Final Predictions For the Final 3 Cases

Monday, Monday, Monday! Trump, NetChoice, Corner Post!

Today, it took the Court about 45 minutes to hand down three opinions: Loper/Bright, Fischer, and Grant Pass. I only predicted one of those assignments correctly. The Chief had Loper/Bright, and he went all in to overrule Chevron. The Chief also kept Fischer for himself (not Gorsuch), and Gorsuch wrote Grant Pass (not Jackson). Given my dismal track record, you would think I would stop making predictions. No such luck.

There are three remaining cases that will be handed down on Monday, the final day of the term.

I still think the Chief Justice holds Trump v. United States for himself. It will be the last case of the term.

In the February sitting, the NetChoice cases and Corner Post were argued. Justices Alito and Barrett are the only justices who have not written from that sitting. One of them has NetChoice and the other has Corner Post. I previously predicted Alito for that duo of cases, though a few people suggested Barrett may be the more likely pick. She was in the middle of the oral argument, and was the key vote to grant the stay on the emergency docket appeal. Then again, this case may be so fractured that there is not a clear majority. Alito may have a plurality or something to that effect. For the term, Alito has four majority opinions and Barrett has five. I'll stick with Alito for NetChoice, and Barrett for the nerdy procedure case, but my votes here are not confident.

Stay tuned for Monday, Monday, Monday!

Comments

[DJK]

So, a nearly clean sweep for the conservatives in today's opinions. Josh, are you still worried about Blue June?

[LKB]

Down goes Chevron! Down goes Chevron! Down goes Chevron!

Combined with Jarkesy, DC is going to be turned inside out!

Congrats to Phillip Hamburger, whose been persuasively arguing for years that the modern administrative state has no clothes, and put together the test cases that have us where we are today.

[TextFirst]

The Ninth Circuit power grab is over. West coast cities, you can have your parks back!

[Dr. Ed 2]

It's now illegal to sleep in a motor vehicle.

All long-haul truck drivers are now criminals.

[BadLib]

State and local jurisdictions are now free to, through the democratic process, decide if, when, and how people can sleep and camp on public land - just as they can already could decide if long-haul truck drivers can drive on certain roads or park on certain streets or park on the shoulders of off-ramps.

I'd wager that, as a percentage of population, most jurisdictions do not have laws banning anyone from sleeping in their trucks on public land for a few hours as long as they legally parked and complying with parking regulations (such as duration and the truck being properly registered).

And I think private truck stops (and probably even many other private places that offer truck parking) generally allow truckers to park and sleep in their trucks for a limited time.

So, no, to say that "All long-haul truck drivers are now criminals" is a lie that even Trump probably wouldn't make because it's just such an absurd claim.

[TextFirst]

Couldn't have said it better. Different people can come to different conclusions on what the law should be and no doubt different jx'es will have different rules. But the point of the case is that these are questions left to elected officials and ultimately voters; the Constitution is silent on the topic.

[SimonP]

Shorter Roberts: "It is unequivocally the role of the judiciary to state what the law is. Except for all of those times we didn't, previously. Going forward, anyway. Did I make that sound like a constitutional holding? Hm."

[not guilty]

The Supreme Court in Fischer v. United States has narrowly construed 18 U.S.C. § 1512(c)(2) regarding obstruction of an official proceeding:

To prove a violation of Section 1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so.

https://www.supremecourt.gov/opinions/23pdf/23-5572_l6hn.pdf (slip opinion p. 16)

That is good news for hundreds of January 6 defendants. Donald Trump is unlikely to benefit, though. The Court opined:

When the phrase “otherwise obstructs, influences, or impedes any official proceeding” is read as having been given more precise content by that narrower list of conduct [listed in subsection (c)(1),] subsection (c)(2) makes it a crime to impair the availability or integrity of records, documents, or objects used in an official proceeding in ways other than those specified in (c)(1). For example, it is possible to violate (c)(2) by creating false evidence—rather than altering incriminating evidence.

(slip op. pp. 8-9.) Trump corruptly attempted and conspired with others to create false slates of electors, to transmit those bogus documents to Congress and to persuade Vice-president Pence to recognize the false documents in place of the legitimate slates of electors from various states.

[Mr. Bumble]

If you keep this up your TDS may prove fatal.

[not guilty]

Do you disagree with what I have said, Mr. Bumble? It remains to be seen whether Donald Trump will be afforded immunity in whole or in part, but today's decision will not benefit him.

I doubt that Chief Justice Roberts included the language about creating false evidence as an afterthought.

[Mr. Bumble]

...as I've said on multiple occasions: to be continued and as Trump would say, "we'll see what happens".

[Michael Ejercito]

The issue is that the alternate electors have precedent in the 1960 election.

There were no contemporary sources claiming that JFK's alternate electors were committing any sort of crime.

As. a matter of fact there is no on-point precedent regarding the criminality of alternate electors at all.

(Of course, if the alternate electors had fake ID's, that would be a whole different story)

[Z Crazy]

I get it.

It's one thing if these alternate electors said they were alternates, and that these certificates had the names of these alternates.

Its a whole other thing if the bogus certificates had the names of the real electors, with the votes altered. That's forgery, and what constitutes forgery is well-established under the law.

[Michael Ejercito]

That is correct.

[not guilty]

Professor Richard Hasen makes observations similar to mine.

https://slate.com/news-and-politics/2024/06/jan-6-supreme-court-decision-trump-win-not.html

[Stephen Lathrop]

If officials have to hide documents from a mob, does that impair their availability for use at a proceeding the mob's attack has precluded?

[F.D. Wolf]

Corner Post is such a piddling little case, one wonders why it merited review, much less why it's still hanging around with weightier cases. Normally, under the APA, a plaintiff has six years from the publication of a regulation to challenge it. Corner Post argues it wasn't even in existence six years after the publication of the regulation, so, as I understand its argument, the statute of limitations should begin from its creation when it first was allegedly injured. Both the district and circuit courts rejected this argument and dismissed the case for being beyond the statute of limitations. I would be surprised if the Supreme Court does not do the same.

[JohnSteed]

So Trump gets to move for dismissal of some counts in light of Fischer, and if Smith opposes, the motion will be briefed, argued and decided; and then the loser moves for a stay pending appeal?

[F.D. Wolf]

Of course, Trump will move for dismissal of the two 1512(c)(2) charges, and Judge Chutkan will, of course, deny that motion. He would not be able to appeal that unless and until he was convicted on those charges.

However, if the Supreme Court finds that a President has immunity from official acts, it will send it back to the lower court to determine if the charges encompass official acts. Judge Chutkan will find they do not, and that appeal will be able to go forward immediately.

[Z Crazy]

I wouldn;'t support absolute immunity.

Absolute immunity means more than a President gets to whine about a stolen election., It would mean the president can order war crimes and be immune.

That can;'t be right.

At the same time, others have gotten immunity.

https://law.justia.com/cases/federal/appellate-courts/ca9/17-16756/17-16756-2019-09-04.html

Why should the President have less immunity than police officers?