SCOTUS - The Good, The Bad, and The Ugly

[LFC]

This case is more of an idea of how right-wing SCOTUS's minds work rather than a major decision on the face of it. Kagan saw through it, though. The very short version is that right-wing SCOTUS would allow the use of proxies to circumvent laws. In this case it had to do with kidney dialysis patients.

Federal law also provides that a private health plan “may not differentiate in the benefits it provides between individuals having end stage renal disease and other individuals covered by such plan on the basis of the existence of end stage renal disease, the need for renal dialysis, or in any other manner.” The idea is to prevent private plans from offering such skimpy coverage of renal care that Medicare winds up picking up all the costs of dialysis.

Nevertheless, in Marietta, an employer-provided health plan provided “relatively limited reimbursement rates” to dialysis providers, in alleged violation of the law prohibiting private plans from discriminating against individuals with end-stage renal disease. Justice Brett Kavanaugh’s opinion for the Court reads the federal statute narrowly, holding that so long as a health plan provides “the same dialysis benefits regardless of whether an individual has end-stage renal disease,” it does not run afoul of federal law.

The problem with this holding, as Kagan explains in dissent, is that “outpatient dialysis is an almost perfect proxy for end stage renal disease.” According to Kagan, 97 percent “of people diagnosed with end stage renal disease—all those who do not obtain a preemptive kidney transplant—undergo dialysis.” And as many as 99.5 percent of “outpatient dialysis patients have or develop end stage renal disease.”

So if an insurer refuses to cover dialysis, it is effectively denying coverage to end-stage renal patients.

But homosexual acts could just as easily be used as a proxy that supposedly doesn't discriminate against homosexuals.

That brings us to why this decision could have severe implications for LGBTQ Americans. The Supreme Court has long held that laws that target “homosexual conduct” are themselves a form of anti-LGBTQ discrimination. That is, a state cannot get around laws prohibiting anti-LGBTQ discrimination by targeting sexual activity associated with same-sex attraction.

Just as needing dialysis is an “almost perfect proxy” for identifying people with end-stage renal disease, same-sex sexual activity is a strong proxy for identifying people who are gay or bisexual. Thus, if the logic of Marietta is applied to laws prohibiting LGBTQ discrimination — that is, if governments, employers, and other institutions that may wish to discriminate on the basis of sexual orientation are allowed to target activity that is closely associated with being gay or bisexual — those laws could become meaningless.

[goldenvalley]

I might be wrong but doesn't Medicare eventually cover all dialysis patients after about 4 months?  This would be end stage kidney disease...

[LFC]

Jun 22, 2022 18:30:29 GMT goldenvalley said:

I might be wrong but doesn't Medicare eventually cover all dialysis patients after about 4 months?  This would be end stage kidney disease...

Check the article. The whole point to the law was to prevent health insurance companies from foisting the cost of dialysis for all late stage kidney disease patients onto the government all the time. Think of it as trying to head off where the federal flood insurance program ended up, with insurers pushing a big chunk of risk onto the federal gov't.

I'm reading the decision (and I could be off) as insurers can now under-insure for dialysis as long as they under-insure everybody equally, both those with late stage kidney disease (97% of dialysis patients) and ... well, some theoretical other group. Kagan's entire point is that this opens up a path to skirt the obvious intent of laws by coming up with an effective proxy. I have no doubt that's the intent for right-wing partisan hack SCOTUS.

[LFC]

I can hardly wait until right-wing partisan hack SCOTUS strikes down laws concerning open, at will carrying of a firearm.

In a majority opinion authored by Justice Clarence Thomas, the Supreme Court has cleared the way for even looser gun laws as the nation continues to reel from near-daily mass shootings that have claimed 312 lives in 2022 alone.

Thomas, a President George H. W. Bush nominee, wrote in the 6-3 decision that the Second Amendment protects the right of individuals to carry a gun outside the home. The court struck down New York’s “proper-cause” requirement to obtain a concealed-carry license, saying it “violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.”

In concurring, Justice Samuel Alito wrote, “The police cannot disarm every person who acquires a gun for use in criminal activity; nor can they provide bodyguard protection for the State’s nearly 20 million residents or the 8.8 million people who live in New York City. Some of these people live in high-crime neighborhoods. Some must traverse dark and dangerous streets in order to reach their homes after work or other evening activities. Some are members of groups whose members feel especially vulnerable. And some of these people reasonably believe that unless they can brandish or, if necessary, use a handgun in the case of attack, they may be murdered, raped, or suffer some other serious injury.”

