gattsuru
13d ago
I'd argue that if you're writing a substack that pushes entirely based on your career as a SCOTUS-barred lawyer, and you talk about success in one situation, and personal interpretations in the other situation, even if you're being absolutely honest, if you make absolutely zero distinction in writing, there's absolutely zero reason to care what you say, or take it seriously as anything but a way to talk other people into believing something you'd never do.
gattsuru
13d ago
As Trump's efforts to follow court orders to get people deported in such a way were sadly unsuccessful, it seems reasonable to treat these deportations as a permanent harm and prioritize these cases accordingly.
Okay. If that's the new rule, what day of this week do you think Dexter Taylor gets his day before SCOTUS? The courts don't have a time machine; the half-decade he's going to be stuck in jail isn't going to get undone. Will Malinowski get the other half of his skull back, or his next of kin get due compensation for watching her husband die? Or will both of these cases never get close to SCOTUS?
Ah, but those have different likelihood of success, or we think they're different types of permanent, post-hoc. Which is... at best an entirely different question from prioritization and permanence. And even many of those claims are not particularly believable. AARP didn't get punted because eh, those asylum claims are probably bunk anyway.
I think the problem with the 2nd amendment is that the text allows for a wide range of interpretations.
This has not, bluntly, stopped any Blue Tribe-favored defenses or constitutional protections, many of which have not only as much or more range in interpretation, but in many cases has been completely dependent on the most expansive interpretation to even exist in a meaningful form.
they gave Trump immunity for basically anything he did as a president.
I'd quibble with that description, but beyond that "we didn't get to try your Presidential candidate in federal court too much" is not especially compelling, and he's not 'my' guy.
I can assure you, the disappointment the gun nuts feel with the SCOTUS for not affirming the legality of semi-automatic AR15s is tiny compared to the disappointment the liberals feel over Dobbs.
That's nice, and all, but even assuming it's true, the ability of people to hack their own brains to be super-duper-ultra-disappointed doesn't actually give me any reason to care that they 'only' got fifty years of a made-up right blowing out not just laws across every state in the country, but even the interfaces of actual rights.
gattsuru
13d ago
Yep. There's a !!fun!! worse-case scenario where Red Tribe groups specifically create and push the sort of worst-legal and -pragmatic case arguments possible with friendly prosecutors and 'defendants' collaborating to make the state's position crumble, a la the cy pres abuse from the Obama era. But as funny as it would be to see Guiliani dropped into new court cases just to fuck them up, the courts are no more willing to play with that than they are with honest engagement.
gattsuru
13d ago
In this case, the perp had brought a weedsprayer retrofitted to act as a flamethrower. There's a pretty wide variety of situations in which "shirtless guy with flamethrower" can be distinguished from "burning people and people running from flamethrower-dude", where the perpetrator would easily fit within all three corners of ability, opportunity, and jeopardy for self-defense or defense-of-others purposes. Even for other molotov attacks, these people haven't typically done anywhere near as good of a job 'fading back into the crowd' as they think.
Target discernment and backstop are things that matter, but they're vastly overstated as unsolved and unsolvable problems among antigunners.
gattsuru
13d ago
Yeah. On the upside, we also have Skrmetti dropping in the next couple weeks, it's near-certainly going to be a Roberts or Thomas opinion, and I'm sure they picked that case out of many available preliminary injunction cases just to affirm a denial of a preliminary injunction.
The cynical answer is the squishy center of the court is triangulating: a couple Trump cases and (maybe?) Skrmetti cost too many weirdness points, so sad, everyone else interested in vindicating their rights can go home. I find that particularly undesirable because my preferences don't exactly fall among Red Tribe Blue Tribe lines, but I'd bet someone like @WhiningCoil that does think trans minor laws are super-critical is going to see that sort of thing as 'look, we didn't vindicate their fake rights or your real ones, what do you mean blues keep coming up with new fake rights', not some even-handed application of justice.
But the even-less-optimistic one is that they just don't care. 2rafa lists ways that Barrett isn't a Red Triber, but it's not like she's been some exactly-by-the-book advocate of Catholic dogma, either. These things just don't matter to this court, and that's going to control how they apply the law. The FedSoc project insisted that they could mitigate or at least reduce the role of political currents in the judiciary in favor of a hard-hearted dedication to the raw text of the law, and the Litany of Tarksi tells us that no, they can't, and trying to find people who did gave us, 100% of the time, instead people who'd been drowned in Blue Tribe norms and expectations.
gattsuru
13d ago
Does the rule of law also impose no requirement that a court of appeals give an actual decision, rather than a member of that court sit on a dissent for the better part of a year while fast-pacing a competing case with a panel draw said judge preferred?
