guns is the same, legal minutia aside.

                      Good thing I’m not for either, and neither are most Dems, according to polls.

                      Vigilance would not include weaving speculative plots behind every action. Got no problem with stubbornness or persistence, it’s the telepathic speculation I have an issue with.

                      Next time the Left talks about an unspoken conspiracy to do something, I’ll take issue. I frequent some pretty silly and out-there left wing boards. For all their flaws, writing fan-fiction about the sinister other side is not one of them.

                    11. You don’t know your polls. The thing you don’t quite get, is that the left doesn’t care about guns rights very much compared to other leftist priorities. 1/3 of the country believes that handguns should be banned according to Gallup and roughly half the country believes gun control is more important than gun rights according to PEW; those folks are almost universally on the left of the political spectrum. Partisanship, after the urban/rural divide, is the biggest predictor of whether you support gun rights or not.

                      With a multiplicity of issues, the average leftist, will go along with their party and ideological leaders when they inevitably proposed gun control items. The avg leftist either agrees with these, or doesn’t care enough about guns to do anything about it. Gun control items, btw, that are proven to be ineffective or a deliberate to-clever-by-half rights infringements.

                      Calling the right’s vigilance on guns “paranoia” is like calling the Mona Lisa ugly, just a matter of deliberate subjective indifference. Every issue has it’s nutcases, I will admit, but don’t live in a glass house (to late) and start “nutpicking”.

                      Lastly, I double dog dare you: give me 3 issues on the left today where there is, in your subjective standards, “paranoia.”

                    12. Go on, m_k, tell me more about your vast knowledge of the average leftist.

                      I said in my past post that the left doesn’t go in for paranoia like you do. Their issues are purity tests – i.e. calling everyone from Carter on down a fascist.

                      I call you paranoid because you cannot stop positing a bunch of fiction about conspiracies and collusion and secret agendas wherein you are being targeted by vast institutions, including the government and judges and schools and media and large corporations and scientists.

                    13. I’m quoting poll data at you after you brought it up. Look it up, the data come up readily. Leftists & urban dwellers want to ban guns more than conservatives and rural folks…shocking!

                      Ignorance on your part doesn’t mean bad faith arguments on my part. We are talking past each other because of your ignorance. I recommend getting up to speed on what is traditionally called the problem of intensity in democratic politics. The average leftist wants gun control, but they don’t care about it very much compared to everything else. It’s always like number 20 or so on PEW polls of issue importance. But there is an intense group of gun owners to care very much about the issue, and contact elected officials about it. Politicians listen to the organized.

                      I wish I had bet myself an ice cream cone that you wouldn’t name an issue the left is paranoid about. Them’s some serious partisan blinders ya got on there brother.

                    14. What does intensity have to do with anything? What is your thesis with that? Or is that the main poll you could find so you’re off on that subject now?

                      My thesis is that you are making yourself crazy and you should probably stop, regardless of the beneficial (lack of) policy changes.

                      Of course you think paranoia must be symmetrical, and that by noting the left has different flaws I’m sekretly endorsing them. Calling Carter a fascist is also pretty crazy!

                  2. I’m not trying to make things difficult, but if you can’t make the connections and it’s explained clearly, at a certain point it’s the reader not the writer. I’m not gonna give you a white paper that you wouldn’t read.

                    Leftists and Democrats want gun control, the polls show it clearly, but the average leftist doesn’t care very much about it. Meanwhile, the leaders of the gun control movement (all leftists) want civilian disarmament; their words and actions are clear despite what you say. So while in a sense you’re right that not all democrats want complete gun bans, it is also true that the average leftist Democrat has, and does, go along with the gun control movement leaders’ gun control plans toward disarmament.
                    Make sense? The modern home of the gun control issue is in the democrat party.

                    Paranoia from the left? Take a walk down the information superhighway for a search of “Trump won’t leave office” and tell me what you find, then get back to me. Shit, there are major stories hyperventilating about in mainstream media places such as The Atlantic. Again, take your partisan blinders off brother.

                    Note, I am not disagreeing with your ideological purity test point. That, my friend, is symmetrical. Remember how conservatives felt about those RINOs of McCain and Romney? Or how there is a vocal libertarian/conservative cadre that call Lincoln a fascist? Carter was incompetent, but a fascist, not in my opinion.

                    But by your own criteria, what was the purity test on gun control opinions that we saw in this year’s Dem primary?

