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The Warszawa
Jun 6, 2005

Say my name.


OT 2013! Everyone get excited! Hobby Lobby! Scheutte! John Roberts sticking it to women, minorities, and poor people!

Decided Cases
Schuette v.Coalition to Defend Affirmative Action (state constitutional ban of affirmative action) 3-2-1/2 (Kagan recused) (poo poo plurality by Kennedy, joined by Roberts and Alito; ridiculous concurrence by Roberts; typical concurrence by Scalia, joined by Thomas; silly concurrence by Breyer; KICKIN' RAD DISSENT BY SOTOMAYOR, joined by Ginsburg)

Pending Cases
Sebelius v. Hobby Lobby Stores, Inc. & Conestoga Wood Specialties Corp. v. Sebelius (PPACA contraception mandate)- already being discussed in the last thread, feel free to carry that over here.

The case summaries got away from me last year on account of work and the bar exam, so if anyone wants to take on anything from last year I’m happy to cede that but otherwise I’ll try to churn them out at some point for this term and last term. Most of the delay in posting this has also been work, but I will definitely attribute some of it to finding links for the new category.

Without further ado …

YOUR UNITED STATES SUPREME COURT JUSTICES!

Chief Justice John Glover Roberts, Jr.


Nickname: The Ump, That Motherfucker (OP’s term of endearment)
Prestige Drama Alter Ego: Will McAvoy, The Newsroom. AMENDED IN LIGHT OF CHIEF JUSTICE ROBERTS'S CONCURRENCE IN SCHUETTE: Sandor Clegane, Game of Thrones.
Appointing President: George W. Bush
Education: A.B., Harvard College; J.D., Harvard Law School
Religious Affiliation: Roman Catholic
Style of Jurisprudence: Pragmatic conservative – widely seen as concerned with the legacy of the Court, inquiring minds look at some of his opinions and ask “legacy to whom”? Note: After last term, “White Supremacist Hack” might be a better indicator.
Claim to Fame: hosed up the presidential oath of office in 2009. Probably the greatest appellate advocate alive today – his brief in Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461 (2004), is still given to law students as a model for brief-writing a decade later. Much like the Terminator, however, he has used his skills to try to undermine the regulatory state, to gut the social advances of the 1960s, and kill Sarah Connor. It is also entirely possible that, despite having worked in Washington, D.C., since 1980, he did not meet a person of color until 1997. Wrote a deeply dishonest (in all senses of the word) opinion for the Court in Shelby County v. Holder. The only man in the world that I feel no guilt upon wishing death and unending pain upon – but only in that order, so we can fill that seat pronto.
Famous Opinions: National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012), (also known as “the Obamacare case”). Held that PPACA was constitutional under the taxing power, but not the Commerce Clause. Chief Justice Roberts is believed by some to have written significant portions of both the majority and the dissent in this case, having switched votes fairly late in the process.

Shelby County v. Holder, 570 U.S. ___ (2013), (also known as “the Voting Rights Act case”). gently caress EVERYTHING GODDAMMIT MOTHERFUCKER GOD IS DEAD LOVE IS A LIE.

Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007). Held that voluntary race-conscious school integration, in the absence of de jure segregation or a court order mandating integration, was unconstitutional because “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Basically took a big poo poo all over Brown v. Board, one photo shoot on an aircraft carrier away from being the “Mission Accomplished” of Supreme Court Equal Protection Clause jurisprudence.

Associate Justice Antonin Gregory Scalia


Yes, he always makes that face.
Nickname: The Dissenter
Prestige Drama Alter Ego: Tony Soprano, The Sopranos
Appointing President: Ronald Reagan
Education: B.A., Georgetown University; J.D., Harvard Law School
Religious Affiliation: Roman Catholic as gently caress
Style of Jurisprudence: Two-fisted textualist, except when he’s not.
Claim to Fame: Has developed a jurisprudence and public persona so confrontational and dickish that when someone claimed he said “Mere factual innocence is no reason not to carry out a death sentence properly reached,” it was believable. He didn’t say that, but a case this term may have put that to the rest. Pugnacious to say the least, Justice Scalia arguably pioneered the tricky form of legal writing called “being a tremendous and obvious rear end in a top hat.” Has nine children, further cementing that he is the Walder Frey of the United States federal courts. Heh.
Famous Opinions: Gonzales v. Raich, 545 U.S. 1 (2005) (concurring). Relied upon legislative history, betraying his adamant textualism so he didn’t have to vote in support of people growing marijuana for personal use.

Brown v. Plata, 131 S. Ct. 1910 (2011) (dissent). Dissenting from the judgment that the Eighth Amendment required that the courts intervene to mandate a population limit in California prisons (which were and are insanely overcrowded), Scalia wrote:

A loving United States Supreme Court Justice wrote this, really posted:

It is also worth noting the peculiarity that the vast majority of inmates most generously rewarded by the release order—the 46,000 whose incarceration will be ended—do not form part of any aggrieved class even under the Court's expansive notion of constitutional violation. Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.