Because SCOTUS just condoned that, too, here.
gattsuru
13d ago
Okay. I think you need to make that joke a little more often before it really will hit without a lot of leadup, but I hope you have fun chasing your unicorn.
gattsuru
13d ago
Uh... here, I still owe amadanb a response to this post, but I'm kinda struggling to do so without just throwing up a giant pile of links to compare-and-contrast that I don't think amadan will find very persuasive. Had some work, teaching some students basic network communications in Java and databinding in C#/WPF. Grocery shopping, and trying to figure out a parts list for a hobby project pcb (still not done, godsdamnit digikey).
gattsuru
13d ago
The Blue Tribe does, in fact, respect and demand that status quo when it touches anything that they like. SCOTUS has, in fact, bent over backwards just within the last month to provide a number of Blue-Tribe-friendly alms. There was, in fact, a pretty sizable army of progressives who spent literally decades telling us how important is what that we'd be tied by rules set before the game started, and the Red Tribe bent over or was bent over to match it. There was, in fact, a pretty sizable number of compelling arguments against a clear set of legal norms and rules following clearly-established plain-text law, which favored no side and were not familiar with the particular quarrels of the day.
((The blue tribe has, in fact, spent thirty years yelling at me, personally, about how I signed the unwritten social contract by existing, and thus must play their games.))
I'd like those Constitutional Process rules to still exist! But it doesn't, and it hasn't for a while, and it's not clear anyone in power particularly wants to let it.
If you want talk progressives into the consequences of that rule, on such a scale that the other parts of the Constitution and its amendments get shoveled under the rug when a state disagrees, I'd... well, I'd still not want to live with it, but I'd at least not consider this comment a troll post.
As it is, there are links in my post above giving examples where the SCOTUS stomped over state rules, in ways that helped the Blue Tribe.
If we were talking background checks and 1986 machine guns, you might even have a point on the political costs. This case is about a ten-bullet magazine cap, and a ban on the AR15. These things famously were so unpopular on the federal level that they did, actually, not survive political scrutiny in 2004. That's a thing that actually happened. Concealed carry permits that aren't perverse jokes of due process cover a majority of the country, concealed carry laws that don't treat CCWers like vampires same, and both through people voting.
Five judges on the court can write a GVR faster than I can write this post. Anyone with a functioning brainstem can cut that 'gordian' knot of definition. And the court is quite happy to write sanctimonious screeds in that five minute time period defending the vital and important rights of a wifebeating illegal immigrant, face the music and political costs when yesterday an illegal immigrant lit a bunch of people on fire, and just smile on the next day like nothing happened.
They don't want to here. That's it.
EDIT: and, yes, that you have to compare a clearly-written right to one that even its proponents eventually admitted was just made up is a problem. That your 'oh no there might be a lower court case that would adjust in response' covers every single case the courts have ever heard, and hasn't stopped them from countless Blue Tribe decisions, matters. That the courts have ducked the consequences on Red Tribe matters from SFFA to 'someone wore a mean t-shirt', matters.
gattsuru
13d ago
That's be nice, but:
-
Barrett, Roberts, Gorsuch and Kavanaugh are all supposed to be the product of efforts to get judges that don't throw away parts of the Constitution in favor of whatever they feel like today. That's not to say that they should always be voting for the maximally Red Tribe modes, but this particular question has been a Red Tribe goal since it first entered the national field in 94; if they're not willing to defend this value seriously, it's not clear how we get anyone that will.
-
Kavanaugh, the man who could have placed the deciding vote, did not write out something along those lines. He told us, instead, a story about lower court cases assisting the eventual SCOTUS case on this matter, which they will not do and can not do.
gattsuru
14d ago
gattsuru
14d ago
I woke up today and didn't have "read Josh Blackman being too charitable to the squishy center of the court" on my to-do list.
gattsuru
14d ago
Not sure I could advise anyone I care about going to a protest armed either. Just having the CCW puts you in an untenable position here -- you get pushed to the ground by an unarmed person, now you're in a no-win place.
From a tactical perspective, perhaps. From a process one, that's either a demand to show up to a flamethrower fight with your fists, or to surrender the public square to the first group that brings violence.
Really we need a renewed commitment from law enforcement to do their jobs and stand between the various groups and let them each say whatever.
If you've got a unicorn, I'll take that, too. But while it's been an issue in previous cases like Kessler or Dolloff, it's not clear that it's what matters here. These particular protesters have been doing this walk for a year without serious counterprotest, and none of the news reports (for whatever you believe them) suggest that the attacker was operating with counterprotesters. This was, as far as I can tell, out of the blue.