                    1. Oops, replied to the wrong spot. Well, it’s below your comment so I presume you’re gonna see it.

        4. This 2A case had nothing to do with “temporary” restrictions during the pandemic. Your analogy fails, like so much other gun control politics.

        5. You’re certainly right that governments impose blatantly illegal rules with respect to other rights, and then slightly change them in order to make things moot. It’s a common enough tactic; it’s wrong there too.

          Of course there’s no equivalent to a pandemic in gun violence, since every measure has been falling or at worst steady in the past thirty years (what makes it even more ironic is the way that so many people on both sides immediately switch around as to whether there’s a pandemic of violence depending on whether we’re talking about that pandemic justifying abridging the 2nd Amendment or the 4th and 5th, for example.) And even outside that, people of course disagree as to what is a reasonable restriction. (Compare banning all public protest to insisting that protests maintain precautions against infection like masks and distancing, for example. Compare bans on just abortion to bans on all elective surgery that doesn’t create a special abortion carve out.)

        6. “they feel the Second Amendment is being treated in a second class way if it isn’t given special privileges afforded to no other amendment”

          All we want is strict scrutiny review. Just like 1A.

          Instead we get the Heller dissent’s “balancing test”.

          1. Breyer’s balancing test is just another name for intermediate scrutiny, which courts feel a comfortable level in using, like putting on an old pair of shoes. Meanwhile, Heller itself didn’t specify strict scrutiny, so you can’t blame courts for not applying it, or Scalia’s historical analysis approach, which lower courts aren’t supposed to do either.

            I would be just happy if lower courts didn’t use Heller’s dicta as the holding and followed it’s precedent consistently.

          2. 1A has countless exceptions. I don’t know if you want to go that rout.

            1. Yes, and right now, the lower courts are proceeding as though the 2nd Amendment confers no actual rights. If all that’s needed to infringe is a stated goal of reducing violence and the government claiming that their actions will do so, then there’s no right.

              1. Lower courts misapplying Heller is a different issue than the level of scrutiny issue Brett is bringing up, which wants to overrule Heller.

                1. No, it’s not. Heller explicitly said no interest balancing and explicitly said that it was a fundamental right. That, by precedent, rules out using rational basis scrutiny.

                  1. Heller does not appear to contemplate levels of scrutiny – it applies a reasonable regulations test.

                    1. No, it doesn’t. Not at all.

                    2. The reasonable regulations language being the main legal finding isn’t particularly disputed.
                      Are you mixing up what the law is with what the law ought to be?

                    3. No, I’m not. There is absolutely nothing in Heller to support your “reasonable regulations.” Nothing.

                    4. Sorry – it was McDonald. 561 U.S. 742 at 785-86 “[s]tate
                      and local experimentation with reasonable firearms regulations will continue under the Second Amendment”

                    5. Out of context. They never claimed that the standard was one of “reasonableness.” Rather, they were citing briefs in rejecting why it was not necessary to decline to incorporate.

                    6. “UCLA law professor Eugene Volokh specifically points to laws that bar people between the ages of 18-20 from owning guns as likely to fall. He also says laws that bar people who have been under restraining orders from owning guns, if those orders were imposed through unrigorous procedures, could also be vulnerable. But Volokh argues that overexcited gun rights activists need to remember that not every restriction on a right rises to the level of a constitutionally prohibited infringement of it.

                      Moritz College law professor Douglas Berman points out that “there is so much pro-reasonable regulation dicta in Heller and echoed in McDonald that a court looking for a way to justify a gun regulation that is not a complete ban can come up with a basis.” This means as well that if the judges in question don’t want to justify the regulation, they might not do so. Given the ideological range of judges, this will surely lead to more circuit splits on gun-related issues, and give future Supreme Courts a chance to reshape Second Amendment law once again.”

            2. Nope, they are few and far between.

              1. You want forum restrictions for guns?
                You want reasonable time place and manner?
                What about a bunch of carve-outs akin to true threats, defamation, imminent lawless action, the morass that has been obscenity?

                It’s not like there aren’t many non-strict scrutiny tests for other rights – endorsement for establishment, undue burden for privacy, reasonability for 4th Amendment.

                1. We already HAVE forum restrictions for guns, you moron. What do you think a blanket ban in schools, courthouses, protests (in liberal states), bars, mass transit are?

                  1. Speech in schools, courthouses, etc. is a whole ‘nother doctrine, chief.

                    Speech has exception for days. The double standard you keep yelling about is not quite what you think it is.

                    1. Oh? Do you need “good reason” to speech? Do you need to pay fees and undergo background checks? Do you lose your rights when convicted of felonies and certain misdemeanors, no matter how long ago?

