Three High-Profile Unanimous S. Ct. Opinions Today, Reaching Conservative(ish) Results, Written by Liberal Justices

Just a mildly interesting result, I thought, which helps show that even on questions related to religion, guns, and discrimination against majority group members, both conservative and liberal Justices can agree. In close cases, Justices' ideological positions certainly may affect their view of the law; but in many cases, the legal analysis isn't really affected by such ideological divides.

I use the "ish" advisedly, precisely because the results don't necessarily have to be viewed as conservative: Equal treatment of religious groups, for instance, is a broadly accepted view among the Justices, and the gun case can equally be seen as a matter of Congress deciding to shift questions to the legislative process from the judicial. Still, I think that those cases may have at first appeared to some as likely to yield a potential conservative/liberal divide—yet the Court's opinions in them were all unanimous.

The other two opinions, on foreign sovereign immunity and civil procedure, were also unanimous (except that in the latter case, Justice Jackson joined the Court's opinion only in part and concurred separately in part), but they struck me as both lower-profile and less likely to be seen as ideologically inflected.

Comments

[Brett Bellmore]

Yes, I’d really thought the three ‘liberal’ justices would find SOME way to rationalize the PLCAA away. I’m positively impressed with their integrity, they’re not total ideological hacks.

[dwshelf]

They felt it was time to be fair.

[Lee Moore]

If you’re gonna lose 6-3 bigly, volunteer to lose 9-0 not so bigly.

Better a conservative-ish result than a conservative result. Especially if you get chips from the Chief for the other cases you really care about.

[bye]

That doesn’t follow. As I showed on the religion case ,even the Jewish Amicus Curiae nails the obviousness of it

Jesus did not say “only help religious people” or “only help Catholics”. He said “help everyone” so the religious imperative is secular if you want to look at it that way

ARGUMENT ……………………………………………………… 5
I. THE STATE’S RELIGIOUS LITMUS TEST VIOLATES THE FIRST AMENDMENT. ………….. 5
II. THE STATE’S RELIGIOUS LITMUS TEST HARMS RELIGIOUS MINORITIES. ………………. 6
A. Courts Cannot Objectively Distinguish Religious and Secular Acts, Especially for Minority Faiths Like Judaism. …….. 6
B. Allowing Courts to Decide What Constitutes Religious Acts Will Harm Adherents of Judaism. ……………………. 10

[Mr. Bumble]

“… but in many cases, the legal analysis isn’t really affected by such ideological divides.”
Which is as it should be?

[Rossami]

… as it always should be.
… as it usually is in fact.
… as it very rarely is in the caricature of the court used by the media.

[bye]

In the case of Catholic Charities to talk of a divide is to manufacture what is not there. See this Jewish Amicus Curiae part “A.”

ARGUMENT ……………………………………………………… 5
I. THE STATE’S RELIGIOUS LITMUS TEST VIOLATES THE FIRST AMENDMENT. ………….. 5
II. THE STATE’S RELIGIOUS LITMUS TEST HARMS RELIGIOUS MINORITIES. ………………. 6
A. Courts Cannot Objectively Distinguish Religious and Secular Acts, Especially for Minority Faiths Like Judaism. …….. 6
B. Allowing Courts to Decide What Constitutes Religious Acts Will Harm Adherents of Judaism. ……………………. 10

[dwshelf]

The order of precedence still stands:
1. Ideology
2. Personal belief
3. Precedent
4. What the constitution actually says.

What this kind of story illustrates isn’t that the constitution won over ideology; rather, that not all questions are ideological.

[bye]

That is a false analysis for at least 3 reasons

1) the Constitution was built on the shared religious beliefs of almost all the Founders, what Lincoln later called “civil religion”

2) It is not a totally rational syllogistic reasoning at all. There are what is called the background of the Constitution , Natural Law and such

3)Most of all it can’t be true that the Constitution won over ideology. Sotomayor and Kagan and Jackson didn’t change a whit.
Most basically they saw that the distinction between secular and religious doesn’t exist for Christianity and the Jewish Amicus Curiae gets that exactly

