The Volokh Conspiracy
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Kavanaugh v. Gorsuch—The Return
Today's opinions are a requel to prior splits among the most recent Republican appointees to the Supreme Court.
This morning the Supreme Court decided two cases in which Justice Brett Kavanaugh wrote the majority opinion and Justice Neil Gorsuch dissented: Reed v. Goertz and Turkiye Halk Bank v. United States. The former case concerned the statute of limitations for Section 1983 procedural due process claims. The latter (in which Justice Gorsuch only dissented in part) concerned whether district courts have jurisdiction over criminal claims against foreign state-affiliated banks given foreign sovereign immunity.
This is not the first time we have seen splits between these two justices who were appointed to the Supreme Court by the same President within a span of only 18 months. I blogged about splits between Justices Kavanaugh and Gorsuch back in 2019, here and here.
Note that we've also seen a significant number of splits between Justices Gorsuch and Barrett, including Bittner v. United States, in which Gorsuch wrote the majority and Justice Barrett wrote the dissent. Last term, Justice Gorsuch dissented from two-thirds of Justice Barrett's majority opinions.
This growing list of splits among justices appointed by the same President, across a range of subjects, helps illustrate how simplistic descriptions of justices' perceived political ideology do not capture much about their actual jurisprudence.
[Note: Yes, I meant to use the word "requel" in the subhead above.]
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This growing list of splits among justices appointed by the same President, across a range of subjects, helps illustrate how simplistic descriptions of justices’ perceived political ideology do not capture much about their actual jurisprudence.
Don’t go full Roberts. You really don’t want to go full Roberts.
But moving on to political philosophy, the left is a thing – it has a semi-coherent philosophy. It’s a collectivist ideology, aimed at equalising humans. Chop the tall down, give the short a stool. That’s why lefties like judges to see past the words and do the good deed anyway.
Obviously there’s all sorts of currents and furious arguments about tactics on the left and personal backbiting, plus the usual quota of cynics and grifters taking the opportunity to feed at the trough. But basically, the left exists as a coherent idea.
But the right does not. The right is everybody else. It’s not a thing, it’s a ragbag containing Coolidge, Bismarck and Pope John Paul II. These folk have next to nothing in common, apart from not being lefties. Hence it’s hardly surprising if the right is fissiparous. It’s an “emergent” political property. People like JK Rowling can emerge, much to their own surprise, as right-wingers, simply because they have become apostates to the left.
Churchill once said that “India is no more a united nation than the equator.” Something very similar applies to “the right.”
Yes yes, only your side is coherent, the other is a bunch of hacks.
ALL politicians have one thing in common: progress and independent thinking scare the crap out of them. To pretend your particular brand of fear is somehow wholesome and consistent while all others are hypocrites and liars is just a matter of Alice looking at the mirror.
How delightful ! I’m a lefty for the day !
I don’t remember drafting Lee Moore.
Of course, I was so stunned by seeing Team Conservative draft racism, superstition, misogyny, gay-bashing, backwardness, ignorance, disdain for science, xenophobia, Donald Trump, and insurrection that I might have missed our Lee Moore pick.
If so . . . welcome to the 57-time defending champions, Lee!
That’s really not what he is saying is it ? His point is that the left has an overreaching vision of equity and will rationalize whatever is necessary to achieve that vision. The right is pretty much everyone else.
That doesn’t make the right incoherent, though some of them certainly are. Some of them are far more coherent than any leftist. His point is that “the right” is simply the set of “not left”. That covers lots of ground.
The modern right has become so disconnected from reality it simply has no coherent or defensible ideology other than ‘pwn the libs,’ and, more importantly never has. *wink*
‘Chop the tall down.’
I think this just means ‘taxing the rich.’
I do like how you studiously avoid the current core beliefs of the US right – Trump won in 2020, the Democrats are Satanic cannibals, and trans people pose an imminent threat to western civilisation.
I think this just means ‘taxing the rich.’
Who could be surprised ?
But in fact the left has allowed its enthusiasm for chopping down the successful to extend to the expropriation of the means of production, distribution and exchange, the extermination of the kulaks, eliminating the “gender gap” in pay, race quotas (in various disguises) to keep down the number of whites and especially Asians in universities, and disapproval of competitive sports.
It’s true that Marx had a rather narrow economic focus, but the left encompasses outrage at all kinds of inequality that have nothing to do with money. What do you imagine all the excitement about White Supremacy is about ? It’s certainly nothing to do with tax. Did the kerfuffle about same sex marriage entire pass you by ? Have you slept through the battle of the pronouns ?