                      Either be honest or STFU

                    2. Aktenberg, my point is that strict scrutiny leads to many pragmatic exceptions. There is no guarantee that it would lead to a better status quo than what you have.
                      There is no double standard – different rights have always been examined under different tests.

                      I don’t think strict scrutiny will get you to where you want to go gun-wise. Nothing will, because you are more dealing in grievance than an actual plan.

                    3. And you full well know that most gun laws would fail under strict scrutiny. You are lying.

        7. Go fuck yourself.

          1. Please be careful, Aktenberg. The Volokh Conspiracy’s Board of Censors enforces a civility standard.

            If you are a movement conservative, however, you can disregard that point.

        8. Explain how activities protected by the 2A relate to a pandemic, and how the ownership, use, training, or maintenance of a firearm spreads disease.

          Otherwise, shut the fuck up with your false equivalencies.

          1. My point is not that 2A activities relate to a pandemic; my point is that 2A absolutists want the 2A given special privileges that no other amendment is given. Pandemic related restrictions on the 1A are merely illustrative.

            1. This is a fucking lie.

            2. Pandemic restrictions on the 1A have absolutely nothing to do with unconstitutional laws being passed which violate the 2A.

              You’re an idiot.

        9. Except if the 2nd was treated like the first, we’d have no argument. Every 2nd Amendment case would be getting strict scrutity. Lower courts would be striking down laws left and right.

          That’s what you are missing. It IS being treated like a second class citizen.

          1. You don’t know much about 1A jurisprudence…

        10. I see a bunch of privileged, whiny, entitled spoiled brats who think everything is about them.

          But enough about you.

          What it takes for a law abiding citizen to get a permit to legally keep a handgun in her own home in New York City: 5 months, $500, 4 visits to police headquarters, and a further $340 to renew every 3 years.

          Buying Your New York City Gun Rights

          “privileged, whiny, entitled spoiled brats” indeed.

          1. But if a gay man wants to get a “marriage” license, he doesn’t need to get tested for HIV (which he should), and he doesn’t have to wait for his “wedding” cake.

    2. Did you actually read the dissent? Alito cites rather a lot of examples suggesting that the Court ignored its own precedent on mootness.

      1. The old “two wrongs make a right” school of jurisprudence.

      2. Did you read the dissent? Alito is either wrong, or trying to advocate from the bench and lying about it.

        1. I did. You didn’t. He is clearly right.

          1. Yeah, I did. It’s pretty short.

            Alito make a great case the rules have been bent before.
            So therefore he wants to break the rules.

            That’s some playground logic, and I think it’s well below how the law should work.

    3. If you read Alito’s opinion, he has something of a point. The Court seems to constrict and broaden mootness doctrine as necessary depending on whether they want to decide the case.

      Now, I haven’t gone back and reviewed all the mootness cases, and I bet Alito is as guilty of this as anyone.

      But that doesn’t mean he isn’t right that, for instance, prior cases have said that if even a tiny portion of the case is still at issue, it is not moot, but other prior cases have said that if it is just a claim for attorney’s fees remaining, it could still be moot, and if it is just a claim for nominal damages, it should be “scrutinized carefully” (whatever that means) for mootness.

      Since he thinks the case isn’t moot, he’s entitled to say in his dissent how he would have decided the merits. That is not, to him, a nonjusticiable issue.

      1. “The Court seems to constrict and broaden mootness doctrine as necessary depending on whether they want to decide the case.”

        All procedural doctrines that avoid the merits are at risk for this. Is standing applied consistently? The political question doctrine was basically designed with the feature.

        1. Yep exactly. That’s why they should be banned in decisions.

      2. Just because the Court has screwed up in the past doesn’t mean the Court gets to screw up now.

        Alito should be ashamed of himself, and his lack of respect for well-known legal principles in favor of his own policies and blaming it on the past.

        What’s next, bringing back separate but equal because the Court’s gone back and forth about it in the past?

        1. This is different. The mootness doctrine doesn’t put black kids in substandard rule. It’s a neutral procedural rule that should apply the same whether the justices like the case or don’t like the case.

          Alito’s quite right about that.

          1. I allow that justiciability has always been more flexible than it should be. Easy, and fine case to make.

            1) That does not justify screwing with it here,
            2) This would be a level of flexibility well beyond any that I’ve studied.

            To see not one, but three justices say the rules have been flexed in the past, lets just break them now? That’s massively screwed up.

            And yes, one can use similar logic to justify returning to any number of evils.