Associate Justice Anthony McLeod Kennedy


Nickname: Goldilocks; Doris Day
Prestige Drama Alter Ego: Nucky Thompson, Boardwalk Empire.
Appointing President: Ronald Reagan
Education: B.A., Stanford University; LL.B., Harvard Law School
Religious Affiliation: Roman Catholic
Style of Jurisprudence: Eclectic if you look at it strictly from the liberal-conservative binary, but when you get down to brass tacks, Justice Kennedy is an upper-class white centrist – cool with gay people (Windsor, Romer, but see Boy Scouts), not so wild about people of color (Parents Involved, Grutter). Weirdly fascinated by international law.
Claim to Fame: Once considered a “reliable” vote for the conservative bloc, the retirement of Justice O’Connor thrust him into the swing vote position. But take it from someone who knows better:

Ser Jeffrey Toobin posted:

I am no maester to quote history at you, Your Grace. Swords have been my life, not books. But every child knows that the Kennedys have always danced too close to madness … Anthony Kennedy was not the first. Chief Justice Warren once told me that madness and greatness are two sides of the same coin. Every time a case comes before a Kennedy, he said, the gods toss the coin in the air and the world holds its breath to see how it will land.
Famous Opinions: Because of his role as swing vote for the Roberts Court, Kennedy has visibly taken a side on pretty much every major issue that’s come up in the last ten years. Sometimes, he’s taken both sides. Some notables:

Boumediene v. Bush, 553 U.S. 723 (2008). Held that Guantánamo detainees had the right to the writ of habeas corpus, and the Military Commissions Act of 2006 was an unconstitutional suspension of that right. Based his reasoning on the Insular Cases, which are a series of early 20th century decisions that dealt with the territorial acquisitions of the United States after the Spanish-American War, notably situated Puerto Rico in hosed up legal limbo.

Atkins v. Virginia, 536 U.S. 304 (2002). Held that executing the mentally retarded is a violation of the Eighth Amendment.

Roper v. Simmons, 543 U.S. 551 (2005). Held that executing people who were minors when they committed the crime for which they received the death penalty is a violation of the Eighth Amendment.

Kansas v. Marsh, 548 U.S. 163 (2006). Held that the presence of mitigating factors, when aggravating factors were equally present, did not create an Eighth Amendment violation for a death sentence. Most notable in that Kennedy voted with the majority instead of joining the dissent, which questionined the “soundness” of a capital punishment system that executed mentally retarded people and sentenced minors to death in the 21st century.

Romer v. Evans, 517 U.S. 620 (1996). Held that the Colorado constitutional ban on recognizing gay and lesbian people as a suspect/protected class was unconstitutional under rational basis review.

Lawrence v. Texas, 539 U.S. 558 (2003). Held that consensual sodomy bans were unconstitutional under the Fourteenth Amendment (substantive due process).

One big exception!
United States v. Windsor, 570 U.S. ___ (2013). gently caress you, DOMA!

Associate Justice Clarence Thomas


Nickname: Silent But Deadly
Prestige Drama Alter Ego: Hector Salamanca, Breaking Bad
Appointing President: George H.W. Bush
Education: A.B., College of the Holy Cross; J.D., Yale Law School (15 cents)
Religious Affiliation: Roman Catholic
Style of Jurisprudence: Hipster Originalist – he’s into the dictionaries from the 1780s, none of this commercialized poseur Merriam-Webster bullshit.
Claim to Fame: Doesn’t ask questions and really doesn’t need to – Thomas’s jurisprudence is so idiosyncratic that no advocate is going to spend a lot of time pitching to him. Arguably doesn’t believe in oral argument, stare decisis, or fairies. Does believe in the Privileges and Immunities Clause, but no one else does. Has a reputation for being Scalia’s toady, which certainly doesn’t have any unfortunate implications, no sir, but by all accounts has exercised more influence on Scalia than vice versa. Also, Anita Hill.
Famous Opinions: Just read them all, concurrences and everything. I cannot hope to put into words how Justice Thomas departs from basically every Justice on the Court in the fundamental way that he understands law. I’m not even saying he’s necessarily wrong about everything, but it’s some purestrain through-the-looking-glass poo poo. An interesting note on his voting rights jurisprudence: Thomas basically believes (wrongly, in my opinion) that the Constitution limits governmental remedies to racism to only the most invidious and overt expressions of it. When you consider his originalist perspective and who exactly was writing the Constitution and subsequent amendments, you may come to think that this is actually a fairly reasonable construction of original intent.

Associate Justice Ruth Joan Bader Ginsburg


Nickname: Murtaugh; the Iron Doily; the Notorious R.B.G.
Prestige Drama Alter Ego: Daenerys Targaryen, Game of Thrones
Appointing President: Bill Clinton
Education: B.A., Cornell University; LL.B., Columbia University (see below)
Religious Affiliation: Jewish
Style of Jurisprudence: Too-old-for-this-poo poo liberal
Claim to Fame: Literally at least twice as capable as the average lawyer – in her first year at Harvard Law School, her husband (then a second-year law student at Harvard) was diagnosed with testicular cancer. With an infant daughter at home, she attended both her and her husband’s classes, took notes, and typed her husband’s papers for him (he dictated, at least). She made law review. Upon graduating, her husband took a job in New York, and she transferred to Columbia Law School as a third-year after Harvard refused to accommodate her. She made law review at Columbia. Gave birth to a son, James, in 1965, and during the pregnancy is believed to have consumed the raw, still-warm heart of a stallion. Had colon cancer in 1999, did not miss a day on the bench, got pancreatic cancer in 2009, was back on the bench twelve days after surgery (eight of which were spent in the hospital). Tough as loving nails. Expected to retire in time for Obama to appoint her successor.
Famous Opinions: Pretty much every dissent from last term, particularly the ones in Shelby County, Fisher, Nasser, and Vance. She read the last three from the bench. Alito did his little passive-aggressive eyeroll bullshit but she don’t care.

