[mastax]

It seems likely to me the ruling took this long because John Roberts wanted to get a more unanimous ruling.

Additionally, the law in this case isn’t ill defined whatsoever. Alito, Thomas, and to a lesser extent Kavanaugh are just partisan hacks. For many years I wanted to believe they had a consistent and defensible legal viewpoint, even if I thought it was misguided. However the past six years have destroyed that notion. They’re barely even trying to justify themselves in most of these rulings; and via the shadow docket frequently deny us even that barest explanation.

[pdpi]

> For many years I wanted to believe they had a consistent and defensible legal viewpoint, even if I thought it was misguided.

Watching from across the Atlantic, I was always fascinated by Scalia's opinions (especially his dissents). I usually vehemently disagreed with him on principle (and I do believe his opinions were principled), but I often found myself conceding to his points, from a "what is and what should be are different things" angle.

[Nicook]

Scalia wrote some really interesting opinions for sure. Feel like the arguments are only going to get worse :(

[tialaramex]

Because in practice the US Supreme Court is a partisan body, the United States is deprived of the potential for excellent jurists you'd expect with a population of hundreds of millions and some of the world's best law schools. Only a subset of your best will exhibit the desired partisan skew.

Despite the larger population and improved access, my guess is that the quality of Supreme Court Justices today is probably worse than in 1927 when it decided Buck v Bell (which says it's fine for states to have a policy where they sterilize "unfit" citizens, straight up Eugenics)

[0xDEAFBEAD]

How would you suggest selecting jurists in a way that doesn't introduce partisan incentives?

[roryirvine]

It would be worth looking at how other countries with comparable legal systems do it.

Eg., members of the Supreme Court of the UK are appointed by the King on the advice of the Prime Minister. The Prime Minister is required by law to recommend the person nominated by an independent commission.

The selection must be made on merit, in accordance with the qualification criteria of section 25 of the Act, of someone not a member of the commission, ensuring that the judges will have between them knowledge and experience of all three of the UK's distinct legal systems, having regard to any guidance given by the Lord Chancellor, and of one person only.

https://en.wikipedia.org/wiki/Justice_of_the_Supreme_Court_o...

This seems to work fairly well and, although specific decisions are argued over as part of normal political discourse, it is generally seen as being non-partisan.

Ireland (which also has a common law legal system) has a similar setup, with the President appointing supreme court justices based on the recommendation of the government who, in turn, are advised by an independent panel. That advice is technically not legally binding, so this is in theory a less-strictly non-partisan system - but in practice it works out about the same.

[0xDEAFBEAD]

If creation of independent nonpartisan panels is so easy, why not just have such a panel govern the entire country?

Any country which struggles to appoint justices in a nonpartisan way will also struggle to assemble a panel in a nonpartisan way, I think.

[gcanyon]

It works fairly well because your PM and King aren't complete loons. At the end of the process there has to be someone making decisions, and when that person is a narcissistic 8-year-old in an 80-year-old's body, bad things are going to happen no matter how the system is written.

[tialaramex]

Given that the current system maximises partisan bias, it's actually hard to do worse.

Ideally you'd want to reform this hierarchically, but supposing we can only fix that final court, you want say a committee consisting of roughly a couple of academics who've taught this stuff, a couple of real on-the-ground attorneys who've argued before this court, a couple of retired judges from this court (if it had age limits, but today it does not) or the courts below it who've done this job, and five otherwise unconnected citizens (no specific business before any court now or expected) chosen at random the way most countries pick their juries.

That committee is to deliver a list of several people best qualified to fill any vacancies on the court which arise before the next committee does the same, if such a vacancy arises you just go down the list.

[0xDEAFBEAD]

>roughly a couple of academics who've taught this stuff, a couple of real on-the-ground attorneys who've argued before this court

How are these members of the committee chosen then? Seems like you're just moving the problem around, if choice of committee member is also subject to partisan incentives.

[Rapzid]

Amy Coney Barrett has somewhat taken up the mantel, but her legal reasoning is probably superior.

Thomas wants to pretend he's the OG originalist, but I don't think he is anywhere near Barrett's peer.

[bradleyjg]

Kavanaugh clearly isn’t in the same bucket. His votes go either way. I don’t recall seeing a single decision this administration where either Alito or Thomas wrote against a White House position. Not just in case opinions but even in an order. I don’t think we’ve seen a justice act as a stalking horse for the president in this way since Fortas.

[brendoelfrendo]

Kavanaugh votes either way, but I don't think this is out of principle... I just think he's just kind of an idiot and thinks he can write a justification for just about any of his biases without making those biases obvious. It's kind of apparent if you read his opinions; they tend to be very verbose (his dissent here is 63 pages!) without saying a whole lot, and he gets sloppy with citations, selectively citing precedent in some cases while others he simply hand-waves. Take his opinion in Noem v. Vasquez Perdomo (the "Kavanaugh stop" case): there's a reason why no one joined his concurrence.

[legitster]

Kavanaugh strikes me as principled, but in kind of a Type-A, "well, actually" sort of way where he will get pulled into rabbit holes and want to die on random textual hills.

He is all over the map, but not in a way that seems consistent or predictable.

[llbeansandrice]

His dissent in this case was basically "Don't over turn the tariffs because it will be too hard to make everyone whole" Which doesn't strike me as "principled" at all.

Wasn't it JFK who said "We choose to Not do these things bc they're kinda hard actually"? /s

[Rapzid]

That is not the thrust of his argument; he believes they were legal. I don't think we need people spreading this uninformed meme all over HN.