      3. EXACTLY!

        That’s why I support eliminated mootness (and standing) as barriers to lawsuits involving the Constitution. Because they both are used so often by courts to reach their preferred decision that the government can do what ever it wants.

        1. Yeah, lots of non-lawyers want to do that.

        2. Also, it’s in the Constitution.

        3. Well, that would require a constitutional amendment since Article III explicitly requires a live “case or controversy.”

    4. Thomas, Alito, and Gorsuch should apparently act in accordance with norms because we have tactically decided to pretend we believe in them for now.

      Pretending to believe in norms so you can attack people is today’s political tactic of choice. Forgetting about norms so your side doesn’t have to abide by them is tomorrow’s.

      1. Justiciability is not a norm. Alito is being an ass.

  2. “Writing for eight justices, Justice Sotomayor held that health insurers were entitled to risk corridor payments under the ACA, despite Congress’s failure to appropriate funds to fulfill the legal obligation. ”

    I’m having a bit of trouble squaring that with the text of the Appropriations clause: “No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law;”

    How can you be legally entitled to money which it would be unconstitutional to give you? This seems to be elevating statute over Constitution.

    1. This case is about whether an obligation was incurred, not whether one was paid.

    2. Exactly, and it’s going to become an issue with entitlements when Congress doesn’t *have* the money to appropriate for them.

    3. Unconstitutional for whom? The court? The court isn’t giving money, it’s giving a judgment. Congress would still have to appropriate money to satisfy any judgment the plaintiffs might obtain.

      1. Not necessarily, judgments can be paid from the Judgment Fund which has a permanent appropriation, see 31 USC §1304. It can apply to settlements too, which is how it was used to pay $1.3B in accumulated interest to Iran in 2016.

        1. Right. They appropriated money for judgments. It’s still not the same as the Court giving money it doesn’t have the power to give. (If anyone thinks that a judgment=money, talk to a collections attorney.)

          1. Exactly. If Congress decided “we’re not going to pay civil judgments against the US even where sovereign immunity was waived” and passed a law to that effect, then we’d have a constitutional crisis over the meaning of the appropriations clause.

            But since Congress has appropriated money to pay judgments, the courts can decide when the law requires that one be entered.

            1. Your comment has led me to ponder all the ancillary remedies plaintiffs and the court could use to attempt to enforce a collection of a judgment against a recalcitrant United States. While amusing to think about, I don’t suppose you could put a lien on the Capitol and foreclose if not paid off, or garnish the receipts of the United States until judgment is satisfied.

              1. I am thankful that those things are mere hypotheticals. 🙂

      2. Why doesn’t sovereign immunity apply?

        1. Waived under the Tucker Act.

    4. Seems to me like the holding is basically that if the statute requires payments, then payments are required, and no further appropriations are necessary. That is, if the law says that the government “shall pay,” then absent another statute revoking that, the government shall pay- Congress not specifically appropriating for it isn’t enough.

      1. How can a statute saying ‘shall pay’ override the constitution, which specifically says ‘shall not pay without an appropriation’?

        Or are you claiming that every statute that says ‘shall pay’ should be read as if it automatically included an implied permanent appropriation?

        1. Because the government hasn’t yet paid. It’s just incurred a debt.

          Read the opinion.

  3. My take on the 5-4 Georgia decision is “legal pad versus laptop” — that it is a generational divide between those who practiced law in a time when one had to purchase paper law books and those who practiced law when information was available for free on the web.

    It’s hard to draw a clear line, say 1993 when the Web was invented (the internet itself dates back to DARPnet in 1969) because there were FTP sites before that, and most wouldn’t have internet access for a decade after that, but my guess is that the younger justices view at having to pay for information differently than the older ones do — and that this has nothing to do with their political philosophies.

    1. You are right that everyone who was 65 and younger was in the majority, and everyone who was 70 and older (Alito is 70, Thomas 71) was in the minority. As you say, 65 feels a little bit old to me to be able to point to a bright line to have a just so story, but the general concept works.

      1. It’s also worth noting that 3 of the 4 older justices were on the Court by 1994. Roberts, on the other hand, didn’t become a judge until 2003. Sotomayor was a judge for a while, but Kagan, Gorsuch, and Kavanaugh were all practicing as lawyers much longer. So it may not just be age; it may also be experience practicing law (outside of being a Supreme Court Justice) for a good decade+ longer.

  4. The link to the Maine case goes to the Georgia case.

  5. How can it be a “political question” whether 3rd parties are required to honor subpoenas for the president’s private documents? It’s either a legal requirement to disclose the documents or it isn’t.