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented. “Consider, too, interactions with police officers,” Breyer wrote. “The presence of a gun in the hands of a civilian poses a risk to both officers and civilians.”

Breyer pointed out that laws regulating “the public carriage of weapons” in England date back to the 13th century, and existed in North America since “before the founding.”

“Similar laws remained on the books through the ratifications of the Second and Fourteenth Amendments through to the present day,” Breyer wrote. “Many of those historical regulations imposed significantly stricter restrictions on public carriage than New York’s licensing requirements do today.”

Speaking to reporters after the ruling was handed down, New York Gov. Kathy Hochul vowed to hold the line on gun safety.

“We are not powerless to respond to this,” she said.

[jackd]

Justice Thomas is advancing in his campaign to unseat Justice Scalia as most destructive Justice of modern times.

[LFC]

Jun 23, 2022 18:34:23 GMT jackd said:

Justice Thomas is advancing in his campaign to unseat Justice Scalia as most destructive Justice of modern times.

He may have more time at it but I think Alito has been outpacing him by far since they got their 6-3 mandate to destroy much of the past century's judicial record. I suspect that when all is said and done Alito will have caused more destruction simply because he could.

EDIT: Right after I posted this I took at look at TPM. Alito isn't just destructive, he's a preening, self-important asshole. He sounds more like an emotional child than "sober as a judge."

[LFC]

At every turn the judicial chops of partisan hack SCOTUS seem to get called on the carpet. They simply make shit up to support their predetermined point of view, ignore all evidence to the contrary, and expound on it like it's judicial wisdom rather than rank ideology. To be blunt they seem to barely be trying, maybe because the only way to get to where they watn to be is by simply creating a whole new world of alternative judicial facts.

Justice Clarence Thomas, writing for the majority, slapped down New York’s 100-year-old concealed carry licensing scheme Thursday on the grounds that it has no historical analogue.

Government interest — like protecting the safety of its citizens — is not enough to get around the all-expansive Second Amendment, he writes. To be legitimate, a gun regulation must have a historical cousin.

The notion is farcical on its face: there must be some 18th or 19th century law mirroring any modern-day gun regulation, even for weapons that the people of that time could not have imagined existing?

It rings similar to Justice Samuel Alito’s draft opinion overturning abortion rights, which roots much of its argument in cases where abortion access was not protected in the country’s earliest days, and before. He asks readers to unflinchingly accept that a constitutional right for women is only valid if it existed in a time when women were considered much less than full citizens.

Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, focuses his dissent on the patent ludicrousness of determining constitutional rights solely through historical precedents.

“Will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?” he ponders, before sketching out his argument that his conservative colleagues have done just that.

Breyer lays out his own list of cases ranging from English precursors to early American laws all the way up through U.S. law in the 20th century. He lists cases that he argues support New York’s licensing scheme, many of which the conservative majority found some reason to reject: “too old,” “too recent,” “did not last long enough,” “applied to too few people,” “enacted for the wrong reasons,” “based on a constitutional rationale that is now impossible to identify,” “not sufficiently analogous,” Breyer reels off.

“At best, the numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history’s crowd,” he writes. “At worst, they create a one-way ratchet that will disqualify virtually any ‘representative historical analogue’ and make it nearly impossible to sustain common-sense regulations necessary to our Nation’s safety and security.”

Besides the easy ability for judges to cherry-pick historical cases that help their argument and dismiss those that don’t, Breyer points out the practical implications of such an approach to law.

Judges, and their staff, he points out, are trained in law, not in history.

“Lower courts — especially district courts — typically have fewer research resources, less assistance from amici historians, and higher caseloads than we do,” he points out. “They are therefore ill equipped to conduct the type of searching historical surveys that the Court’s approach requires.”

[jackd]

As a correspondent commented, it'll take a century to unwind all this.

[LFC]

Jun 23, 2022 21:47:42 GMT jackd said:

As a correspondent commented, it'll take a century to unwind all this.

Which has been, of course, the GOP's goal since the 90s.

[pg]

Folks- I trust in your research. But it appears that Roe v Wade has been overturned. WTF?

[pnwguy]

Jun 24, 2022 14:51:57 GMT pg said:

Folks- I trust in your research. But it appears that Roe v Wade has been overturned. WTF?

Gilead, here we come! Hosanna to Trump in the highest!