Stenberg v. Carhart, 530 U.S. 914 (2000) (concurrence). Held that a state partial-birth abortion ban that did not carve out an exception for the woman’s health was unconstitutional. Concurred to state that doctors, not judges, got to decide what medical procedures to use in the interests of safety of the patient.

Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) (dissent).The majority held that the statute of limitations for bringing a wage discrimination claim (in this case, on the basis of gender) begins to run when the initial discrimination is made (to pay a woman less), and that subsequent paychecks do not restart the clock. In effect, this means that by the time you find out you’ve been discriminated against, you’ve lost your right to legal remedy. (This was later explicitly reversed by the Lilly Ledbetter Fair Pay Act). Dissenting, Justice Ginsburg argued that this was dumb and wrong and read her dissent from the bench. Go read it, it’s good stuff.

Our Lady of Kicking rear end and Taking Names has no patience for bullshit narrowing of discrimination remedies.

Associate Justice Stephen Gerald Breyer


Nickname: Ringo
Prestige Drama Alter Ego: Truxton Spangler, Rubicon. It is a testament to how criminally underrated that show is that I couldn’t find the clip I wanted, which is the “Will anyone really give a poo poo?” scene from the finale.
Appointing President: Bill Clinton
Education: B.A., Stanford University; B..A., Magdalen College, Oxford (Marshall Scholar); LL.B., Harvard Law School
Religious Affiliation: Jewish
Style of Jurisprudence: Purposivist, weirdly lovely on criminal procedure sometimes. Also defined as an anti-originalist.
Claim to Fame: Forums poster Bel_Canto's old roommate once went on a run with Breyer outside Trinity College, Cambridge. This is the only interesting thing about Stephen Breyer.
Famous Opinions: Maryland v. King, 570 U.S. ___ (2013) (upholding DNA swabs as part of booking procedure).

Associate Justice Samuel Anthony Alito, Jr.


Nickname: Samuel Anthony Alito, Jr.
Prestige Drama Alter Ego: Todd Alquist, Breaking Bad
Appointing President: George W. Bush
Education: B.A., Princeton University; J.D., Yale Law School
Religious Affiliation: Roman Catholic
Style of Jurisprudence: Conservative-libertarian
Claim to Fame: Was a member of “Concerned Alumni of Princeton,” which was mostly concerned with all the “undesirables” (read: nonwhites and women) getting let in thanks to affirmative action and coeducation. Skip to the next Justice to see how that turned out!
Famous Opinions: Adoptive Couple v. Baby Girl, 570 U.S. ___ (2013). Indian Child Welfare Act case, less broad than it could have been.
Snyder v. Phelps, 562 U.S. ___ (dissent). The lone dissenter in the Westboro Baptist funeral picketing case. It’s actually a decent enough read and you can empathize with his point of view. It almost makes you think he’s a human being.

Associate Justice Sonia Maria Sotomayor


Nickname: The Empathizer; the Wise Latina
Prestige Drama Alter Ego: Joss Carter, Person of Interest. Sonia loving Sotomayor can define prestige drama however she drat well pleases.
Appointing President: Barack Obama
Education: A.B., Princeton University; J.D., Yale Law School
Religious Affiliation: God’s Own New York Yankees. Also Catholic, I guess.
Style of Jurisprudence: Liberal Lioness
Claim to Fame: The first Latina on the Court, she basically redefined “full court press” – probably the most publicly visible Justice. Wrote a memoir, My Beloved World, which is awesome and you should read it. As a nonwhite woman Princeton alum, she is literally everything that Samuel Alito feared would come to pass, which is worth several points in my book. Was a “more than adequate bouncer” at the Yale graduate student bar. Probably beats up Alito in the Supreme Court cafeteria. C’mon, look at this loving Justice!
Famous Opinions: J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011). Held that age is a relevant factor in determining whether an individual is in police “custody” for the purposes of Miranda.

Associate Justice Elena Kagan


Nickname: The Benchwarmer of the Bench
Prestige Drama Alter Ego: C.J. Cregg, The West Wing (by the way, it’s really distressing how few excellent, self-possessed, rear end-kicking women characters there are even in my expansive definition of prestige drama …)
Appointing President: Barack Obama
Education: A.B., Princeton University; M.Phil, Worcester College, Oxford; J.D., Harvard Law School
Religious Affiliation: Marlboro Reds Jewish
Style of Jurisprudence: Liberal Populist (in that her writing is readable to laymen)
Claim to Fame: Probably the best ill-advised Supreme Court nominee in history, Justice Kagan served as Solicitor General in the Obama Administration – the first time she argued in court was in her capacity as SG. However, because of this, Justice Kagan is considered to be conflicted out of a number of cases. She recused herself from Fisher this term and the SB1070 case from last term, but did not do so for NFIB. This, kids, is why you never nominate a sitting Solicitor General.
Famous Opinions: American Express Co. v. Italian Colors Restaurant, 570 U.S. ___ (2013) (dissenting). Another in the line of SCOTUS cases loving over class action plaintiffs in arbitration, Justice Kagan’s dissent is as notable for its readability as its vociferous advocacy for plaintiffs against repeat player institutional defendants. It’s a good one, read it.

GOOD SOURCES
http://www.scotusblog.com – probably the best source out there, also compiles stats for the terms.
http://www.oyez.org/ - recordings of oral argument.