    Would it be a “political question” if the 3rd parties were preemptively threatened with prosecution for releasing the documents? If releasing them under subpoena isn’t legally required, then releasing them is a breach of duty by those 3rd parties. If the court refuses to rule, the administration should seriously consider issuing some sort of threat to prevent these firms from breaching their duty. Then the court can rule on that question 2 or 3 years from now.

    Too bad congress is so intent on abusing it’s authority.

    1. The political question argument- and I am not necessarily endorsing it- would be as follows. The issue of whether a House of Congress’ power to compel production of records is limited by the scope of the Executive Power is a dispute between the two branches, which the judiciary should try not to involve itself in or to purport to resolve. It’s for them to figure it out.

      Since adjudicating the President’s privilege objection to these subpoenas would require the courts to opine on that question, a federal court should dismiss any suit that seeks that relief.

      1. Then the executive should threaten prosecution or SEC or FTC or other action against those firms for breaching their confidentiality duty to their client. That should clear it up.

        If courts still want to stay out of it, they can tell congress to police those agencies as it relates to congressional subpoena disclosure.

        1. The thing is, it would have to be with the SEC’s or FTC’s statutory powers to make such a threat.

          1. Presumably there’s some authority which allows some executive branch agency to sanction firms for handing out confidential client data at random to anyone who asks for it. I don’t know any specifics.

        2. I’m…not sure you want the courts to opine on this issue.

          1. I’d prefer congress stop abusing its power

            1. I’m not sure that courts would come down like you want them to in the Congress vs. President subpoena question if you pressed them.

              Or, if they did, I’m not sure you would like the Presidency in an era of Congressional powerlessness.

  6. And we continue the pattern of 2nd amendment cases evading review because of dodgy mooting strategies wherein laws are replaced by their functional equivalents that just try a different way to infringe the right.

    1. Capable of repetition but evading review? ????

    2. At least we don’t have to pretend the people enacting the laws are acting in good faith or that they intend to uphold our rights as guaranteed by the Constitution.

      1. This is a well known doctrine. It’s not bad faith to follow it. I know many think Roberts is suborned by the liberals, but do you think Kavanaugh is acting in bad faith?

        1. I’d agree if the courts routinely gave injunctions against states when they enact these laws as they regularly do in abortion cases. As it is, the current regime allows consistent abuse of the mootness doctrine which results in a functional equivalent of the capable of repetition standard.

          1. This doesn’t follow that standard though.

        2. The government of the state of New York is acting in bad faith.

          1. No way you can know that until they re-pass this law.

            If you can’t prove it, your gut doesn’t have a lot of legal moment.

            1. They already re-passed it with minor changes. “OK, you can travel, but it’s a felony if you stop anywhere along the way.”

            2. You go too far with that claim. These are the people who tried to deny gunmakers banking by telling banks to consider their reputations in servicing gun makers.

              Also, presuming ulterior motives is core to American belief and the reason for its constitutional design.

    3. It’s worth noting that neither New York State nor New York City invented mooting strategy. It’s been around as long as the mootness doctrine.

    4. All the plaintiffs’ lawyers had to do was include a prayer for Section 1983 damages. One line, that’s it, and the case would not be moot. The most boneheaded omission I can think of, and thus they have no one to blame but themselves. I cannot fathom why they didn’t include a prayer for damages; it’s not as if strategic mooting of a case to keep it from SCOTUS is unheard of. (Local and state governments did it for years to avoid a ruling on whether the Fair Housing Act allows disparate impact liability. And when they finally failed to avoid a SCOTUS decision, they ended up winning anyway in a 5-4 decision by Kennedy.)

      1. Maybe they thought their chances were better in the lower courts without a damages prayer. IDK though.

        1. In my experience, that wouldn’t be it, because the damages prayer in these types of cases (i.e., claims against the local government itself, rather than suing a public employee for damages in his or her individual capacity where you’d have qualified immunity issues pop up from the beginning) usually just sit dormant till much later in the case, well after the motion for preliminary injunction is decided and appealed. I can’t think of an explanation other than they just messed up. I haven’t checked to see if it was experienced counsel from the outset, or if experienced counsel just came in when the case was already on appeal and too late to add a damages claim, and I never like to assume incompetence over a strategic decision, but I just can’t think of a reasonable strategy that would omit a damages claim (even if just a claim for $1 in nominal damages) from the get go.

