The Volokh Conspiracy

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Blue Monday turns into Blue Week, and likely Blue June

Conservatives are 0-5 this week. A new #SCOTUS short list will not help.


I dubbed June 15, 2020 "Blue Monday." Conservatives went 0-4, losing on guns, immigration, the death penalty, and Title VII. I previously associated June 15 with Magna Carta day, an important day on the calendar for the rule of law. Now, another sentiment occupies that day.

Blue Monday has now turned into Blue Week, with a loss in the DACA case. Conservatives are 0-5. How did President Trump respond? With a promise for another Supreme Court list!

Those sorts of promises are no longer meaningful. And more importantly, they will no longer appeal to donors. I think the latter fact will quickly modify the former strategy.

Alas, I suspect that Blue Week will turn into Blue June. I previously made predictions for assignments. Let me update my predictions.

January Sitting

There were eight cases argued during the January sitting. Only one is outstanding: Espinoza. Chief Justice Roberts and Justice Breyer have not yet written for that sitting. I don't think either Justice is willing to write an opinion that declares Blaine Amendments unconstitutional nationwide. Certainly stare decisis on the Kagan Court requires standing by the longstanding Blaine Amendments. I view either assignment as a defeat for conservatives: either Roberts or Breyer writes a baby-splitting decision that leaves no one happy. I'm not sure what the middle-ground is here, but they'll think of something.

February Sitting

There were nine cases argued during the February sitting. Four are outstanding: Thuraissigiam, Seila Law, Liu, and June Medical. Roberts, Breyer, Alito, Sotomayor have not yet written.

Justice Sotomayor will write Liu v. SEC, an unremarkable criminal law case. And Roberts will assign Thuraissigiam to Justice Alito. I'm sure Roberts is content to narrow the scope of the Suspension Clause, especially in light of his Guantanamo decisions.

The Chief will assign Seila to Justice Breyer, who upholds the CFPB in its entirety. That agency is far too important to cripple before an election. Vice Presidential candidate Warren would love that sort of ruling to run on! And this decision avoids the need to clarify severability doctrine. Muddled doctrine is ideal in John Roberts's multiverse of madness. Meanwhile, here on Planet Earth, courts and lawyers suffer from this lack of clarity. Justice Kavanaugh dissents, and, as he did in the D.C. Circuit, rules that the Court can simply sever the for-cause removal provision. Gorsuch and Alito find that the for-cause provision is not severable and the entire agency is invalid. Justice Thomas argues that severability doctrine violates Article III, and the remedy should be limited to the Plaintiffs' injuries.

Finally, the Chief Justice will write June Medical. My prediction: he concludes the Fifth Circuit disregarded binding precedent in Whole Woman's Health. June will be blue.

If I am right, the only ostensible conservative victory would be Thuraissigiam, which frankly, no one outside the immigration bar will care about beyond.

I'll hold off on making predictions for the remaining 10 cases argued in May. We probably won't see any decisions for those cases in the next two weeks. Will there also be a Blue July? Probably.

NEXT: Understanding Chief Justice Roberts's DACA Decision

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29 responses to “Blue Monday turns into Blue Week, and likely Blue June

  1. Souter's Law: The Court naturally drifts left to at least a 4 v 4 split with 1 swing vote. Most Justices since the 60s become more leftwing over time. I'm not sure why PP et al waste so much time and energy throwing a tantrum at every Republican nomination other than just being dumb.

    https(colon slashslash)tinyurl(dot)com(slash)y28k6562

    Theres also a more general rule floating around that states that any organization that does not explicitly frame itself as conservative or rightwing will become more leftist over time. I forget the name though.

    1. Most Justices move left because they don’t have to cater to bigotry any more.

      1. Nah, people, even and especially many people who seem to be intelligent like to move with the crowds. Rather than being renegades they often are champions of the status quo. Things that would have seemed ridiculous to them a few years ago or to people outside the bubble make all the sense in the world with enough of an all pervading environment of reinforcement.