Snope v. Bonta has dropped like a gravestone:
The State of Maryland prohibits ownership of AR–15s, the most popular civilian rifle in America. Md. Crim. Law Code Ann. §4–303(a)(2) (2025). This petition presents the question whether this ban is consistent with the Second Amendment. The Fourth Circuit held that it is, reasoning that AR–15s are not “arms” protected by the Second Amendment. Bianchi v. Brown, 111 F. 4th 438, 448 (2024) (en banc). I would grant certiorari to review this surprising conclusion.
That'd be a great opinion. It's not one.
Only Thomas, Alito, and Gorsuch have dissented from the denial of certiorari, which means that there is no Snope case now. This was final judgement (specifically, dismissal of the lawsuit), there are no other appeals, and there is no other chances. Maryland has banned a wide array of very common firearms, with vague definitions, the lower courts have held that these guns aren't even guns nevermind protected by the Second Amendment, and SCOTUS has punted. While Maryland's law here includes a grandfather registration clause, the circuit has already held that such clauses are unnecessary, none of the takings clause people cared, and SCOTUS punted. Binding law in the 4th Circuit holds that a firearm is not an arm.
It's also a case that has been rife with bad behavior from the lower courts; Thomas's dissent emphasizes the logical flaws, but I'll point out that under the name Bianchi this is the case that was held for over a year by a single judge on the appeals court who didn't file a dissent. There will be no percolation; 2A-favorable analysis of these laws will not be allowed to reach SCOTUS, and it will be smothered before en banc whenever possible.
Kavanaugh wrote an interesting ... concurrence? Dissental? Pile of bullshit? Statement. The record calls it a statement. This is particularly interesting because it only takes four to give certiorari; he literally could not write a dissent.
Given that millions of Americans own AR–15s and that a significant majority of the States allow possession of those rifles, petitioners have a strong argument that AR–15s are in “common use” by law-abiding citizens and therefore are protected by the Second Amendment under Heller. See Heller v. District of Columbia, 670 F. 3d 1244, 1286–1288 (CADC 2011) (Kavanaugh, J., dissenting). If so, then the Fourth Circuit would have erred by holding that Maryland’s ban on AR–15s complies with the Second Amendment.
Under this Court’s Second Amendment precedents, moreover, it can be analytically difficult to distinguish the AR–15s at issue here from the handguns at issue in Heller.
Again, would be a great opinion! It's not one, either. Instead:
Although the Court today denies certiorari, a denial of certiorari does not mean that the Court agrees with a lower-court decision or that the issue is not worthy of review. The AR–15 issue was recently decided by the First Circuit and is currently being considered by several other Courts of Appeals. [ed: list of cases moved] Opinions from other Courts of Appeals should assist this Court’s ultimate decisionmaking on the AR–15 issue. Additional petitions for certiorari will likely be before this Court shortly and, in my view, this Court should and presumably will address the AR–15 issue soon, in the next Term or two.
Why? Because fuck you, that's why. Roberts and Barrett, as typical for the majority in denials of cert, have no comment.
Kavanaugh gives a list of lower circuit cases that "should assist this Court's decision-making".
- Capen v. Campbell: The last decision was an appeals court holding "Appellants have failed to demonstrate that they are likely to succeed on the merits of either of their assault weapons- or LCM-related challenges." No preliminary injunction, basically zero percent chance of success at trial.
- National Assn. for Gun Rights v. Lamont: On preliminary injunction, "Plaintiffs have failed to show their likelihood of success on the merits, and so the Court need not reach the remaining preliminary injunction factors." Oral arguments were in October 2024; we don't have the final opinion (because fuck you, that's why).
- Association of N. J. Rifle & Pistol Clubs, Inc. v. Platkin: Hey, finally one with a progun trial decision, if only to the most limited extent (specifically only the Colt AR-15, and not an LCM ban that violated the takings clause) - and it's stayed on appeal. There's a separate issue that two terms won't be enough, given that this doesn't have oral args scheduled until the end of this month and the chance of en banc, but by the time we're asking whether New Jersey can ban Very Specifically Colt's Version Of The AR-15, we've already lost the plot.
- Viramontes v. County of Cook: "For the foregoing reasons, the court grants Defendants’ motion for summary judgment and denies Plaintiffs’ "; aka the "AR15s are like M16s, right?" case. Oral arguments on appeal were November of 2024. Most likely to get a progun ruling (if only because Easterbrook apparently forgot to set his alarm that day), barring some weird procedural detour, but it's also in a bizarre procedural position because the Cook County ban in question was augmented, after the suit was filed, by a broader state-level ban... that SCOTUS also already punted on.
