5/11 scotus briefs

jcutonilli · May 28, 2020

press1280 said:
I thought the argument was that intermediate scrutiny was the wrong standard.

The typical 2A argument is that the intermediate scrutiny standard the lower court used is really rational basis.

From NYSRPA cert petition

If this kind of showing satisfies heightened scrutiny, then this Court did not mean what it said in Heller. And if that is truly the case, the word that Heller and McDonald amount to no more than rational basis

they always seem to leave out why it is rational basis rather than intermediate scrutiny.

I believe the lack of any real evidence is one of the reasons they chose the case.

What typically gets argued is either text, history and tradition and/or strict scrutiny

From NYSRPA merit brief

the Second Amendment protects the right to keep and bear arms, and the framers plainly envisioned that the citizenry would be able to transport their firearms to the training ground. Moreover, the history and tradition of the Second Amendment, much of which was surveyed and relied upon in Heller, confirm that Second Amendment
rights were never understood as confined to the home.

and

If means-end scrutiny has a role to play in Second Amendment cases, this Court should clarify that strict scrutiny applies

esqappellate · May 28, 2020

jcutonilli said:
That is not exactly correct, the typical courtroom argument simply rehashes the briefs. It is not really persuasive because nothing new is said.

Oral arguments can be used to clarify aspects of the case, which can change the outcome.

While they have canceled many oral arguments in today's social distancing environment, they have not canceled them all. This demonstrates that they can be useful., but are not needed for many cases.

The vast majority of appellate cases are decided without oral argument. See attached. For example, in the 4th Circuit, the court has roughly 5000 cases a year but oral argument is granted only in about 450. https://www.ca4.uscourts.gov/faqs/faqs---statistics But in the relatively few cases in which argument *is* held, argument can be really important. I would estimate that of the over 100 appellate arguments I have had, I can say that oral argument was really important in about half of them. And importance is measured not just by the result but also by the contents of the opinion that was written and the precedent that was thus established.

Kharn · Jun 1, 2020

Nothing today

Inigoes · Jun 1, 2020

Kharn said:
Nothing today

The pattern that I noticed under the lockdown.

Opinions are only issued on opinion issuance day

Orders of the Court has been the following day.

danb · Jun 1, 2020

Orders were issued today. but there were no grants at all. There are almost three dozen cases that were relisted. There are also, after today, 21 opinions to be issued in 21 business days.

daNattyFatty · Jun 1, 2020

Inigoes said:
The pattern that I noticed under the lockdown.

Opinions are only issued on opinion issuance day

Orders of the Court has been the following day.

So today is an opinion day?

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Kharn · Jun 1, 2020

Today is an orders day, the list did not include any action on 2A cases.

Steel Hunter · Jun 1, 2020

NAGR v. Mangan (1st amendment / political committees) was denied today. That's not really important to 2A cases though considering that's really a 1A case. The continued waiting game begins.

press1280 · Jun 1, 2020

Only 4 conferences left until summer break........

Steel Hunter · Jun 1, 2020

All 10 cases relisted for 6/4. Remember that the Heller decision was released on the last day of session. We might also see a grant on the last day of session.

whistlersmother · Jun 1, 2020

Probably 4 justices writing dissent of cert denial briefs...

Yea, I'm that cynical and mistrustful of Roberts.

press1280 · Jun 1, 2020

whistlersmother said:
Probably 4 justices writing dissent of cert denial briefs...

Yea, I'm that cynical and mistrustful of Roberts.

That would be a problem since they have the power to grant cert.

whistlersmother · Jun 1, 2020

press1280 said:
That would be a problem since they have the power to grant cert.

Thank you. My cynicism gets the best of me.

swamplynx · Jun 1, 2020

whistlersmother said:
Probably 4 justices writing dissent of cert denial briefs...

Yea, I'm that cynical and mistrustful of Roberts.