As to your bespectacled obsession with the “current views of the US right”, I’m afraid not everyone is as parochial as you. The left and the right exist in their various forms all over the place. And time.
(The reference to “tall” is, alas, not American and so far outside your own experience – it refers to the Australian attitude to “tall poppies”)
“simplistic descriptions of justices’ perceived political ideology do not capture much about their actual jurisprudence”
Statute of limitations and foreign state-affiliated banks are not political topics, no matter how you describe political. On political matters [abortion, guns and a few others], political ideology absolutely capture most of the judge’s jurisprudence. Has Kagan ever upheld an abortion restriction?
Kagan’s no dummy. She’s perfectly willing to trade her vote and give Roberts what he craves – watered down rulings that set no useful precedent, for which he can assemble a large majority so that it looks like the court is united. Better for Kagan than a 5-4 or 6-3 defeat that does set a useful precedent. So she does sometimes vote “the wrong way” – as did Breyer.
But on abortion and the death penalty, no. Those are articles of faith – to trade votes on those would stain her reputation forever. Which is probably why Dobbs came out the way it did. Kavanaugh is such a squish he’d have been bound to buy some sort of Roe-preserving compromise crafted by the soothing pen of the Chief Justice. But Kagan wasn’t selling.
Statute of limitations and foreign state-affiliated banks are not political topics, no matter how you describe political. On political matters [abortion, guns and a few others], political ideology absolutely capture most of the judge’s jurisprudence.
Bob gets it right. That Justices differ on technical legal questions says nothing about the influence of political ideology on politically important topics.
The byline says “Jonathan Adler”, but every single “Josh Blackman” detector I have was pegged at the max by this post. Straight down to this line:
Related to that link, the way that article treats Matrix: Resurrection is a pet peeve of mine. Accurate writing should not be sacrificed to “avoid spoilers” of plot points that everyone sees coming before they walk into the theater.
While on the subject, sort of, am I the only one who thinks “The Matrix” is a gigantically overrated, somewhat silly, movie, with a central idea that lots of Jr. High School students consider interesting?
I don’t get it.
I liked the movie just fine. But, more importantly, it has given us a useful political metaphor:
https://en.wikipedia.org/wiki/Red_pill_and_blue_pill#As_political_metaphor
It’s more about style, action and special effects than any central ideas. I thought the main failure was in the justification for the Matrix, that human bodies were needed to generate energy. More likely that the AIs would need human consciousness to maintain themselves with new human-created information, like the current wave of AIs (and human audiences always like to feel that humans are uniquely special, and could not be substituted for by other large mammals).
The Matrix is an amazingly-executed self-contained action movie: to the extent it seems trite, it’s because so many of the techniques it pioneered have become industry standards. Yes, it is definitely silly, but if you embrace it I think that’s a big part of its charm.
The first sequel is not very good, and the second one is terrible. If they had made a fourth one, I’m sure it would have been so bad as to be unmentionable, but fortunately that never happened.
ISWYDT.
Someone was trying to tell me the other day that there are more than three Indiana Jones movies. I don’t know where these crazy conspiracy theories come from.
Yes, it was galactically overrated, not just gigantically overrated..
Not at all. The post has the word “I” only twice, and it doesn’t play amateur psychologist/school lunchroom gossip to “explain” why the votes came out as they did.
The post was only four paragraphs long! Not a chance.
Wow, sounds pretty technical, like that Perry Mason Episode where his clients Mexican Divorce was a vital plot element,
but it’s just great for hopefully until the 2050’s (if NG lives as long as RBG did) to have a Judge named “Gore-sucks”
Frank
Since, as we all know, 99.9% of all Federal cases involve abortion, SCT nominees’ views on Roe and now Dobbs are all that matters. Everything else is trivial.
. . . says a guy who apparently never heard of Dobbs.
Wait until the Volokh Conspirators hear about what happened to their heroes, Paul Clement and Fox News, recently. And what Ron DeSantis has been up to in Florida. And recent developments concerning the Thomas family’s consumption and transactional habits. And the criminal charges — filed and impending — with respect to Donald Trump. And . . .
did any of them do what Jerry Sandusky did?
A blog that claims to be trying to make conservative thinking more palatable to a broader audience, yet offers uincessant vile racial slurs and Jerry Sandusky references but doesn’t have the courage to touch Fox News, Ron DeSantis, Clarence Thomas, or Donald Trump?
Are conservatives still wondering why they get their asses kicked by better Americans in the culture war?
Might want to tell Fancy Nancy Pelosi
What did happen to Paul Clement recently?