- Miller v. Bonta: hahahahaha, it's the Ninth Circuit, it has a snowball's chance in hell. Maybe we'll get another VanDyke youtube video? Haha, funny meme, yes? Except it's also been stayed since 2024, after original oral arguments, pending resolution of a case that dropped in March of this year, we don't have an opinion from it, and it's the fucking Ninth Circuit so there's literally no possibility of it escaping the en banc process with a progun result.
To be blunt: this SCOTUS will not be address the AR-15 issue in "the next Term or two". There will be no grand cases from the lower courts with a serious investigation of the Second Amendment ramifications that split the baby some perfect way. There will always be some excuse why a specific case wasn't the ideal vehicle, or why some new one that's just reached oral args is the better vehicle later, or why some specific law wasn't the best demonstration. Optimistically, Kavanaugh got a promise from John "Article III is <Not> Worth A Dollar" Roberts and will find out how much that promise is worth; pessimistically, Kavanaugh's a politician wearing robes and this is what he says to get readers (especially the sort that might make unscheduled visits to his house) to believe what he wants them to believe. Eventually, Thomas and Alito will retire, and either we're going to get much worse judges from a technical side who can actually make a fucking decision that matters when it shocks the conscience of the Amtrak world, even if that means they'll also bark on command when Trump asks, or a Dem president will get those seats, and either way, the conservative legal movement and anything deeper than a pretext of originalism will go the way of the dinosaur.
Meanwhile, the plaintiffs here get nothing. They will be out years of their lives trying to bring this case, and tens or hundreds of thousands of dollars in legal fees and attorney's costs. They will either have moved from Maryland, or gotten rid of any 'assault weapon' that they once owned, or never been allowed to buy one. A decision in a term or two will not protect Ocean State Tactical, another (pre-final-judgment) case SCOTUS denied cert on today, from being just as completely fucked over. Even should SCOTUS find their balls or be delivered new ones and eventually issue a pro-gun ruling, most circuits have standing orders that only recognize the most complete and on-point decision from SCOTUS as overruling circuit precedent, and the one exception is the 9th Circuit (and with a "when we like it" rule). SCOTUS has happily demonstrated, for the better part of a decade, that they will not smack wrists over that. Anti-gun lower courts will take this as an affirmance in the meantime.
It's not even as though guns are the only matter here: SCOTUS has similarly punted on the question of But It's Mean on Free Speech. Hell, guns aren't even the only thing in the guns cases. The court has similarly punted on the question of whether But It's Guns on Due Process, or But It's Guns on Free Speech [see also], or But It's Guns on Court Settlements, or even But It's Guns on the very caselaw that SCOTUS thought so beyond the pale that they'd managed to scrounge up a 9-0 before.
And, of course, there's the blaring siren in the room. As Thomas points out, SCOTUS has punted on this very specific legal question for over a decade post-Heller, while claiming a right delayed is a right denied. SCOTUS has a case covering the type of gun Heller was trying to bring in Heller I, it's listed for conference for Thursday, it's been over a decade, and they're gonna deny it, 99.9999%. And where I'd once point out that it's been longer since Heller than it was from Lawrence v. Texas to Obergefell, and Dick Heller still can't register (lol) the actual gun from his original case, I'm instead going to something a little more specific and recent. SCOTUS defied all its normal rules about procedural posture to protect the rights of an illegal immigrant in six hours on a holiday weekend. That's what SCOTUS cares about, and for every single court case they punt on in my lifetime -- whether challenges to a law like this, or people sitting in prison like Dexter Taylor -- this the standard they've set, and then forgot as soon as a normal citizen who hasn't beaten their wife got involved. Every single second longer than six hours, for cases that have 'percolated' for years.
Some peoples rights need be resolved right away, and others can wait and wait and wait.
At least 31 people were killed Sunday morning in southern Gaza, according to the Strip’s Health Ministry, when Israeli troops opened fire on crowds making their way to collect aid from a new distribution mechanism backed by Israel and the United States that has been marred by chaos and violence since it began operating last week. More than 170 others were wounded Sunday in the Rafah shooting, officials said, marking the deadliest incident yet as Palestinians desperately scramble for food despite the danger.
Other organizations have given numbers into the 50+ fatality range. This is pretty much the nightmare scenario for the Trump takeover of the aid program: removing Palestinian or UNRWA control of incoming aid prevents diversion or theft, but a single security failure or panicked guard could be both a political and humanitarian nightmare, and because the organization managing the aid deliveries is tied to US sources, it'd be a worldwide political and humanitarian nightmare.
It's also not clear it's actually happened.