Sign up now for the Uterus Police Force, and get period reports for all the women in your neighborhood. The GOP can start sending out pregnancy tests by the millions, and you can demand any woman pee on a stick at any time, if you are suspicious. The government can demand bed rest for any pregnant women, and they should be terminated from employment (unless they have excess melanin).

Behold the Kingdom of God in Trump has arrived!

[LFC]

Thomas laid out the roadmap to tear a host of rights to shreds that he and the rest of the religious freaks dislike. American theocracy, here we come.

It’s been rather tidy to encapsulate conservative opposition to Roe as one decision gone way too far that marks a fork in the road of modern jurisprudence.

But Justice Thomas’ concurring opinion in Dobbs today makes clear that the true fork in the road for diehards came at least a decade before Roe, with a series of substantive due process cases that protected the rights to contraception and private sex acts and extended all the way to 2015 with the right to same-sex marriage.

The entire line of substantive due process cases is now under attack. Or as Thomas puts it, what he calls the “legal fiction” of substantive due process is “particularly dangerous” and he favors “jettisoning the doctrine entirely.”

How explicit is Thomas? Very.

For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [sodomy], and Obergefell [same sex marriage]. Because any substantive due process decision is “demonstrably erroneous,” we have a duty to “correct the error” established in those precedents.

Thomas notably omits Loving (interracial marriage) from his analysis. In his own concurrence, Kavanaugh highlights Loving and other important substantive due process in assuring the public that today’s majority decision in Dobbs leaves them untouched. “I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents,” Kavanaugh wrote.

Oh, he dodged the one case that could impact him directly. Gee, how convenient.

[jackd]

Yes, avoiding Loving is the height of hypocrisy.

[LFC]

Once he provides zero benefit to Democrats (which is pretty close already) I hope Manchin just curls up and dies a miserable death. He's the Dems' Susan Collins, a complete piece of spineless shit who loves to expound on his "shock" over the predictable consequences of his actions.

Manchin Shocked He Was Duped By Gorsuch And Kavanaugh About Roe Beliefs

Sen. Joe Manchin (D-WV), the only Democratic senator who voted to confirm both Neil Gorsuch and Brett Kavanaugh and who apparently believed the two conservative judges when they claimed to believe that Roe was settled legal precedent, had this to say about the betrayal, per CNN:

“I trusted Justice Gorsuch and Justice Kavanaugh when they testified under oath that they also believed Roe v. Wade was settled legal precedent and I am alarmed they chose to reject the stability the ruling has provided for two generations of Americans.”

[LFC]

More on how the non-partisan hack wing of SCOTUS warns us about partisan hack SCOTUS. Bonus partisan hack point to Sam Alito for talking about "fetal personhood" in his decision, a concept that is not in the Constitution and was not universally accepted in the 18th century. Behold the true meaning of "originalism" which is simply "we have an original way to justify the results we want."

The idea that the country will peaceably settle into a patchwork of anti-abortion states comfortably side-by-side with those protecting access is folly, they argue. Anti-abortion activists have always aimed to ban the procedure everywhere — and this decision only opens the floodgates for them to do so.

“Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest,” they write.

Indeed, Justice Samuel Alito, writing for the majority, permeated his writing with support for fetal personhood, the banner under which anti-abortion activists argue that the procedure should be outlawed.

In the meantime, they predict, “interstate restrictions will also soon be in the offing.” A state legislator in Missouri already introduced a bill that would criminalize traveling elsewhere to obtain an abortion, and more are sure to follow. Blue states are responding by shoring up their laws to protect the obtaining and performing of abortions within their borders, setting up what the three justices call “interjurisdictional abortion wars” where there is very little precedent and history on which to rely.

The dissent is clear-eyed in what Friday’s historic decision means for the country: a whole flotilla of constitutional rights associated with bodily autonomy and privacy in personal relationships under threat — and in the meantime, women being forced to carry to term pregnancies that result from rape or incest, or that threaten their lives, or that they simply don’t want.

“Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat,” the justices write. “It is one or the other.”

[LFC]

Roberts went full metal Susan Collins as he tried to dodge his complicity in the destruction of Roe. Clearly he is concerned about his own reputation in history.

Chief Justice John Roberts doesn’t agree with overturning abortion rights — but don’t look for his name among the dissenters.

In a mealy-mouthed concurrence, he bemoans that the Court didn’t just nix the viability line, but went all the way on abortion rights. Not because he disagrees with the content of the decision — he calls it “thoughtful and thorough” — but because, he says, demolishing Roe unnecessary to decide the case centered on a 15-week abortion ban out of Mississippi.