BAD SOURCES
http://www.cnn.com

The Warszawa fucked around with this message at Apr 23, 2014 around 05:57

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Teddybear
May 16, 2009

The Corgiest Teddybear



I can also add one interesting thing about Breyer; he spoke at my law school last semester and was an extraordinarily entertaining and funny speaker. It's a bit of a shame that he's not more prominent but he's a pretty alright justice.

The Warszawa
Jun 6, 2005

Say my name.


Thomas is incredibly talkative and gregarious in person, also, though I think that's more common knowledge now. Sotomayor and Ginsburg are both hardcore as expected in person.

I watched Breyer and Scalia spar in oral argument for Bilski v. Kappos back in 2009 - unlike most Justices, I would say Breyer shines brightest in oral argument.

Teddybear
May 16, 2009

The Corgiest Teddybear



The Warszawa posted:

Thomas is incredibly talkative and gregarious in person, also, though I think that's more common knowledge now. Sotomayor and Ginsburg are both hardcore as expected in person.

I watched Breyer and Scalia spar in oral argument for Bilski v. Kappos back in 2009 - unlike most Justices, I would say Breyer shines brightest in oral argument.

I imagine that Scalia and Thomas would be very fun to drink with once. A second time, I'd want to fight 'em. Third time, I'd probably break down sobbing and screaming "WHY DO YOU HATE AMERICA?!"

I've been reading up on Ginsburg's pre-bench work, and I'm kinda amazed she was confirmed for the bench. She kicked a hell of a lot of rear end, arguing cases for treating gender as a suspect class and contributing greatly to 14th Amendment jurisprudence.

jeffersonlives
Jul 22, 2007

"Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."


Ginsburg spent over a decade on the DC Circuit where she developed a reputation as a moderate, and by the time she was put up for the Supreme Court nothing she argued for as an appellate attorney on the gender side was all that controversial. (Probably didn't hurt that she's one of the left's foremost Roe critics.) Also worth noting that Ginsburg and especially Breyer were largely put up for the Court on the recommendation of Orrin Hatch of all people.

The Warszawa
Jun 6, 2005

Say my name.


Correct me if I'm wrong, but wasn't Ginsburg the originator of the "not going to answer hypotheticals on law" approach to confirmation hearings?

After all the chatter around Garland for so long, I'm pretty convinced that the quality of Clinton's SCOTUS appointees was more a happy accident than deliberate.

Emanuel Collective
Jan 16, 2008



The Warszawa posted:

Correct me if I'm wrong, but wasn't Ginsburg the originator of the "not going to answer hypotheticals on law" approach to confirmation hearings?

After all the chatter around Garland for so long, I'm pretty convinced that the quality of Clinton's SCOTUS appointees was more a happy accident than deliberate.

They absolutely were. Clinton's first SCOTUS appointment process was a notorious clusterfuck. Clinton offered it to Mario Cuomo, who accepted then retracted the offer at the last second. Afterwards, Clinton weighed selecting a clown car of bad picks: his wife, judges who were friends with himself/Al Gore, a member of the Alabama Supreme Court, George Mitchell, random high-powered lawyers, and even Stephen Breyer-who interviewed Clinton while loaded with painkillers and made a bad impression. Janet Reno eventually snapped and told Clinton to appoint Ginsburg.

VitalSigns
Sep 3, 2011

I can feel you tremble when we touch...

Evilweasel, thanks for your corporate personhood effortpost in the last thread, that was helpful

Does the argument that health insurance is compensation for work done, and thus the property of the employee and not the employer? The government is fully within its rights to regulate what employment contracts are appropriate and what are not, and religion is not an excuse to flout OSHA regulations.

A company could just as well complain that the employee is spending his salary on birth control, but statute forbids paying in scrip and religious employers can't claim that the Free Exercise clause gives them the right to pay people in scrip redeemable at the company store, which sells only Bibles, bottles, baby formula, and maternity wear. Or just pay them in Bibles and food directly.

How does this not also apply to health insurance? The government can say "Money is an acceptable renumeration and scrip or Bibles are not" without paying attention to anyone's religion, so do you know if "This health insurance is acceptable compensation, and this is not" would work the same way? The company has the option to pay the cost in cash instead and let employees go to the exchanges.

The Warszawa
Jun 6, 2005

Say my name.


Emanuel Collective posted:

They absolutely were. Clinton's first SCOTUS appointment process was a notorious clusterfuck. Clinton offered it to Mario Cuomo, who accepted then retracted the offer at the last second. Afterwards, Clinton weighed selecting a clown car of bad picks: his wife, judges who were friends with himself/Al Gore, a member of the Alabama Supreme Court, George Mitchell, random high-powered lawyers, and even Stephen Breyer-who interviewed Clinton while loaded with painkillers and made a bad impression. Janet Reno eventually snapped and told Clinton to appoint Ginsburg.

Haha, I read some of this in the Stephanopoulos memoir, do you have any recommendations on the topic?

Off-thread, but Clinton's rehabilitation into the iconic Democratic president is really at odds with his actual behavior in office. Oh well, looking forward to that hagiography getting trotted out in two years.

Green Crayons
Apr 2, 2009


Because I posted it at the very end of the last thread, I'll link it again.

Professor Volokh is using this week to write about the various legal issues implicated in the upcoming Hobby Lobby cases. Apart from knowing a whole bunch about the applicable area of law (First Amendment and the Religious Freedom Restoration Act statute), I find his writing to be clear, easy to read, and enlightening on a rather dense subject area.