The IDF and GHF have denied it, which, well, they would, wouldn't they? But there's no video of the event, despite the large crowds that must have been present. The Israelis, meanwhile, have released video of gunmen firing on crowds not far from the aid distribution site in question, and said gunmen at least aren't wearing uniforms for the IDF or GHF or GHF-security, and Hamas has been making pretty loud noises about punishing Palestinians who cooperate with the GHF program. Fog of war makes things hard, and trust is difficult in a situation like this, but it's enough that a lot of headlines in even Arabic-focused orgs have switched to the passive voice.
A man threw an incendiary device at an event organized by a Jewish group at a Colorado pedestrian mall to call for the release of hostages in Gaza, authorities said. At least eight people were hurt before a suspect was arrested in what officials called a targeted attack. Mohamed Sabry Soliman, 45, of El Paso County, Colorado, threw Molotov cocktails and yelled “Free Palestine” before he was taken into custody, police said, citing witness accounts of the attack. Two victims were airlifted for treatment at a burn unit, officials said.
With eight people, all older than fifty and some over eighty, facing serious burns, it'll be a minor miracle if there are no fatalities. 'We may never know the motive' and some CNN apologetics (why is McCabe anywhere near a camera?) or CBS NBC gymnastics aside, the alleged perp has since been charged pretty harshly and has received as high a bail as Colorado meaningfully goes, and the state governor has condemned the attack (he's running!). The feds have another bit or two at the apple if needed, and absolutely would love to chew this guy and spit him out.
There's some easy if morbid memes, here, but I don't expect this guy to get quite as much a Western fandom as, say, Luigi. I'm gonna make a wild ass guess and assume that the shirtless molotov-tosser falls pretty deep into the Hradzka garbage person scale. It's hard to overstate how radicalizing it's going to be as an example, though. The alleged perpetrator was a visa overstay from Egypt who'd gotten work authorization and an asylum claim in under Biden; the victims had been making (kinda goofy) protests over the October 7 hostages for over a year and were hit directly outside of the county courthouse.
We don't know whether he heard 'about' the GHF aid massacre. Again, garbage person, for all we know today, the man was lashing out about 'zionists' because the radio waves in his molars thought it was the best way to help free gerbils. But I think there's some components worth spelling out:
- Staying strapped is going to become more of a byword for several political groups. The theoretical question of "If he wasn't carrying a gun" stopped being theoretical over year ago, now. There's not been a serious attack like this on a Pride parade yet, and I'm still evaluating whether I'm going to the strap-prohibited local one (and, tbf, whether I can tolerate that level of Mama Mia soundtrack); I can't advocate anyone legally able to CCW to go to a Gaza-focused protest without CCW.
- The consequences of staying strapped is very likely going to become front-page news in the next year. And it's not going to be a great situation for the guys who starts something, but it's also not going to be a great situation for the guy who ends that something. Dolloff was Denver, but it's not hard to consider how the culture war lines would fall on a remotely unclear shoot.
- ... but probably not in the places where it's most important for this specific attack. Colorado's carry laws are complicated and in flux, but Boulder, specifically has been very aggressive and basically ban carry in public spaces. Most other places where a lot of the
nuttieststrongest pro-Palestinian voices congregate are pretty similar in effect, if not in text. You'd think that would be a violation of Bruen? Yeah, but that's a matter for my other post today on Snope. That's not going to stop everyone, but it's going to get a lot of the people who might be test cases to just to go elsewhere... - ... while the unarmed remain.
gattsuru
15d ago
There's... a lot of guys where "if it'd never leave my circle of friends" is absolutely a desirable state, rather than a risk. Exhibitionism can have a lot of different drivers, ranging from the less good (eg risk-taking) to the better (eg, here's power over me because I trust you, I want to be seen as scoring good at sex which is a normal and possible thing to do), but even outside of gay circles that have particular reasons for it (for Greenwald's age range, getting caught doing this was at least theoretically a crime when he started fucking, which adds a lot of frission to 'oh no someone caught me') it's pretty common.
The risks make it undesirable for even many with the kink, and should probably make it undesirable for many more that are thinking with their upper head, but it's not an ungrounded fixation.
gattsuru
16d ago
There's been some principled people out there, whether I like their principles or not, but yeah, it's been kinda hilarious watching people bend over backwards to either suddenly find a journalist more important than their longstanding adherence to natural law, or where the same people horrified that a musical center guy was fired for being gayand a bunch of competence issues suddenly find hoist petard jokes hilarious because something something Russia fandom. Especially for degeneracy that's little more than dressing in drag and doing the hula, so to speak. I expect Lindsay to be a hypocrite and a dumbass, but it's not just him, either.