ARGUMENT ……………………………………………………… 5
I. THE STATE’S RELIGIOUS LITMUS TEST VIOLATES THE FIRST AMENDMENT. ………….. 5
II. THE STATE’S RELIGIOUS LITMUS TEST HARMS RELIGIOUS MINORITIES. ………………. 6
A. Courts Cannot Objectively Distinguish Religious and Secular Acts, Especially for Minority Faiths Like Judaism. …….. 6
B. Allowing Courts to Decide What Constitutes Religious Acts Will Harm Adherents of Judaism. ……………………. 10

If I can put it in street lingo :One part of the court saw instinctively from its religious background what must be true and the others saw from their ignorance that they couldn’t tell where to draw a line bettween religious and so-called secular.
You will remember in the recent case about parents removing their kids from school courses talking about perverted homosexuality that Sotomayor and Kagan had the exact same problem “where to draw the line” [though they could not deny that parents are totally right about homosexaul materials ]

The Supreme Court case Mahmoud v. Taylor centers on parents’ claims of religious freedom to opt their children out of school lessons involving LGBTQ+ books. Justices like Sotomayor and Kagan questioned where the line should be drawn for such opt-outs, considering potential broad implications for various subjects and parental requests.

[JoeFromtheBronx]

I noticed that too. Sensible allotment by Roberts.

One reporter noted Sotomayor cited the Establishment Clause in her opinion along with the Free Exercise Clause. Good to see EC is still a thing.

[Bubba Jones]

The gun case was a product liability case. A dumb one.

That said, it’s basically the same logic that destroyed the opioid manufacturers.

[Bored Lawyer]

Was that their theory? I don’t think it was alleged that the guns were defective. They did what they were supposed to do — kill people. The claim was they were distributed negligently.

[Bubba Jones]

Yes, it’s more accurate to say it’s negligent distribution. The claims (and likely facts) seem to parallel the opioids.

“Mexico’s primary line of argument is that the manufacturers supply firearms to retail dealers whom they know illegally sell to Mexican gun traffickers. The complaint explains that the manufacturers use a three-tier distribution system: They sell to wholesale distributors, who sell to retail dealers, who sell to customers. See id., at 140a. A “small minority” of the dealers are responsible for most of the sales to Mexican traffickers; and those sales often violate federal gun laws—by, for example, involving straw purchasers or proceeding without background checks.”

In both cases you have the manufacturer distributing their gun through legal channels using legal means. But they did not actively police downstream illegal actors.

As a result, the product did harm. So, no, not a defective product case, but a case where the manufacturer is being held responsible for the harm caused by its product, even though the product performed to specifications. Ultimately because an alphabet agency failed to do its job. If it’s *known* that these retailers are violating the law, why aren’t they in jail?

[Brett Bellmore]

“If it’s *known* that these retailers are violating the law, why aren’t they in jail?”

Because it’s not known. The small minority of dealers responsible for most of the sales that eventually end up in Mexico are just the high volume dealers responsible for most of the sales period, and there’s no evidence they’re deliberately selling to anybody in violation of the law.

It’s as inevitable that, if you have a legal market in firearms some will make their way to criminals, as it is inevitable that, if you have a legal market in gasoline, some will make its way to arsonists. Does that make Standard Oil legally complicit in arson?

[dwshelf]

I read it as being an accusation that Smith & Wesson was knowingly rewarding rogue dealers who were illegally selling guns to Mexicans.

But they provided no actual evidence of S&W doing anything of the sort.

On the surface, this might have seemed a 2A case, but it was more a case of can Mexico sue an American company without making even a poor case of misdeeds.

[Bubba Jones]

I want to see a JB analysis on the politics behind Roberts’ assignment of these cases.

lol

[Bored Lawyer]

The CJ knows who is voting what way before he assigns. So if he knows one of the libs is voting in a way he approves, and especially if it’s unanimous, then it makes sense to assign it to them.

There, I did the analysis for you. No need for thanks, just send money, preferably in unmarked bills.

[Bubba Jones]

Needs more breathless self promotion.

[David Nieporent]

There, I did the analysis for you.

He asked for a JB analysis, not a competent analysis.

[Commenter_XY]

BL,

For all the press reporting about SCOTUS, I really wish more attention would be placed on the fact that a 9-0 decision is actually the most statistically likely outcome (~40% of decisions are 9-0).