If you're interested in reading upon what the Hobby Lobby cases are all about from a legal perspective, I highly recommend following this series. He already has three posts up and will continue to post throughout the week:

First Post: Introduction and Run Down of the Week's Analysis
Second Post: 1A. What Is the Religious Freedom Restoration Act?
Third Post: 1B. Why Have RFRA-Like Religious Exemption Regimes?



And, of course, thanks to Warszawa for these threads.

Zeroisanumber
Oct 23, 2010

You're underestimating the power that our bloated military budget has given us.

The Warszawa posted:

Haha, I read some of this in the Stephanopoulos memoir, do you have any recommendations on the topic?

Off-thread, but Clinton's rehabilitation into the iconic Democratic president is really at odds with his actual behavior in office. Oh well, looking forward to that hagiography getting trotted out in two years.

He pulled the Democrats out of the tailspin that they'd been in since LBJ and gave them a roadmap which has seen them eat the GOP's lunch since 2006. People love a winner.

hobbesmaster
Jan 28, 2008

We are Legion, a terminal of the Geth.


Green Crayons posted:

Because I posted it at the very end of the last thread, I'll link it again.

Professor Volokh is using this week to write about the various legal issues implicated in the upcoming Hobby Lobby cases. Apart from knowing a whole bunch about the applicable area of law (First Amendment and the Religious Freedom Restoration Act statute), I find his writing to be clear, easy to read, and enlightening on a rather dense subject area.

If you're interested in reading upon what the Hobby Lobby cases are all about from a legal perspective, I highly recommend following this series. He already has three posts up and will continue to post throughout the week:

First Post: Introduction and Run Down of the Week's Analysis
Second Post: 1A. What Is the Religious Freedom Restoration Act?
Third Post: 1B. Why Have RFRA-Like Religious Exemption Regimes?



And, of course, thanks to Warszawa for these threads.

quote:

The owners of the corporations believe for religious reasons that it is wrong to use any devices or products that sufficiently risk killing a fertilized embryo, including by preventing implantation of the embryo

But birth control pills prevent ovulation, not implantation? These cases are all

TheOneAndOnlyT
Dec 18, 2005

Well well, mister fancy-pants, I hope you're wearing your matching sweater today, or you'll be cut down like the ugly tree you are.

hobbesmaster posted:

But birth control pills prevent ovulation, not implantation? These cases are all
You make it sound as though birth control opponents have any interest in the science behind birth control. Scientific proof that birth control doesn't work the way they say it does has never stopped them, because they don't care about science. The only reason they ever even bring it up is to apply a thin veneer of moral legitimacy to their opposition of women having sex when and how they want.

More on-topic: What kind of schedule is there for Hobby Lobby, if any?

Orange Devil
Sep 30, 2010

Waar is da feestje?

HIER IS DA FEESTJE!



The Warszawa posted:

Off-thread, but Clinton's rehabilitation into the iconic Democratic president is really at odds with his actual behavior in office. Oh well, looking forward to that hagiography getting trotted out in two years.

Clinton is like a counterpart to Reagan in this. Although not as bad.

hobbesmaster
Jan 28, 2008

We are Legion, a terminal of the Geth.


TheOneAndOnlyT posted:

You make it sound as though birth control opponents have any interest in the science behind birth control. Scientific proof that birth control doesn't work the way they say it does has never stopped them, because they don't care about science. The only reason they ever even bring it up is to apply a thin veneer of moral legitimacy to their opposition of women having sex when and how they want.

This is important for this case though. The FDA says the drug does X, the plaintiffs say the drug does Y and they're morally opposed to that. Thats chewbacca defense territory.

The Warszawa
Jun 6, 2005

Say my name.


Orange Devil posted:

Clinton is like a counterpart to Reagan in this. Although not as bad.

He really is, in that they both defied the current party orthodoxy and yet are held up as exemplars of it. (See, e.g., the Unholy Trinity of '96.)

Kalman
Jan 17, 2010


TheOneAndOnlyT posted:

You make it sound as though birth control opponents have any interest in the science behind birth control. Scientific proof that birth control doesn't work the way they say it does has never stopped them, because they don't care about science. The only reason they ever even bring it up is to apply a thin veneer of moral legitimacy to their opposition of women having sex when and how they want.

More on-topic: What kind of schedule is there for Hobby Lobby, if any?

Hasn't been set for argument yet. Probably will be set for April 2014.

VitalSigns
Sep 3, 2011

I can feel you tremble when we touch...

TheOneAndOnlyT posted:

You make it sound as though birth control opponents have any interest in the science behind birth control. Scientific proof that birth control doesn't work the way they say it does has never stopped them, because they don't care about science. The only reason they ever even bring it up is to apply a thin veneer of moral legitimacy to their opposition of women having sex when and how they want.

They're literally not interested in the science.

quote:

"All they're asking for is a narrow exemption from the law that says they don't have to provide drugs they believe cause abortions," Hobby Lobby attorney Kyle Duncan, a general counsel for the Becket Fund for Religious Liberty, told CNN affiliate KFOR in November. "Our basic point is the government can't put a corporation in the position of choosing between its faith and following the law."