((Though I can't claim any special level of correctness, here. I'll offer the Nice Cock complement to someone like cathode_g; for a journalist I can't really offer more than 'at least he found a hobby with some dignity'.))
I enjoy your effort-posts about law, so criticize Unikowsky to your heart's content!
At least for Espinoza, Montana's argument was pretty much just one too-clever-by-half argument after another:
- Discrimination is bad. But unlike discrimination on race, which is never permissible (though see his commentary on SFFA here, which does not make the same division), discrimination on matters of religion are permitted because of the establishment clause, so long as it does not discriminate from one religion to another. Sure, this amendment was near-certainly motivated by dislike of Catholics in its original form, and the analysis when the state constitution was reenacted was perfunctory, but it's not from the Champagne region of France, so why look closer?
- Wait, what does that whole "free exercise clause" thing mean, then? Oh, it requires his preferred position, too: access to a nonsectarian and generally applicable fund might give "government leverage to influence religious education", so the free exercise and establishment clauses together doubly mandate a rule against funding being available to religious people. You thought perhaps it would be wiser to stop government influence of religious education by allowing states to challenge government influence of religious education, so I'm sure Unikowsky will eventually have some commentary on the ministerial exception someday, but it's not happened yet.
- And the various process concerns Montana raised in the brief are pretty pretextual. There wasn't a federal question or a bunch of other similarly prescribed other state laws, despite the existence of Blaine Amendments in over a dozen other states or the state's interpretation of the federal constitution, because there's some very specific things about how the program was funded or how the Montana Court blew up the program. Any other case would have these sort of specifics, if different in detail, but it's an argument, throw it against the wall.
With regards to Unikowsky's position on clever interpretations, how do you think a litigator's arguments on behalf of clients should be weighed against the views they independently express?
I think it's a more plausible argument for public defenders than it is for people on the SCOTUS bar. Unikowsky was not assigned to work with Montana out of some computerized selection criteria or preset longstanding contract. At minimum, he joined Jenner and Block knowing it was arguing these sort of cases with this sort of valiance, he's done so in a variety of contexts (eg whether public employees can be fired for inadvertent misgendering), and some of those he's argued separately from his clients or employer. More likely, while he wasn't the sole decision-maker, he had a pretty sizable degree of control and advocacy, and personally chose to be involved in the case.
Within that context, there are still some places where I can understand someone just having to work with what they've got -- Unikowsky's response to the animus discussion is misleading, but heightened-rational-basis-because-animus is basically fatal, so if you don't have better arguments yolo, okay. But his statement in AshLael's link is about what he sees as what the role of SCOTUS; if that's not the same thing as what's more likely to succeed before SCOTUS, it means nothing.
My argument is not about Unikowsky's credibility as a lawyer (I don't, frankly, know). It's about whether his analysis tells you anything about what the courts will do, or even about what principles he thinks the courts should follow in general, rather than just what he thinks will get him his way in a given case.
What does this mean?
Unikowsky is not describing the state of the law, but by what he thinks would be good policy were it the law. As a result, the only meaningful read you should take from his writings are specifically what he thinks would be good policy for achieving his goals.
Did they play games in court, in order to do so (e.g., dragging their feet, after being court-ordered to deport a criminal, or misleading the courts about the status of aliens)
Yes, they did. The Biden administration policy in US v. Texas was specifically about 'prioritization' of aliens with final orders of removal, including those with final orders of removal for criminal behavior, to such a point as to not ever do it for wide portions. Instead, the Biden administration issued a memo telling all DHS staff that they would not deport such illegal immigrants, and then told the courts that they Tots Weren't Making Decisions On This Memo, and then made decisions completely in line with the memo's directives.
Now, the final orders of removal themselves were Article I administrative law judges. If you want specifically Article III court orders in the context of immigration, you'll have to look a little further back. The Obama administration, when DAPA/DACA was being challenged, swore before court both in writing and orally in the court proper that they would not issue any new determinations under the new policies, in order to avoid having the judge issue a preliminary injunction. And then the issued literally over a hundred thousand.
Could you please elaborate on this?
Civil proceedings against citizens have extremely minimal due process protections, and almost always operate on a "preponderance of evidence" standard rather than "clear, unequivocal, and convincing evidence" one. Your own example (lawyer dog) was a criminal context where the courts have found a right to an attorney less urgent than advocates or judges are calling for illegal immigrants here. There are extremely few situations where an American citizen facing criminal charges can defend themselves by complaining that a form does not provide sufficient information about what must be done to achieve some legal defense; indeed, SCOTUS has recently allowed felony convictions over harmless paperwork errors based on interpretations of the law that were not clearly evident to experts.