I think it is a good thing that these nine justices see it the same way ~40% of the time. That degree of unanimity gives me hope.

[bye]

But as separate concurrences show , they often agree on opposed principles.
and EmpiricalScotus.com says 33%
” The Court decides somewhere around 33% or more of its cases on average per term by unanimous 9-0 votes. ”

YOUR DEDUCTION IS NOT CORRET THOUGH
ARE EVEN UNANIMOUS DECISIONS IN THE
UNITED STATES SUPREME COURT
IDEOLOGICAL?†
Lee Epstein, William M. Landes & Richard A. Posner
ABSTRACT—The fact that a substantial percentage of Supreme Court
decisions are unanimous is often used to undermine the theory that the
Court’s decisions are ideologically driven. We argue that if the ideological
stakes in a case are small, even slight dissent aversion is likely to produce a
unanimous decision. The data support this interpretation but also establish
the existence of an ideological effect in unanimous decisions. These
findings are consistent with a realistic conception of the Court as a mixed
ideological–legalistic judicial institution.

[JoeFromtheBronx]

I’d like to hear his comments about his testimony this week to Congress, including his answer to Sen. Sheldon Whitehouse’s questions.

[mulched]

“Bailey’s Beach Club” is the correct answer to any question from Sen. Whitehouse.

[ReaderY]

I disagree. Although Justice Jackson concurred in the judgment, she had a very different view. She said that whether an activity is religious in character or not is based on the nature of the activity, not the intent of the people doing it. And she interpreted “religious activity” very narrowly. In particular, charitable work is simply not a religious activity, so it gets no Religion Clause protection at all. She agreed the Wisconsin law in question discriminated between denominations. But if Wisconsin had simply made ALL charity work subject to its unemployment compensation laws, there woild have been no problem and Catholic Charities wouldn’t have a case. Religion is prayer, sermons, stuff like that. All this other stuff isn’t “religious” in character, even if religions sometimes do it.

Its an astonishing sweep. Under Justice Jackson’s argument, Lukumi Bablo Aye might have been decided differently. If charity work is an entirely secular activity, slaughtering animals would definitely seem to be one.

Under Justice Jackson’s framework, states would appear to be perfectly free to outlaw kosher slaughter, circumcision, and quite a few other things besides. One wonders if baptismal fonts could be regulated as bathhouses. Hosea-Tabor would not be decided as it was – education is secular. Many other things come to mind.

[David Nieporent]

Under Justice Jackson’s argument, Lukumi Bablo Aye might have been decided differently.

It would not have. Jackson’s argument is about statutory interpretation, not the scope of the 1A.

[Josh R]

In addition to David’s point, Lukumi was decided based on favoring some religious practices (Kosher slaughter) over others (Santeria). Additionally, states would be free under Smith to outlaw all animal slaughter, religious and secular alike. Ditto Wisconsin if they made all charity work subject to unemployment compensation.

Nothing in Jackson’s opinion changes those results or their analyses.

[bye]

ReaderY makes the very mistake he thinks he is correcting !!!!!!!!!!!!!
Much of explicitly religous work is secular to the non-religious observer.Christianity and Judaism demand that charity and justice are outside religous allegiance, IE, the command to feed the poor means just that, not the Jewish poor or the Christian poor

The Jewish Amicus Curiae completely undermines ReaderY with its point “A.”

ARGUMENT ……………………………………………………… 5
I. THE STATE’S RELIGIOUS LITMUS TEST VIOLATES THE FIRST AMENDMENT. ………….. 5
II. THE STATE’S RELIGIOUS LITMUS TEST HARMS RELIGIOUS MINORITIES. ………………. 6
A. Courts Cannot Objectively Distinguish Religious and Secular Acts, Especially for Minority Faiths Like Judaism. …….. 6
B. Allowing Courts to Decide What Constitutes Religious Acts Will Harm Adherents of Judaism. ……………………. 10

[ReaderY]

Try reading my comment again. Since what the “Jewish Amicus Curiae” said WAS my point, it hardly undermines it

You seem to have missed that I came to bury Justice Jackson, not to praise her.