  7. Typically I like Roberts’ restraint but if he convinces the court to stay out of the fight over the legislature’s ability to investigate the White House he’s just setting the stage for domestic conflict.

    If the choices are between an all-powerful executive and a legislative body that has the ability to bring it to heel and thus necessarily has the ability to abuse that power, the Court must side with the latter. The people can act as a check on an out of control congress far easier than an executive that cannot be investigated. You can’t react against what you don’t know.

    Far too many people are being incredibly short-sighted on these questions. Turning Trump into Caesar to own the libs is insanity.

    1. If the choices are between an all-powerful executive and a legislative body that has the ability to bring it to heel and thus necessarily has the ability to abuse that power, the Court must side with the latter.

      Whew, thank goodness those aren’t the only two choices.

      1. He sure burnt that strawman real good.

    2. But Jaypd, the 22nd Amendment is a hard limit on the Executive, while Nancy Pelosi has been there *how* long?

      1. That’s…not the limit anyone is talking about.

  8. Interesting, I believe that divide comes down strictly with age. Alito at 70 is the youngest member of the minority, whereas the majority has a couple at 65.

    1. I think it’s more paper legal pads versus a laptop — a cultural generation that corresponds to age but more involves how the justice last practiced law.

    2. Those 65-year olds need to get off the lawns of the ones in their seventies.

  9. Alito seems to have been writing a lot of dissents lately.

  10. When NYC & NY have lost what they consider to be their state & city rights to restrict gun purchase, possession and use, they have dragged their heels in implementation. Now, in consideration of their “win” I assume they will all but moot the laws they changed to moot this case by administrative and bureaucratic actions and inactions.

    1. And if that happens, there are sanctions for that kind of bad faith.

  11. A bad day for Justice Alito.

    A good day for America.

    1. How can better Americans shove progress down the throats of their inferiors, if the inferior peoples by some legal oversight are permitted to own guns for self-defense?

      1. Easily. Convince them to be better people. Convince them that each human has dignity and is worthy of support. Convince them that selfishness and cruelty aren’t actually virtues, but bad things. Better people won’t need force to do this, other than the force of morals (with a dash of shame thrown in).

        1. OK, that’s not really the vibe I’m getting from the totality of Art’s comments, but perhaps I misunderstood him.

  12. Unless I’m missing something, ALL that the 2A plaintiffs’ attorneys needed to do was including a single line in their prayer for relief asking for Section 1983 damages under Monell, and the case would not be moot and they would have received their SCOTUS decision. What the heck were they thinking in not claiming damages? Seems like they have no one to blame for this outcome but their own lawyers. Am I missing something here?

  13. It’s now 12 years after Heller, and there have been basically no structural changes to any obviously unconstitutional gun laws.

    1. There have been several good decisions about Illinois/Chicago gun laws.

      Other than that, very few.

      1. And Judge Benitez in San Diego (S.D. Cal.) keeps issuing very pro-2A decisions (knocking down California’s ban on normal-capacity magazines, and most recently CA’s ammo purchase background checks). But so far those have each been put on hold by the 9th Circuit while it decides the appeals of the preliminary injunctions, and while there is now a greater chance of receiving pro-2A outcome in the Ninth, that outcome is pretty much decided by the luck of the draw re which three-judge panel is assigned.

        1. Right, and it takes years for these injunctions to go through the courts, while the state gets years to come up with an alternative. But if a court rules that the EP clause mandates same-sex “marriage,” then these people get their “marriage” licenses the very next day.

          1. The ‘God-guns-gays’ rule is always a prominent part of the conservative canon.

      2. Yeah, but even that allowed for a total ban on the Chicago subway, which basically means the carry doesn’t apply there. And Highland Park’s ridiculous AWB was upheld because it might make people “feel” safer.

        The SCOTUS should be ashamed of itself.

  14. I guess I’m naive, but I was hoping SCOTUS would tell NY “not so fast” – can’t use an unconstitutional law as a bludgeon and the moot it to avoid judicial review and ultimately relief to citizens.

    1. If you can’t follow the rules to get what you want, that doesn’t mean break the rules.

      1. Fuck off, liar.

        1. That’s what people are arguing for. Including 3 Justices.

      2. It wouldn’t have broken the rules for the Supreme court to have declared the case wasn’t moot.

        1. It was clearly and manifestly moot. Three justices would ignore that, citing past sins to justify current ones.

          That’s some fanatical BS.

          1. There is another word for past sins.


  15. The lineup in Gustafson v. Alloyd Co. was similar to the Georgia case.

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