There are ways to square this circle, but they ultimately give a solution where the rights of illegal immigrants are paramount, and the rights of citizens may sometimes, eventually, maybe, possibly be protected if the current makeup of the relevant appeals courts likes you in particular.
gattsuru
18d ago
The above comment is over a year old, as a warning.
"aversion to clever solutions isn't as awkward as when coming from the emoluments clause fandom, but it's still pretty nakedly new given the man's role in Espinoza"
In the article AshLael wrote above, Unikowsky said:
My most fundamental objection to the NRSC’s position is that I’m allergic to excessively clever interpretations of the Constitution. I don’t agree with the NRSC’s theory for the same reason I don’t agree with efforts to distinguish “office of the United States” from “office under the United States”: these arguments treat the Constitution like the Da Vinci Code.
I don’t know how the Supreme Court should resolve Trump v. Anderson. But whatever the Court does, I hope its opinion hews as closely as possible to the ordinary meaning of the constitutional text.[emphasis added]
This is enough of an argument that it gets a header.
However, Unikowsky was the attorney of record for Montana in Espinoza v. Montana Revenue. At the risk of ironing over some finer details, the case involved Montana blocking (a program that indirectly funded) otherwise generally-applicable scholarships to religious schools, a few families suing the state to be allowed to access the program and winning at the district level, and then the state court getting rid of the whole program. There are ways to argue these policies, and Unikowsky made them at oral arguments, if not especially honestly. I can criticize them separately, if you'd like (please: "when you talk about discrimination, we can mean two different things" is a great opportunity).
For the purposes of this comment, the simple problem is the text of the First Amendment holds "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof [...]". Unikowsky takes the various epicycles of the legal jurisprudence as a given: "respecting an establishment" means pretty much any religious funding or suggestion thereof, "prohibited free exercise" has its Smith-level deference to 'unless the state wants to get in the way', and you get into this very clever situation where he can argue the state either can block opportunities to religious groups or can close down a program specifically to avoid helping religious groups. But its plain text does not actually say that.
gattsuru
18d ago
What are the actual requirements for getting prescribed puberty blockers?
Under US federal law, you can get prescribed something off-label just because your doctor thought it sounded good, so long as the drug was approved (and doesn't fall under DEA et all). I have a breakdown of WPATH's conventions over time here, but there's no requirement that a doctor doing trans-related care even be aware of WPATH, nevermind commit to it, and even those that run with WPATH tend to pick-and-choose from v7 and v8 if they aren't from one of the big gender clinics.
Most actual enforcement is predicted to fall under what insurance companies are willing to cover (except the ACA requires all covered plans include gender care) or what doctors expect to fear from civil lawsuits (except these are an absolute mess and no one has a good idea what the actual fallout will be under law today, and the interstate nature of how those lawsuits will shake out is going to make things even messier).
What are the probabilities of serious consequences from puberty blockers?
Physical consequences seems to depend very heavily on both when the drugs are first provided, and how long they're used. The 'precocious puberty' problem that a lot of the scientific data is based around relatively short-duration (1-2 years) use, where you maybe see a little bit of difference in bone health or adult height at the margins. What data we have from non-gender non-pre-normal-puberty use shows controllable bone health issues, but that control is dependent on use of estradiol or estrogen (in women), which is unlikely to be used for gender therapy in transmen.
Mental, people on puberty blockers are a lot more likely to (continue to) transition.
Both puberty blockers and hormone therapy are linked to certain types of cancers, to such a point where transmen not intended to have (biological) children are were once encouraged to have a hysterectomy by their late thirties (WPATH v8 limits this to cases with a family history or other risk factors). The actual incidence and impact is pretty low, though, and it's migrated through so many intermediates (therapy links to PCOS which links to endo cancer which links yada yada).
But the big question is the uncomfortable one of whether puberty blockers cause long-term sexual nonfunction, the infamous "never have an orgasm". Studies on this matter give more uncertainty, and Bowers' model seems... confused or at least simplified-for-normies (do you want to go on national television and have a conversation about childhood sexuality? Because I don't want to even think about it too hard), but the contours of those studies leave cause to be more cautious rather than less.
My gutcheck is that these issues will exist for those who undergo puberty blockers very early, for a long period, and then don't transition have at least reduced sexual drive; I don't think Bowers claim should be taken literally, but I do think there's a lot to be cautious about Tanner 2 or even early Tanner 3 start dates.
I really thought "don't give minors seriously debilitating life changing pills to solve a solely mental disorder" was an easy hill to stand on, but the fighting was just as vicious as anything else with the gender issue.