“Here, there is a clear path to deciding this case correctly without overruling Roe all the way down to the studs: recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all,” he writes.

Roberts’ preference is clear: get rid of the viability line, which he spends many paragraphs attacking. Then, perhaps when a little time has passed, curtail abortion in some other ways.

Abortion rights groups have wondered since the Court became so right-wing whether the justices would overturn abortion rights outright, or do it in 1,000 cuts so as to staunch the backlash. Roberts, the great institutionalist, clearly would have preferred the latter.

Why not slice away at women’s rights just a little bit? he asks.

“The law at issue allows abortions up through fifteen weeks, providing an adequate opportunity to exercise the right Roe protects,” he writes. “By the time a pregnant woman has reached that point, her pregnancy is well into the second trimester. Pregnancy tests are now inexpensive and accurate, and a woman ordinarily discovers she is pregnant by six weeks of gestation.”

He took the same tone during oral arguments, fixating on whether the viability line made sense, while his conservative peers took no pains to hide their intent to nullify abortion rights completely.

It’s another sign of Roberts’ loss of control over the Court. Chief in name, he has little power to rein in the other right-wing judges, who seem unconcerned about the Court’s plummeting legitimacy or the dangers of willfully ripping up precedents.

[jackd]

Roberts' reputation was was already shot with the destruction of the Voting Rights Act with non existent factual evidence not in the record, Citizens United.and Hobby Lobby. He calls balls and strikes but the fix is in.

[LFC]

Jun 24, 2022 16:19:47 GMT LFC said:

Once he provides zero benefit to Democrats (which is pretty close already) I hope Manchin just curls up and dies a miserable death. He's the Dems' Susan Collins, a complete piece of spineless shit who loves to expound on his "shock" over the predictable consequences of his actions.

Manchin Shocked He Was Duped By Gorsuch And Kavanaugh About Roe Beliefs

Sen. Joe Manchin (D-WV), the only Democratic senator who voted to confirm both Neil Gorsuch and Brett Kavanaugh and who apparently believed the two conservative judges when they claimed to believe that Roe was settled legal precedent, had this to say about the betrayal, per CNN:

“I trusted Justice Gorsuch and Justice Kavanaugh when they testified under oath that they also believed Roe v. Wade was settled legal precedent and I am alarmed they chose to reject the stability the ruling has provided for two generations of Americans.”

And right on cue the human Gumby Susan Collins pulls out the same self-serving whine. Gawd, it's bad enough that you approved of these people. Now just shut up about your awful deeds and stop playing the victim.

Sen. Susan Collins (R-ME) agrees with Sen. Joe Manchin: They’ve been duped. In a statement Friday following the explosive decision to overturn Roe v. Wade, she denounced what she called a “sudden and radical jolt” to the country. Collins, who voted yes on nominations for Justices Brett Kavanaugh and Neil Gorsuch wrote that the pair had backtracked on what they said during their confirmation hearings and during closed-door meetings with Collins. “This decision is inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me, where they both were insistent on the importance of supporting long-standing precedents that the country has relied upon,” she said. Manchin (D-WV) similarly said Friday that the justices had been dishonest when discussing stance on Roe in the Supreme Court nomination process. “Throwing out a precedent overnight that the country has relied upon for half a century is not conservative,” Collins wrote.

Hey, Suzie. Go f*** yourself. You were warned, you were either a stooge or lying (or both), so now live with what you did.

[LFC]

Right-wing SCOTUS decided 6-3 that if a police officer completely abuses your Miranda rights, performs and illegal interrogation, threatens you with a gun and deportation, and extracts a false confession but you're found to be not guilty, you can't sue them. Jack-booted police get more protection. This is the very same brand of protection of authority over individuals that Roberts and Alito showed well before they were on the Supreme Court.

Today, in Vega v. Tekoh, the court backtracked substantially on its Miranda promise. In Vega, the court held 6-3 (over an excellent dissent by Justice Elena Kagan) that an individual who is denied Miranda warnings and whose compelled statements are introduced against them in a criminal trial cannot sue the police officer who violated their rights, even where a criminal jury finds them not guilty of any crime. By denying people whose rights are violated the ability to seek redress under our country’s most important civil rights statute, the court has further widened the gap between the guarantees found in the Bill of Rights and the people’s ability to hold government officials accountable for violating them.