Only takes 4 for a grant, but with Roberts' recent action on the 1A and his past treachery, Kav, Gor, Thomas, and Alito are well reasoned to take some time sussing out Roberts to determine if it might be better to pass on the current crop of cases in hopes for another Trump pick, vs. risk a bad decision.

danb · Jun 1, 2020

swamplynx said:
Only takes 4 for a grant, but with Roberts' recent action on the 1A and his past treachery, Kav, Gor, Thomas, and Alito are well reasoned to take some time sussing out Roberts to determine if it might be better to pass on the current crop of cases in hopes for another Trump pick, vs. risk a bad decision.

What if this is as good as it gets?

Trumps re-election in this environment is far from certain. Nor is a Senate majority.

A weak Roberts may be better than the strong progressive we get under Biden.

press1280 · Jun 1, 2020

danb said:
What if this is as good as it gets?

Trumps re-election in this environment is far from certain. Nor is a Senate majority.

A weak Roberts may be better than the strong progressive we get under Biden.

NYSRPA got cert. Is the CA roster (Pena) that much of a stretch where they think Roberts will suddenly fold?

swamplynx · Jun 1, 2020

press1280 said:
NYSRPA got cert. Is the CA roster (Pena) that much of a stretch where they think Roberts will suddenly fold?

NYSRPA was about as narrow a case there could be. That's why it got cert. Before NY and NYC folded and mooted the case, those laws were (and others still are) almost as absurdly infringy as DC's pre-Heller. Had NY/NYC not folded, a Roberts' written opinion could have easily resolved the case with essentially the same outcome in an extremely narrow opinion that resolved that specific controversy, but did not expand the right beyond Heller.

Everything else up isn't so simple and a finding for us would result in an expansion (confirmation) of the right. Even the CA roster case. If you find a roster unconstitutional you are 3/4th of the way to also finding AWBs unconstitutional...

danb · Jun 1, 2020

press1280 said:
NYSRPA got cert. Is the CA roster (Pena) that much of a stretch where they think Roberts will suddenly fold?

I am simply commenting on: "it might be better to pass on the current crop of cases in hopes for another Trump pick, vs. risk a bad decision."

People may be assuming too much about "another" Trump pick. Whatever he does or does not do, Roberts may be as good as it gets.

daNattyFatty · Jun 3, 2020

danb said:
I am simply commenting on: "it might be better to pass on the current crop of cases in hopes for another Trump pick, vs. risk a bad decision."

People may be assuming too much about "another" Trump pick. Whatever he does or does not do, Roberts may be as good as it gets.

Well, we hope his next pick is like Gorsuch. Trump thus far hasn’t shown any desire to compromise with the Dims on a so called moderate, so why would he start now?

That said, obviously we can’t predict the future, so yeah, we gotta go forward.

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lazarus · Jun 8, 2020

daNattyFatty said:
Well, we hope his next pick is like Gorsuch. Trump thus far hasn’t shown any desire to compromise with the Dims on a so called moderate, so why would he start now?

That said, obviously we can’t predict the future, so yeah, we gotta go forward.

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No I think his point is it’s rather unlikely Trump has another term. So any appointees would need to be in the next few months. Which seems unlikely. And heck, even though McConnell would likely pull out all of the stops Democratic senators could still pull out every procedural hurdle and likely delay a confirmation vote for at least weeks. Which more likely pushed the window to something more like “by mid fall at the latest” or the chances of anyone getting confirmed in time is small.

Sure it’s always possible Trump gets another term. But the National situation makes it unlikely an incumbent would get re-elected of any stripe. And Trump by all appearances is the least popular modern president at this point in an election cycle.

He might pull off an electoral college win and lose the popular vote by many, many millions instead of just a few million like his first time up. But his path to re-election is almost non-existent short of a sea change of voter opinion in the next 5 months (and recent events don’t appear to be helping him. The opposite).

That’s my worry with cases getting punted and a possibly less friendly SCOTUS in a year or two or a few.

PS and also as pointed out, there is a strong possibility Republicans don’t hold a majority in the senate after this fall also and McConnell did away with filibusters for SCOTUS picks. I doubt democrats if they take the senate will just decide to reintroduce them.

5/11 scotus briefs

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