If we had a drug that perfectly cured severe schizophrenia, for example, with the side effect of reduced sexual functioning, would you consider it impermissible to provide to those who wanted it? Or is the objection about what the mental disorder is, first? And, from the other direction, early social gender transition has shown a pretty strong link to later transition (and I'm willing to bet not solely correlative). Would social transition be acceptable if the people in question waited until they were 20 to undergo chemical or surgical intervention?
I'm not going to claim that the answers should be clear, but I'm generally very skeptical of advocacy that doesn't leave space for anyone on the opposing side to be merely wrong or merely have different values.
gattsuru
18d ago
One wonders what qualifies as "immediate and irreparable harm" in the US Court of International Trade if not that.
The courts have very stupid standards for 'purely' economic harms, since they treat these as if they could always be remedied with money (even if the courts won't or can't issue that money). This was a big deal during a lot of the COVID cases. The arguments for the TRO thus rested pretty heavily on harm to goodwill or reputation that were... not very strong.
((That said, courts are also quite willing to munge on the sides of this norm; the NPR and especially trans military employment TROs are pretty significant in certain senses because they're bent over backwards to depart from this normal rule.))
The SCOTUS might even uphold the ruling? Huh.
It's unfortunately likely to be a for-the-case-only sort of thing rather than a serious revival of the non-delegation doctrine, but possibly. That said, I'd put an emphasis on 'possibly'; the focus here rests in an ugly crux on questions that border on political in a law that specifically lay out the approach Congress could and should block it, while Congress hasn't.
With judges appointed by multiple Presidents (though not Trump)?
Rief is a Trump appointee, although the CIT appointment process tends to make it somewhat less politically loaded than, say, SCOTUS or federal appeals courts.
The court finds the President overstepped the authority delegated to him by Congress under IEEPA by declaring a fake emergency
No, the court specifically finds that the declaration of emergency is not in question in this case:
"In doing so, the court does not ask whether a threat is worth “deal[ing]” with, or venture to “review the bona fides of a declaration of an emergency by the President"[...]
Instead, the court focused on whether the tariffs were exercised in "exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose." This still comes across as an awkward fit, by my eyes, but it's a different question.
I read >0 amount of political analysis about this and nothing seemed to cover the US CIT striking this down as a possibility. Does the media just suck?
May depend on when you were reading about it. The VOS case was filed relatively late, compared to several other cases filed in other jurisdictions (eg two weeks after the NCLA one), which may impact what extent you heard about it.
Somin's been pushing it pretty heavily at Reason, unsurprisingly given that he's a major booster for the case -- I can't really promote the blog for its legal analysis anymore, but if you want to know what people want the law to be, it's still pretty informative.
... it's funny seeing the well-funded national org use worse surveys than I, a rando, threw at amadan offhandedly; it's funnier that they can't spend five minutes on tumblr to actually get a good summary of what Luigi fandom looks like.
(tbf, we are talking tumblr or instagram or tiktok or discord or a punk meatspace group)
The cynical answer is that the NCRI, specifically, is not some neutral true-seeking organization anymore than the Princeton Gerrymandering Project was. They were founded in 2018 as part of an effort to fight the alt-right, and came to national attention after a series of reports in that started with Boogaloo panicking ("this, like turning off the transponders on 9/11, enables the extremists to hide in plain sight, disappearing into the clutter of innocent messages, other data points"). The org pulls in increasing amounts per year (1.45m in 2023) and lists its address as an office park that (at ~5k/year rent) is probably little more than a PO box -- I can't say for sure that they're a cutout for another org to whitewash funding the group, because they fall under the threshold that breaks down how their income works, but there's not-subtle hints pointing that direction.
Yes, they're also probably just left-leaners given that they're pulled from the left side (Princeton, Rutgers) of academia to start with, but they're were built from the ground up to find specific enemies. It's certainly possible that they're trying to pander to Trump, or suddenly reveling in their newfound freedom to see the nose in front of their face, but there's a bit of a blander option: they think these specific groups are in their list of enemies to be targeted, too, and they want to shape how that discussion goes so the people they don't consider enemies are well outside of it. Beware outgroup homogenity bias.
That's why they're not doing a retrospective and suddenly finding any of the literally years of punch nazi discourse, that's why there's no comment on a Certain Topic That's Supported In Princeton, that's why their list of incidents is so short and circumscribed, that's why they can only model left-wing violence as authoritarianism, that's why their 'left-wing' authoritarianism is so obviously post-hoc and cumbersome (antihierarchical aggression, anticonventionalism, top-down censorship aren't just awkward mirrors to their 'right-wing' counterparts, they're not even accurate names to their own descriptions).
Compare ProPublica writing a big story on H1-B abuse without using the word 'fraud' a single time.
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