Last April, the ACLU and the Cato Institute filed an amicus brief in support of Terence Tekoh, who had been subjected to an illegal interrogation. At trial, Tekoh testified that he was simply doing his job as a Certified Nursing Assistant when Carlos Vega, a Los Angeles County Sheriff’s Deputy, isolated him in a small, windowless room and refused others’ entry. Vega then proceeded to interrogate Tekoh, alleging that he had molested a patient while transporting her. Vega threatened Tekoh with violence, flashing his gun. He threatened Tekoh, an immigrant, that he and his family members would face deportation to the country they had fled in fear of persecution, and called him a racial slur.

Again, according to Tekoh, Vega would not permit him to leave the room, and ignored Tekoh’s pleas to see a lawyer or talk to his coworkers and supervisors. Tekoh ultimately extracted a false letter of apology from Vega that he dictated to him.

These facts are shocking — and the ACLU’s brief urged the Supreme Court to hold that, at least where an officer so blatantly violates an individual’s Miranda rights and the statements are introduced in a criminal trial, the officer can be sued under federal law. But the court’s decision today says that these facts, or any others, don’t matter at all. Even though the court has previously said that the introduction of an un-Mirandized statement at trial is a constitutional violation, in Vega it has announced that a Miranda violation is not a violation of a constitutional right, but only of a prophylactic constitutional rule that does not give rise to damages — no matter what.

[pnwguy]

www.theatlantic.com/ideas/archive/2022/06/roe-overturned-supreme-court-samuel-alito-opinion/661386/

In his concurrence in that case, Alito sneered, “How does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.” The logic of the assertion suggests that laws against murder are useless because murderers continue to exist; it is a quality of reasoning that might come from a fifth grader. The argument is also not in any sense a legal one, just a paraphrase of culture-war blather one hears in right-wing media—which are a much more significant influence on the majority than the law or the Constitution is. Clearly, Alito does not believe laws against abortion to be similarly pointless, even though abortions will continue regardless.

[AnBr]

Dark times ahead.

[Bact PhD]

From the Serwer piece:

…the current majority’s approach is itself a kind of undead constitutionalism—one in which the dictates of the Constitution retrospectively shift with whatever Fox News happens to be furious about. Legal outcomes preferred by today’s American right conveniently turn out to be what the Founding Fathers wanted all along.

Reminds me of those of a certain religious stripe who screech about how “God Hates —“, and it just happens to be the same thing or things that they themselves hate.

[indy]

There's an old quote I remember: If you torture the data long enough, Nature will confess to anything.

There are at least two corollaries.

If you torture the Bible long enough, God will confess to anything.
If you torture the Constitution long enough, the founding fathers will confess to anything.

[AnBr]

"The Constitution Is Whatever the Right Wing Says It Is"

The Supreme Court majority’s undead constitutionalism is transforming right-wing media tropes into law.

The Supreme Court’s decision overturning Roe v. Wade, allowing state governments to force women to give birth, is the result of decades of right-wing political advocacy, organizing, and electoral victory. It is also just the beginning of the Court’s mission to reshape all of American society according to conservative demands, without fear of public opposition.

Justice Samuel Alito’s opinion in Dobbs v. Jackson contains a classic Alito disclaimer—an explicit denial of the logical implications of his stated position. In this case, Alito declares that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” even as he argues that when it comes to rights “not mentioned in the Constitution,” only those “deeply rooted in this Nation’s history and tradition” are protected. If you’re asking yourself who decides which rights can be so described, you’re on the right track.

This will not end with the determination, as the dissenters write, that states may decide that “from the very moment of fertilization, a woman has no rights to speak of.” The conservative movement’s control of the Supreme Court, its success in skewing the electoral process through voting restrictions and gerrymandering, and the Democrats’ likely collapse in the coming midterms have bolstered Republicans’ confidence that they can drastically reshape American society on their terms without losing power.

[LFC]

Jun 26, 2022 23:25:44 GMT AnBr said:

Justice Samuel Alito’s opinion in Dobbs v. Jackson contains a classic Alito disclaimer—an explicit denial of the logical implications of his stated position. In this case, Alito declares that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” even as he argues that when it comes to rights “not mentioned in the Constitution,” only those “deeply rooted in this Nation’s history and tradition” are protected. If you’re asking yourself who decides which rights can be so described, you’re on the right track.

Remember how Scalia said Bush v Gore shouldn't be used as a precedent for any other case? Alito is brimming with the same brand of judicial dishonesty.