        Even if you're a high status Justice if all you see on the news is how unjust it is to not have forced cake baking and everyone around you and every book and magazine you open up agrees, and you are bombarded with the message from all directions 24/7 it will have an effect.

        It takes a strong presence of mind to go against the SJW plague especially now that it is virtually a state religion and has near total control of all mainstream media. You see the same phenomenon in Communist countries and other places where one cult ideology monopolizes all the power and communication.

        1. Plus in all honesty all these decisions just show more of the incompetence of the administration than justices political leanings. With the exception of course of the LGBTQ case but honestly Gorsuch wrote a textualist argument there. In general, DACA shows you how badly the administration bungled a case. I am not 100% convinced the court saves abortion rights this term but for the sake of argument lets say they do. If that's the case only people we can blame is Louisiana itself how can you write a law that was struck down in 2016. Plus why did the 5th circuit uphold it! These 5 judges want to end abortion rights but they won't do it in a way that goes against the rule of law.

          1. Cut the BS. The administration's actions had nothing to do with it, and you know it.

    2. That was Robert Conquest, I believe.

  2. I appreciate your work Professor Blackman. Unfortunately, I find it difficult to avoid the conclusion that our government is basically illegitimate and a scam. As a member of the millennial generation, my experience is that most regular folks my age and younger, including many who immigrated from all over the world, will generally agree, even though the vast majority of them possess barely a scintilla of basic knowledge and understanding. Or they just find the question uninteresting and a foregone conclusion. There are exceptions, actually some of the most outwardly patriotic friends I have under 40 who will expressly praise the USA as a country and society and culture, which is a different thing than the government to be sure, are an immigrant from Syria and one from Bosnia.

    As a donor or something stated in one of Podesta's infamous leaked emails, "we've all been quite content to demean government, drop civics and in general conspire to produce an unaware and compliant citizenry. The unawareness remains
    strong but compliance is obviously fading rapidly."

    I also found it notable that President Trump has at this moment released another Supreme Court list and called for votes to get more justices. Actually I find it gobsmacking and highly comical. President Trump is just the most prominent and successful current purveyor of the great scam. Perhaps even wittingly so. Give him four more years! We'll get even more corporate tax cuts, more national debt, more consolidation of power in a centralized government run by unelected bureaucrats and judges. Or you can look at the other side of the aisle and get all of those very same things, with minor differences like a little bit more taxes and pride flags. Things like immigration reform that maximize the financial interests of the working and white collar classes by limiting labor supply, or trade deals that put America first, will always be just around the corner.

    1. He released a list, got more judges in one term than most presidents get in 2, and conservatives still lost.

      And his solution is to release another list? Lol.

      1. Be careful trying to time political bubbles. Trump has been failing up his entire life.

        Much like markets, Republicans can remain irrational longer than you can stay solvent/alive.

  3. I think this is the closest we will see Josh throw a fit. Calm down... You still got what you wanted a court that leans right. Don't cry when at times it has to uphold the rule of law. Furthermore you may be wrong. These decisions may come out together because they are the only decisions coming out blue.

  4. I'm tentatively calling this the new "Switch in time"; Only where the first was the Court caving to the party in power, this is the Court caving to the party out of power, but more open to setting things on fire.

    The justices all have things... and don't want them set on fire.

  5. I do not share the author's optimism. I predict that many cases will come down against progressiveness and for Trump. These cases are just snacks for liberals before the full conservative meal.

    1. They have already decided the most important cases.

      None of the others are that significant. Even if Blaine Amendments are eradicated, which would be good riddance, that pails in comparison to the effect that has already taken place.

      1. They can still pave the way to outlaw abortion, make the president immune from investigations, give religious organizations a broad exemption to labor laws, and kill the CPFB. Plenty left to do.