Mr. Clement represented the deplorable litigant in The Defamation Case That Shall Not Be Named At The Volokh Conspiracy.
The case certainly didn’t cover the defendants with glory, but I’m not sure how it reflects on Clement. Given the facts he had to work with, the settlement seems like about the best result that could be reasonably expected. He also won a Supreme Court case a few days ago, so I don’t know that he has anything to be particularly bummed out about.
Didn’t the judge rebuke Fox and its lawyers in that case for a lack of credibility?
“This growing list of splits among justices appointed by the same President, across a range of subjects, helps illustrate how simplistic descriptions of justices’ perceived political ideology do not capture much about their actual jurisprudence.”
Except Kagan, Brown, and Sotomayor are guaranteed votes for Democrat issues.
Trump: We’re going to overturn Roe!
Justices: (Overturn Roe)
Adler: Coincidence.
The Volokh Conspirators are playing a very weak hand . . . and not especially well.
Jerry Sandusky, Poker expert
It wasn’t coincidence, Trump said all along he’d appoint judges that would follow the constitution.
It’s not like the constitutional issues issues that made Roe so controversial when it was issued ever were reconciled by subsequent decisions.
Issues that were recognized even by legal scholars on both sides of the abortion debate.
As Ruth Bader Ginsburg said, very presciently, about Roe before she was on the court: “doctrinal limbs too swiftly shaped, experience teaches, may prove unstable.”
It hardly took Trump issuing orders for the justices to finally decide as RBG foretold that the reasoning of Roe was too unstable to survive.
I note that in Reed, Thomas did his usual and predictable dissent habit of describing the offence in some detail before moving onto the legal issues. Gorsuch did not, either because he thought Thomas had already covered it, or because he reasoned from his understanding of the legal process, while Thomas reasoned from his belief that Reed is guilty – which he may well be – and hence does not get the benefit of any doubt.
Meanwhile, although in general finality and limitation arguments have some merit, in the specific instance of DNA testing, such testing is significantly cheaper than holding a single hearing on whether to test, let alone appeals against the decision of such a hearing, and if there is a question concerning chain-of custody, that can easily be addressed after the test, depending on the test results.
From a rational point of view, therefore, when the state resists testing, the rebuttable presumption should be that the state or its agents think that there’s a high probability that the test will be exculpatory.
There needs to be some kind of post-conviction Brady material rule… it seems that in many cases of exonerations after defendant spent decades in prison…its because the State (writ large to include police and prosecutors) intentionally withheld exculpatory evidence to get the conviction in the first instance OR evidence was re-tested or found in some storage bin that was never tested that shows they had the wrong suspect the entire time.
When its intentional malfeasance, nobody anywhere objects to the person getting another shot at an appeal or post-conviction petition. When its so called accidental…all these roadblocks emerge. Well the person already got an appeal (when it wasn’t known this evidence existed) so they’ve exhausted remedies. For fucks sake…enough people have been exonerated by now that any time there is forensic evidence that could prove or disprove the guy on death row (or life in prison) did or didn’t do it, fucking test it. Even if other evidence of guilt exists (like a confession). People confess to crimes they did not commit ALL THE TIME. Or it was beat out of em. Or they simply just want the questioning to stop and say what the questioner wants to hear so they shut the hell up. I don’t get the resistance to successive post conviction appeals. The goal of any system of justice must have as one of the foundations the premise that the “system” punishes those that are guilty and frees those that are innocent while also recognizing that the ‘system’ is not infallible because human actors participate at all stages of it and humans constantly FUCK UP. Which is recognized when its intentional hiding of evidence or other malfeasance. Unintentional mistakes also result in wrongful imprisonment/capital punishment so what about them?
Which pieces of evidence in this case do you feel meet that description?
Thomas’s factual summary is 350 words long, and the description strikes me as matter-of-fact rather than inflammatory. I also think the nature and strength of the evidence is relevant, if you’re trying to assess whether or not it would unfair to deny this litigant the opportunity to present his claim to the district court.
I take your point, but while any one DNA test is not especially burdensome, a rule that every convicted criminal is entitled to have any evidence they want tested for DNA is a pretty heavy lift. At a minimum I think the state has a strong interest in avoiding a testing obligation in case like this one, where:
1. The original investigation already linked the defendant to the crime by DNA evidence;
2. The state agreed to some of the supplemental testing that the defendant wanted;
3. The defendant wanted at least 41 additional items tested;
4. The nature of the items and evidence storage makes it fairly unlikely that an interpretable profile would be found; and
5. There isn’t really any conceivable way that any profile that was found would undermine the prosecution theory, or bolster the defense case.