If you take Slactivist's interpretation of that claim at face value, Hobby Lobby is asking for an exception from the mandate and from biology while they're at it. I don't know if, in any of their court filings, they have actually attempted to argue that the law violates Free Exercise by forcing them to pay for something they believe causes abortions even if it doesn't.

hobbesmaster
Jan 28, 2008

We are Legion, a terminal of the Geth.


Then, do they just want the government carte blanche to remove whatever drugs they want from their insurance's formulary?

GROVER CURES HOUSE
Aug 26, 2007

Go on...


I'm sure someone could find a stronger theological argument against covering opioids than contraceptives.

evilweasel
Aug 24, 2002


Every soup ladled to the hungry, every blanket draped over the cold signifies, in the final sense, a theft from my gigantic paycheck.

VitalSigns posted:

Does the argument that health insurance is compensation for work done, and thus the property of the employee and not the employer? The government is fully within its rights to regulate what employment contracts are appropriate and what are not, and religion is not an excuse to flout OSHA regulations.

The issue is that this isn't actually a constitutional case. The Supreme Court has already held that the 1st Amendment gives you very few rights to challenge a generally applicable law on the basis that as applied to you it violates your 1st Amendment rights. The test case was a peyote ban: the drug wasn't banned to interfere in Native American religious ceremonies and was just a general drug ban, they argued that it violated their religious freedom to ban a drug they needed for their religion, and lost.

Congress responded by passing the RFRA which essentially changes all past and future laws and regulations (at the time it included states, that part was held to be unconstitutional) to essentially create a religious exception: if a law substantially burdens a person's exercise of religion then it doesn't apply to them unless the law (1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

This works for past laws because it simply amends them to comply, and for future laws it creates a presumption they have this silent exception unless they explicitly state they don't (because any future Congress can't be bound just by a law).

So yes, the government is absolutely free to make this regulation under the Constitution. It's an issue of if they can do this under the RFRA, because Obamacare didn't exempt itself from the RFRA.

Kiwi Ghost Chips
Feb 19, 2011

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The case is only over birth control that the FDA claims may prevent implantation.

Not My Leg
Nov 6, 2002

AYN RAND AKBAR!


The Entire Universe posted:

I think the question could definitively be answered in the affirmative. A corporation certainly has been granted rights and personhood well beyond its initial form as a legal fiction embodying the business as an entity, but it does not possess its own agency and acts at the orders or direction of the board. It is effectively a bomb disposal robot or ROV in business form. The board controls it, but it is a separate entity allowing individual actions not entangling any one member outside specific circumstances. It can take action absent the presence of the controlling board, but without the board's direction it does not act.

Certain speech protections (such as public speech, advertising, redress, press) are reasonable as a corporation can be the "speaker" of certain speech, though that is just a matter of course as infringing on certain forms of speech made by a corporation is an infringement on the freedoms of the board directing it. A vote, on the other hand, is not part of the first amendment. It violates 1P-1V principles by the same token someone can't roll into the precinct with some rube goldberg device made to mark a half dozen ballots at once for the candidate of the operator's choice and say it was the specific arm of the machine doing the voting and not the driver.

Just picking this up from the last thread since it was in response to my comment about "one person one vote." I agree with The Entire Universe that giving a corporation the right to vote would violate 1P-1V. The only reason I hedged is that it's not my area and I'm not 100 percent sure what types of elections 1P-1V has been held to apply to. Obviously anything federal and I think anything that implicates the republican form of government in the states, but I'm not sure it applies to, for example, a county election for sheriff or a school board election.

VitalSigns
Sep 3, 2011

I can feel you tremble when we touch...

I understand that the RFRA makes it a trickier issue. I was just wondering whether the argument that "compensation is the property of the employee and not the employer so regulating what is acceptable compensation is not a burden on anyone's exercise within the meaning of the RFRA" is an argument anyone has used, or if legal-minded goons here think it's valid.

On the rights of corporate persons, the judge in the Conestoga Wood case does also accuse the owners of conflating their own personhood with the corporation's and shifting back and forth depending on whatever is advantageous at the moment, so it seems at least some judges agree that it's not solely a question about which corporate rights are necessary to protect individual rights.

Conestoga v. Sebelius posted:

Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. All responsibility for complying with the mandate falls on Conestoga. Conestoga "is a closely-held, family-owned firm, and [we] suspect there is a natural inclination for the owners of such companies to elide the distinction between themselves and the companies they own."....But, it is Conestoga that must provide the funds to comply with the Mandate--not the Hahns....
"The fact that one person owns all of the stock does not make him and
the corporation one and the same person, nor does he thereby become the owner of all the property of the corporation." The Hahn family chose to incorporate and conduct business through Conestoga, thereby obtaining both the advantages and
disadvantages of the corporate form. We simply cannot ignore the distinction between Conestoga and the Hahns. We hold--contrary to Townley and Stormans--that the free exercise claims of a company's owners cannot "pass through" to the corporation.

e: better quote

VitalSigns fucked around with this message at Dec 2, 2013 around 20:20

euphronius
Feb 18, 2009



Not My Leg posted:

Just picking this up from the last thread since it was in response to my comment about "one person one vote." I agree with The Entire Universe that giving a corporation the right to vote would violate 1P-1V. The only reason I hedged is that it's not my area and I'm not 100 percent sure what types of elections 1P-1V has been held to apply to. Obviously anything federal and I think anything that implicates the republican form of government in the states, but I'm not sure it applies to, for example, a county election for sheriff or a school board election.

Here is the case you want http://en.wikipedia.org/wiki/Board_..._York_v._Morris

This applies 1P1V to a local government election.