[bye]

She spoke of ‘content’ but she makes 3 mistakes too

1) Whether something is religious (nature of the activity) depends on MY intent or it is not secular or religious, it’s simply unmotivated action !!

2) By her reasoning, the nature/content shouldn’t even come up in the first place. I belong to Catholic Charities and I feed people. I would hardly be working for CC if I were anti-Catholic or I didn’t concur with it on simply a-religious grounds (Note: You can be a Catholic and not like what CC does…That is not at all uncommon) So if you work for CC you have maybe a religious reason but most of all as a citizen under Constitutional protection you have a purely PERSONAL reason.

3) The whole analysis is just like the Kagan/Sotomayor nonsense in that case about parents exempting their kids from gay perverted books in a class: To have any talk about ‘drawing the line” is to both admit there is a line and that you are the ones to draw it and not the parents and not the Catholic Charities workers. You can exempt kids and be an atheist , you can work for CC and be an atheist.

[Number 2]

The liberal Justices better watch out; Pro Publica will start writing exposes on the flags their spouses fly.

[Bob from Ohio]

These are all judicial nerd cases. Easy to be open minded.

Now their apologists here can say they supported religious and gun rights, fair justices unlike those horrible right wingers.

Any bets on how the Three Left Amigas will vote on Skrmetti?

[Vryedni]

Yes, Bob, every vote, the ones you agree with as much those you don’t, confirms your nihilistic projection.

That’s life in Bob’s unfalsifiable universe.

[gVOR08]

So Volokh is noting that in a case in which the law favors the conservative side, the liberal justices followed the law. Shame he can’t say the same about the conservative justices when it’s the other way. Presidential immunity and the CO ballot access case immediately come to mind. The “emergency” tariff cases will be interesting. As will any challenges to the Emoluments One airplane.

[Brett Bellmore]

This was not really viewed by Democrats as a hard line gun control issue, I think because the approach that was being used could threaten absolutely any industry, including some Democrats really like.

The vote on the PLCAA was 65-31 in the Senate, and 283-144 in the House. Now, all 31 nays in the Senate WERE Democrats, and all but 4 of the nays in the House, so it WAS a partisan gun issue. Just not a hard line one.

So the ‘liberals’ on the Court could vote the law here without being raked over the coals too badly.

[bye]

YOur view holds if you focus it on guns. but it would be the same with bagels, satchels, or doggie clothes. Guns are a product and what someone does with it is not the producers’ responsibility.
Biden failed miserably on this score.

[QuantumBoxCat]

“In close cases, Justices’ ideological positions certainly may affect their view of the law; but in many cases, the legal analysis isn’t really affected by such ideological divides.”

I’ve yet to read any research on judicial decision making that convinces me of the casual direction stated. I think it’s just as possible that a justices view of the law influences their ideological beliefs. A judge’s views on constitutional history and interpretation and their synthesis of precedent could influence their overall ideological beliefs, which could of course further influence judicial decisions in subsequent cases.

The literature certainly shows a strong correlation between a judge’s ideology (measured in various ways) and their votes in specific cases. But we’re not born with a specific ideology, and it’s certainly possible that some judge’s ideology is formed from their views of the law (perhaps during law school).

[Sarcastr0]

I took the statement as saying there are plenty of decisions that don’t have ideological valence.

Though the OP notes some counterexamples even for ideological cases.

[bye]

This has been a commonplace analysis since 2012
Even unamity does not imply ideological agreement.

ARE EVEN UNANIMOUS DECISIONS IN THE
UNITED STATES SUPREME COURT
IDEOLOGICAL?†
Lee Epstein, William M. Landes & Richard A. Posner
ABSTRACT—The fact that a substantial percentage of Supreme Court
decisions are unanimous is often used to undermine the theory that the
Court’s decisions are ideologically driven. We argue that if the ideological
stakes in a case are small, even slight dissent aversion is likely to produce a
unanimous decision. The data support this interpretation but also establish
the existence of an ideological effect in unanimous decisions. These
findings are consistent with a realistic conception of the Court as a mixed
ideological–legalistic judicial institution.

[wvattorney13]

My faith in the judiciary has come back. I think that is probably the result of CJ Roberts. He will surely let me down soon.