5/11 scotus briefs

danb · Jun 8, 2020

lazarus said:
No I think his point is it’s rather unlikely Trump has another term.

Not "unlikely." Right now, I'd say 50-50. If the election were held today Trump would lose handily. But, we have 5 months to see, which is a long time. Calendar says asteroid in Sept and interplanetary alien invasion in Oct, we'll see how he handles that!

My point is, Trumps re-election and more court picks should not be taken for granted.

press1280 · Jun 8, 2020

Nothing again on the orders

motorcoachdoug · Jun 8, 2020

i cant help but wonder if the court does not want to rule on these partitions that are being held until next term or someone is writing a very long or complex dissent.....

danb · Jun 8, 2020

We got one grant today. Another lovely procedural case.

The odds of a grant are going down for sure. That said, they did not act on either the qualified immunity cases or the 2A cases, and they have something like 20 opinions to issue in June, more than one per day. So they are very busy... Whatever happens on these cases may very well not happen until the last day of the term.

ETA: the opinion today was seven pages and unanimous, and there was only one opinion. This lends credence to the "really busy" theory.

Kharn · Jun 8, 2020

SCOTUSblog shows 36 cases for next term currently have cert, with twelve of those to be heard in the October sitting.

Maybe they'll kick the complex cases until the Long Conference and mull on them over the summer? Or do a virtual conference mid-summer since they've shown a willingness to work remotely and let advocates get started on their filings, if they can't decide before July.

danb · Jun 8, 2020

all relisted

rascal · Jun 14, 2020

This is all about Roberts and his political calculus. The data show this is a partisan issue even in the federal courts and SCOTUS.

We know with a virtual certainty on how eight of the justices will rule on may/shall, and with a close certainty on AR-15/"common use," mag capacity, and interstate purchase of handguns as well as on strict scrutiny for 2A. So none of this is on the merits: it is a political calculus having to do with Roberts not wanting any more 5:4s than necessary since this increases chance the congress and Biden will pack the court.

consider this: We are trying to read tea leaves on relists and orders, and waiting to see the orders coming out in a couple of hours, and if one of the cases or combinations gets heard, and what Roberts is thinking, while we seem less worried about what the other side will do if Biden gets to replace Thomas, which would likely mean reversals or reinterpretations of core aspects of Heller no matter what Roberts thinks.

rascal · Jun 14, 2020

lazarus said:
No I think his point is it’s rather unlikely Trump has another term.

I think we all agree on that. As much as the Democrats made fun of Trump's chances four years ago, a Trump electoral college victory was within margin of error in lots of sober polls. That is not the case today.

The chance of him replacing RBG or Breyer decreases every day, and the chance that it will be Biden and a Dem senate replacing Thomas is relentlessly increasing

Alea Jacta Est · Jun 14, 2020

Juneteenth. That’s your day.

wjackcooper · Jun 14, 2020

McDonald, Alito J:

Took another look at McDonald, as in Heller five Justices were not receptive to interest balancing. Upon reflection, and again looking at the language Roberts signed onto in Heller & McDonald. . . perhaps there are five votes to take public safety v. 2A balancing completely off of the table, at least there is more reason than I thought to hope so. In any event, a “disputed public safety” based holding applied to “a provision of the Bill of Rights” and “binding on the States” clearly would be unprecedented.*

In short, with the ‘longstanding prohibitions” noted in Heller the safety battle may have been concluded . . .“historical analysis” rather than interest balancing is plainly pointed out in Heller as a proper future approach.** My guess is that, if Roberts folds (or has folded) and adopts a balancing test it will be camouflaged in abundant text, history, & tradition language.

For sure, any 2A opinion that entails safety balancing does not bode well for the 2A in any jurisdiction controlled by liberals.

Regards
Jack

*“Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.” https://www.supremecourt.gov/opinions/09pdf/08-1521.pdf Opinion of the Court, page 36 paragraph 2.

**“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions . . . .” (54) “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing’ approach.” (62 63) https://www.scotusblog.com/2008/06/heller-quotes-from-the-majority/

rascal · Jun 14, 2020

wjackcooper said:
“historical analysis” rather than interest balancing is plainly pointed out in Heller as a proper future approach

With all respect, the "future approach," including just reversing Heller altogether and the court taking the position there is no individual right whatsoever, is entirely dependent on elections.

wjackcooper · Jun 14, 2020

Rascal wrote:

“With all respect, the "future approach," including just reversing Heller altogether and the court taking the position there is no individual right whatsoever, is entirely dependent on elections.”

Yep.

My preceding remarks were meant to address the present posture of 2A cases before the SC and not to include the potential effect of “elections.” Seems to me that ”reversing Heller” is not in the cards at this juncture, although during the years since the decision lower courts have neutralized much of its holding.

Regards
Jack

HoCoShooter · Jun 15, 2020

Ignored yet again.

press1280 · Jun 15, 2020

Oh no I think we’ve been had. Rogers got a dissent from Thomas and Kavanaugh and I think the other cases were denied cert, but I’m not sure

HoCoShooter · Jun 15, 2020

press1280 said:
Oh no I think we’ve been had. Rogers got a dissent from Thomas and Kavanaugh and I think the other cases were denied cert, but I’m not sure

Yeah, it's become painfully obvious that the court, as a whole, doesn't give a shit about the 2a these days.

press1280 · Jun 15, 2020

HoCoShooter said:
Yeah, it's become painfully obvious that the court, as a whole, doesn't give a shit about the 2a these days.

And it appears, yes ALL cases were denied

danb · Jun 15, 2020

Does not say why all of them were denied. Only a dissent for Rogers, and only from 2 justices. In the past we have had dissents which Alito joined. It makes one wonder whether there are underlying procedural issues with these cases.

jcutonilli · Jun 15, 2020

danb said:
Does not say why all of them were denied. Only a dissent for Rogers, and only from 2 justices. In the past we have had dissents which Alito joined. It makes one wonder whether there are underlying procedural issues with these cases.

The only dissent that I am aware of that Alito joined is NYSRPA. I think the underlying issue is the lack of explanation as to why the courts got it wrong.

JerseyMike · Jun 15, 2020

Disappointing but not surprising

press1280 · Jun 15, 2020

danb said:
Does not say why all of them were denied. Only a dissent for Rogers, and only from 2 justices. In the past we have had dissents which Alito joined. It makes one wonder whether there are underlying procedural issues with these cases.

I’m really wondering what these procedural issues could be. After all Gorsuch joined in the Peruta dissent but is nowhere to be found for Rogers.

If these procedural issues were that big of an issue, you’d think maybe a concurrence pointing out the issues might be helpful for future cases?

5/11 scotus briefs

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