LeftistMuslimObama
Jan 6, 2012

GOD DAMMIT RICKIE

hobbesmaster posted:

Then, do they just want the government carte blanche to remove whatever drugs they want from their insurance's formulary?

This triggered a thought for me:
The reason birth control is mandatory under Obamacare is that it's really expensive to deliver a baby, and then provide healthcare to that baby. If women have no access to birth control, their general premiums are going to be way loving higher because they're more likely to have expensive babies.
If the SCOTUS finds that "religious corporations" are allowed to ban birth control, can a law be passed that requires them to cover any increase in premiums and OOP costs caused by removal of birth control from the health plan? Kinda like requiring them to pay into workman's comp for pregnancy? Since it's their religious duty to make their employees healthcare more expensive by not providing birth control, isn't it also their religious duty to pay for the associated costs of forcing their employees to have babies?

Mo_Steel
Mar 7, 2008

"We don't need a toilet. The pile of clothes in the hallway has worked fine for us for years, and it will continue to work."

Green Crayons posted:

Because I posted it at the very end of the last thread, I'll link it again.

Professor Volokh is using this week to write about the various legal issues implicated in the upcoming Hobby Lobby cases. Apart from knowing a whole bunch about the applicable area of law (First Amendment and the Religious Freedom Restoration Act statute), I find his writing to be clear, easy to read, and enlightening on a rather dense subject area.

If you're interested in reading upon what the Hobby Lobby cases are all about from a legal perspective, I highly recommend following this series. He already has three posts up and will continue to post throughout the week:

First Post: Introduction and Run Down of the Week's Analysis
Second Post: 1A. What Is the Religious Freedom Restoration Act?
Third Post: 1B. Why Have RFRA-Like Religious Exemption Regimes?



And, of course, thanks to Warszawa for these threads.

Awesome, thank you very much for these; Hobby is expected to go before the court by next summer, correct?

Also, the OP was missing an important image:

The Warszawa
Jun 6, 2005

Say my name.


Fixed.

Hobby Lobby will be argued probably by April would be my extremely broad guess, and not decided until the last month of term.

VitalSigns
Sep 3, 2011

I can feel you tremble when we touch...

That OP has more Game of Thrones references than my last D&D session.

Request that you compare Clarence Thomas to Eddard Stark.

The Warszawa
Jun 6, 2005

Say my name.


I mean if any phrase describes the Supreme Court, it'd be "an incestuous, ultraviolent fuckfest full of archaic gender and racial politics and also bizarre ideas on how language should work."

Also, Thomas is clearly Jaime Lannister. There are no men like him, there's only him.

evilweasel
Aug 24, 2002


Every soup ladled to the hungry, every blanket draped over the cold signifies, in the final sense, a theft from my gigantic paycheck.

The Warszawa posted:

I mean if any phrase describes the Supreme Court, it'd be "an incestuous, ultraviolent fuckfest full of archaic gender and racial politics and also bizarre ideas on how language should work."

Also, Thomas is clearly Jaime Lannister. There are no men like him, there's only him.

Souter clearly was Jaime Lannister, both the conversion from evil to good and the apparent lack of interest in women not related to him.

VitalSigns
Sep 3, 2011

I can feel you tremble when we touch...

The Warszawa posted:

I mean if any phrase describes the Supreme Court, it'd be "an incestuous, ultraviolent fuckfest full of archaic gender and racial politics and also bizarre ideas on how language should work."

Also, Thomas is clearly Jaime Lannister. There are no men like him, there's only him.

Oh come on: so wedded to notions of ancient tradition that he inadvertently allows the downfall of his own people when adherence to a rigid but outdated personal code gave unscrupulous enemies the opportunity to turn it against those he strived to protect, and subjugate them.

Paul MaudDib
May 2, 2006

My name is a killing word.


The US Supreme Court has declined to hear an appeal from Amazon and Overstock. The question is whether those companies have nexus in NY state for the purposes of sales tax collection.

quote:

Seattle-based Amazon has no offices, distribution centers or workforce in New York. But the New York Court of Appeals said Amazon’s relationship with third-party affiliates in the state that receive commissions for sending Web traffic its way satisfied the “substantial nexus” necessary to force the company to collect taxes.

It has been 20 years since the Supreme Court ruled in Quill v. North Dakota that a state’s efforts to require tax collections from out-of-state companies violated the Commerce Clause of the Constitution. It said the necessary “substantial nexus” exists when the out-of-state retailer has a “physical presence” in the state.

But that decision came before a revolution in online shopping, and the New York court said the old test may now be outdated.

“An entity may now have a profound impact upon a foreign jurisdiction solely through its virtual projection via the Internet,” the court ruled.

To underscore the judicial conflict over the issue, Illinois’ top court last month struck down its state law, which was modeled after New York’s, but for different legal reasoning.

I don't really see the logic here. Affiliate referrers aren't getting W2's, they're basically being paid to drive traffic to the site. If you purchased Google AdSense ads to target specific products to specific interested consumers and Google had nexus in a state, would you logically have nexus as well? It seems to broaden to concept of "nexus" to "anywhere you do business, and anywhere your partners do business".

Paul MaudDib fucked around with this message at Dec 2, 2013 around 21:12

euphronius
Feb 18, 2009



That seems like a pretty strong nexus, to be honest. They are "mailing checks" to NY to their contractors or associates for work done in the state.