        1. Kill the CPFB ... yeah that can happen.

          But the ministerial exemption already exists, and it was created essentially unanimously. Religious organizations, everyone agreed, already had some exemptions when it came to religious matters, which made sense, so long as it is consistent with Employment Hand.

          The case at hand extends that exemption somewhat, but not at all significantly.

          Presidential immunity ... again everyone, liberals and conservatives, has essentially adopted a form of Scalia's dissent in Morrison. Hence, Trump will be granted some immunity here. If he wins all cases, yeah that's a little extreme, but if he wins with, there is some limitation on subpoena power, that's fairly uncontroversial.

          In other words, the main conservative "victories" are not victories but just an affirmation of a consensus, and the consensus happened, in these areas, to have fallen on the conservative side. That's not helpful when the consensus is overwhelmingly liberal. And the abortion case is far from overturning Roe.

          1. They religious want a ministerial exemption that applies to all of their employees. That would strip labor law protections from many workers in hospitals and universities who do not religious work. That is pretty controversial.

            Presidential immunity would overturn decades of precedent and is very scary to those who don't like dictators.

            The abortion case would make it very hard to challenge future abortion clinic restrictions, and many states will jump on the chance to regulate them out of existence.

  6. Didn't Prof. Blackman indicate he would begin to read and digest Supreme Court decisions before opining?

    Less than a week later, he's offering his analyses before the cases are decided.

    1. Open wider, Rev.

      1. Why? Are you and Prof. Blackman about to unleash a crossfire hurricane of conservative effectiveness that reverses the tide of the American culture war?

        Precisely which elements of America’s liberal-libertarian progress do you expect clingers to dismantle? School prayer coming back? Gay-bashing to resume? Abortion criminalized? Consumer protections eliminated? Obamacare dismantled? Creationism returning to legitimate classrooms? Environmental protections dismantled? Medicare, Medicaid, and Social Security abandoned? Black men compelled to lower their gaze in the company of white women?

  7. I previously associated June 15 with Magna Carta day, an important day on the calendar for the rule of law. Now, another sentiment occupies that day.

    Really? You think these cases outweigh the Magna Carta in importance?

  8. I've decided, as a conservative, that it was totally worth it to lose significantly this week at the supreme court to see Josh lose his mind

  9. Alternative prediction: Chief writes Seila Law, rejecting CFPB along the lines of Kavanaugh's D.C. Circuit opinion. Breyer writes WWH, and Chief provides that opinion the fifth vote.

  10. Forget the Left, it's time for conservatives to consider court packing...

    1. That ain't enough. Unless conservatives start using the left's tactics, that is, threats, violence, assaults, fires, riots, and general mayhem, they're going to lose.

  11. President Trump also tweeted this, "Do you get the impression that the Supreme Court doesn't like me? — Donald J. Trump (@realDonaldTrump) June 18, 2020."

    Holy crap, you guys voted for a 14 year old.

    But we already knew that.

  12. I don't think the failures in the Supreme Court have much to do with Right or Left leaning appointees. I believe the failure is in the continuous appointment of yet another member of the BAR Association robed in statutory process.

    1. Yeah, pretty much: At this point the left has enough influence over the legal community that finding potential justices who wouldn't end up like Roberts is a really, really tough task. It's made harder by the fact that a lot of 'conservative' groups don't actually care about much of the conservative program, having been captured by the institutional Republican party.

      I wish Elon Musk the best of luck with his space colonization ventures, I think we really need the opportunity to get off this planet to where we can found alternative societies without having to find some way to take over existing ones. Probably the only hope for peace is to go out own separate ways, and get far enough apart we're not in each other's faces all the time.

      A pity it didn't happen before the left was so dominant.

      1. Oh, spare me. Roberts only votes the way you like 95% of the time? Cry me a river.

        1. Fuck off. You're being as intellectually dishonest as the "Only 3% of PP's services are abortions" people.