[dboreham]

This is nonsense, and the same nonsense as we heard in the insurrectionist ruling. Allowing fascism "Because it's inconvenient to do otherwise" is bonkers.

[malfist]

Your misbehavior is so egregious we have to reward you for it

[metalliqaz]

His reputation will be forever tarnished by "Kavanaugh stops"

[throw0101a]

That the the four sexual assault allegations (Thomas had "only" one during his nomination):

* https://en.wikipedia.org/wiki/Brett_Kavanaugh#Sexual_assault...

[ruszki]

You need to be cautious with the notion of “his votes go either way”. In Hungary, where I’m from, and a Trump kinda guy rules for 16 years, judges vote either way… but they vote against the government only when it doesn’t really matter for the ruling party. Either the government wants a scapegoat anyway why they cannot do something, or just simply nobody cares or even see the consequences. Like the propaganda newspapers are struck down routinely… but they don’t care because nobody, who they really care about, see the consequences of those. So judges can say happily that they are independent, yet they are not at all.

This fake independence works so well, that most Hungarians lie themselves that judiciary is free.

[suzzer99]

Well under that theory, this would have been a good time for Kavanaugh to go against Trump, since his vote didn't matter.

[zeroonetwothree]

Weren’t Sotomator and Jackson the same with Biden? Kagan is much more principled.

[bradleyjg]

In major case, sure. But every last emergency petition? I don’t think so.

[bonsai_spool]

> Weren’t Sotomator and Jackson the same with Biden? Kagan is much more principled

Very respectfully, there is no comparison between Trump and Biden in this respect. Indeed, the court adopted a new legal concept, the Major Questions Doctrine, to limit Biden continuing the Trump student loan forbearance.

[twoodfin]

The Major Questions Doctrine has been a thing for decades:

https://en.wikipedia.org/wiki/Major_questions_doctrine

[bonsai_spool]

> The Major Questions Doctrine has been a thing for decades:

> https://en.wikipedia.org/wiki/Major_questions_doctrine

I've read the Wikipedia page before and also reviewed it before posting, but thanks for your insightful analysis.

Care to share when it was used in the majority before the current Roberts court?

[twoodfin]

Well, at this point the Roberts court has been a thing for decades so I’m not sure what distinction you’re driving at.

[tyre]

FDA v. Brown & Williamson Tobacco Corp. is an example of the same principle without the name (afaik it wasn’t named that until later.)

Basically the FDA tried to use its powers to regulate drugs and devices to regulate nicotine (drug) via cigarettes (device.) The conservatives on the court said, in effect, “look obviously congress didn’t intend to include cigarettes as a medical device, come on.”

Then Congress passed a specific law allowing the FDA to regulate cigarettes. This is how it should work. If congress means something that’s a stretch, they should say so specifically.

[blackjack_]

Alito is one of the original proponents of the unitary executive theory (way before he was a Supreme Court justice). Everything he does should be looked at as an attempt to impose said theory and destroy America.

[anthonypasq]

its truly bizarre that anyone with this view could get approved by congress. its so antithetical to the entire american political system. just blows my mind how spineless congress as an institution has been for decades.

[judahmeek]

Repealing the 17th amendment will once again incentivize the Senate to choose Supreme Court justices who seek to strengthen federalism & decentralize power

[mastax]

I don't think that is compatible with his ruling in Biden v. Nebraska, nor some others during Biden's term.

[Andrex]

The dissent seems to be "Ignoring whether or not the President acted lawfully, it would sure create an awful big mess if we undid it. And he's gonna try again anyways, and maybe even succeed in that future attempt, creating an even bigger mess. So for these reasons, it shouldn't be undone."

Curious if others have different readings.

[jasondigitized]

When all of your decisions can be predetermined without even knowing the context of the matter you are surely a hack. It goes like this.....'Does this matter benefit Trump, corporations, rich people or evangelicals?'. Yes? Alito and Thomas will argue its lawful. Every single time.

[hinkley]

Thomas isn’t a hack, he’s a shill. And he’s not even trying to be subtle about it. He’s somebody’s bitch and he literally drives around in the toys they bought for him as compensation.

If any justice deserves to be impeached it’s him. I can’t believe they approved him in the first place. Anita Hill sends her regards.

[MaysonL]

I remember being shocked, albeit not surprised, when I read that he had quite a lot of contact with Ron de Santis.

https://americanoversight.org/email-suggests-that-supreme-co...

[dyauspitr]

But the toys are so cheap. It can’t possibly be just a matter of the money, there has to be some blackmail involved. Either that or he was always self hating.

[evan_]

Why would there need to be bribery or blackmail involved? He's ideologically aligned with the goals of the republican party.

His patrons lavish him with gifts because they don't want him to retire, not because they want a specific ruling.

[hinkley]

It’s the same thing.

Keep doing exactly what we want you to do, or the money goes to someone who will.

Which is also a message to the rest.

[Rapzid]

Then why accept them and face the embarrassment of being found out not reporting them properly?

You are correct compared to the $320k/year salary these empty nesters pull these things seem not that expensive. So why not just save up and buy them himself?

Yes, RED FLAG. Because apparently he likes nice things and spending money so much he can't seem to afford them himself or forgo the gifts and spare himself the scandal.

[hinkley]

He was gifted a motor coach worth $80,000, and that’s just one of the bigger things he can’t launder.