Zeroisanumber
Oct 23, 2010

You're underestimating the power that our bloated military budget has given us.

The Warszawa posted:

Fixed.

Hobby Lobby will be argued probably by April would be my extremely broad guess, and not decided until the last month of term.

I know that the Roberts Court is batshit, but a Hobby Lobby decision upholding the contraceptive mandate is a pretty sure thing, isn't it? We've barely touched on the can of worms that striking it down would open, and SCOTUS has to be aware of that, right? Right???

evilweasel
Aug 24, 2002


Every soup ladled to the hungry, every blanket draped over the cold signifies, in the final sense, a theft from my gigantic paycheck.

Zeroisanumber posted:

I know that the Roberts Court is batshit, but a Hobby Lobby decision upholding the contraceptive mandate is a pretty sure thing, isn't it? We've barely touched on the can of worms that striking it down would open, and SCOTUS has to be aware of that, right? Right???

You need to figure out which one of the five conservatives are going to vote to uphold the mandate. Remember, Kennedy isn't really a swing vote on Obamacare, he was leading the charge to overturn the entire law. It's certainly not a sure thing.

The Warszawa
Jun 6, 2005

Say my name.


I can't see any of the NFIB Four voting to uphold this mandate and I feel like Roberts is going to swing with them this time, that infinite fucker - I don't see him siding against the nebulous soundbyte of "religious freedom." Then again, my analysis may be clouded by my complete and utter hatred of him.

falcon2424
May 2, 2005



(Quoting from the previous thread)

evilweasel posted:

What Volokh is suggesting here is that it makes sense to treat a corporation as having religious rights in order to protect the individual religious rights of their owners. I disagree for many reasons but his argument isn't contradictory: I accept the premise that you look at if a corporation should have rights by looking at how that legal fiction protects individual rights. I just reach a different conclusion on that policy ground, as well as the seperate objection that we're dealing with a law here, and there's no basis in the law to distinguish the rights of a closely held corporation from any other so the clear absurdity of Wal-Mart having religious rights voids Hobby Lobby's claim to have them.

Is the Wal-Mart possibility that absurd?

I could imagine a ruling that borrows from Citizens United and basically says that the first amendment protects associations of individuals as much as it protects individuals. If some majority of Wal-Mart shareholders said that they support belief X, it seems like their association could also 'believe' X.

It'd be weird to say that corporations can have political opinions, but not religious ones.

I think we might be more likely to see a tax-protest argument. Quakers object to war. They feel that they have a religious obligation to not-fund war. But they still have to pay taxes, and can't pay into a special "everything but war" fund. ( http://caselaw.findlaw.com/us-3rd-circuit/1441988.html )

quote:

Our approach to this particular form of tax challenge under RFRA is consistent with that of the Ninth Circuit Court of Appeals, the only other circuit court to have wrestled with this issue in a similar factual context.   In Goehring v. Brophy, a group of college students challenged the collection of student fees under RFRA, as those fees subsidized a health insurance plan that covered abortion services.  94 F.3d 1294, 1297 (9th Cir.1996), cert. denied, 520 U.S. 1156, 117 S.Ct. 1335, 137 L.Ed.2d 495 (1997), overruled by 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624.   In analyzing the “least restrictive means” prong of the RFRA test, the court analogized the challenge to university funding to that of free exercise challenges to the government's use of tax dollars.   See id. at 1300.   The court then looked to Lee as its guide, and found that the fiscal vitality of the university fee system would be undermined if the plaintiffs were exempted from paying their fees on free exercise grounds, as mandatory participation was necessary to ensure the survival of the student health insurance program.

The owners don't have an individual right to avoid paying into a fund that (partially) supports war/abortion. So they can't have that right collectively.

E: Of course, if the court does side with Hobby Lobby, it'll be interesting to see what other mandatory-payments suddenly become opt-out.

Zeroisanumber
Oct 23, 2010

You're underestimating the power that our bloated military budget has given us.

The Warszawa posted:

I can't see any of the NFIB Four voting to uphold this mandate and I feel like Roberts is going to swing with them this time, that infinite fucker - I don't see him siding against the nebulous soundbyte of "religious freedom." Then again, my analysis may be clouded by my complete and utter hatred of him.

We're going to be cleaning up after this court for a very long time. Maybe all five of the conservatives will split an order of salmon mousse and give us a chance to create something decent.

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twodot
Aug 7, 2005
..

falcon2424 posted:

I think we might be more likely to see a tax-protest argument. Quakers object to war. They feel that they have a religious obligation to not-fund war. But they still have to pay taxes, and can't pay into a special "everything but war" fund. ( http://caselaw.findlaw.com/us-3rd-circuit/1441988.html )


The owners don't have an individual right to avoid paying into a fund that (partially) supports war/abortion. So they can't have that right collectively.

E: Of course, if the court does side with Hobby Lobby, it'll be interesting to see what other mandatory-payments suddenly become opt-out.
I don't think taxes are a good analogy, taxes and mandated insurance are different things, and whether they pass the various tests in the RFRA are not necessarily related. I think the government has a tricky argument primarily because ACA has numerous exemptions, making providing contraceptive insurance not clearly a compelling interest (we might agree the public health is a compelling interest, but the actions of the government suggest it does not), especially since Hobby Lobby isn't seeking to avoid providing all contraceptive, just some specific ones. If the tax code had as many arbitrary (and similar) exemptions, I think the Quakers' argument would become interesting.

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