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Notes -
In other SCOTUS news, we have four more opinions published today.
Two of the cases involve very similar issues--Section 1983 claims for retaliatory arrest and malicious prosecution--but for some reason the breakdown of Justices is different.
Gonzales v. Trevino: A per curiam opinion, with separate concurrences by Alito, Jackson, and Kavanaugh, and a dissent by Thomas. Gonzales was arrested and charged with stealing government documents, based on her allegedly attempting to make off with a city council petition (possibly to cover up that she obtained some of the signatures on the petition under false pretenses). Alito's concurrence helpfully summarizes the facts of the case, and, in an unusual move, even includes links to Youtube videos of the incident! (Here and here, for your viewing pleasure). Gonzales admits that there was probable cause to arrest her, but she claimed her arrest was in retaliation for her protected speech criticizing other city officials. The relevant precedent, Nieves v. Bartlett, says that probable cause defeats a retaliatory arrest claim unless the arrestee can show that other people, who allegedly committed the same crime, were not arrested (which would imply that the arrest was motivated by the arrestee's speech, rather then genuine law enforcement concerns). Gonzales presented evidence that other people ... had been arrested, for slightly different crimes, but nobody had been arrested for doing exactly what she allegedly did (with no evidence that anyone else had ever tried to do exactly what she allegedly did). To me, this evidence seems irrelevant to the Nieves exception, which requires a showing that similarly-situated people were treated differently, which is not what Gonzales' evidence showed. But the majority decided it was good enough to, at least, merit further consideration by the lower court.
Chiaverini v. City of Napoleon: Kagan writes for the majority, Thomas dissents joined by Alito, Gorsuch writes his own dissent. A jewelry store owner allegedly bought a stolen ring. He was charged with receiving stolen property, dealing in precious metals without a license, and money laundering. Prosecutors later dropped the charges. Chiaverini brought a 1983 claim for malicious prosecution--which, again, requires proof that the government lacked probable cause to arrest him. The lower court threw out his claim because the first two charges were "clearly" supported by probable cause, even if the money laundering charge was not. The Supreme Court reversed, holding that if even one of the charges was not supported by probable cause, Chiaverini could have a valid claim. Both Thomas and Gorsuch, in dissent, seem to agree that malicious prosecution is not properly considered a constitutional claim for section 1983 purposes--the main difference is that Gorsuch relies on an opinion he wrote while a judge on the 10th circuit Court of Appeals.
Diaz v. United States: A case about expert witnesses in criminal trials. The most interesting thing about this case is that Thomas wrote the majority opinion, Jackson concurred, and Gorsuch wrote the dissent, joined by Sotomayor and Kagan.
Moore v. United States: A mind-numbing income tax case. Kavanaugh wrote the majority opinion, Jackson concurred, Barrett concurred joined by Alito, and Thomas dissented alone as is his wont. Most interesting to me, however, is the publication of a "statement" by Justice Alito, concerning Senator Richard Durbin's sending a letter to Chief Justice Roberts "urging" him to "ensure" that Alito recuse himself in the case. Durbin's letter was ostensibly based on the view that Alito could not be trusted to decide the case without bias, because David B. Rivkin, an attorney for the Petitioners in the case, once interviewed Alito for the Wall Street Journal. Alito points out that the mere fact he was interviewed does not give rise to a presumption of bias. In addition, he points out that Durbin's letter seems like a suspiciously isolated demand for recusal: Alito provides a half-dozen footnotes detailing the numerous times his colleagues on the Court have been interviewed by media companies and then gone on to decide cases wherein those media companies were parties. I had fun reading this, but I'm sure politicians will continue making baseless demands for recusal on similarly flimsy pretexts.
Rahami dropped today.
It's about what I and @The_Nybbler expected, and worse a Roberts opinion at that. Roberts did "not meant to suggest a law trapped in amber", and lower courts will quite happily take his already-extensive 'analogies' to permit nearly anything. Barrett continues to parade "Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms” and promise that this isn't a blanket permission slip for lower courts to turn into an interest-balancing approach that never recognizes gun owner interests, and no one with two brain cells to rub together should believe it. The progressives continue to argue in favor of overturning Bruen (and, implicitly, Heller), and beyond that just making that blanket permission no-gunnie-interest interest-balancing test the rule instead.
There's a separate Gorsuch concurrence, but, unsurprisingly, it is not going into the fine details of esoteric interpretations in some way that might help Second Amendment causes, and instead just to announce how much the court is punting.
In theory, the concurrences draw out a large array of other challenges to the same statute that would be more suspect, but we're several years -- and several far more sympathetic cases -- into SCOTUS punting on them, there's no way to bring a challenge without risking your freedom, and no guarantee that you'd not find yourself Abramski'd even if you did. The most optimistic gloss I can read is a bit of text for Range, but Range doesn't even have cert yet, and I would not be surprised to see him GVR'd for another three-year-delay.
Tactically, domestic violence was not the battlefield that gun folks should be contesting.
They were on a good streak since Heller, but this was a bad case and you’re right it made bad law.
The Supreme Court denied cert to multiple cases with more sympathetic defendants in favor of Rahami, whose case was brought by public defenders and not any organized gun rights organization. They chose a bad case because they wanted to have as much an excuse as possible for walking back Heller and Bruin, which the lower courts have rejected.
Is this maybe a good thing? I see no personal challenge to my gun rights living in a red state - I think large Federal gun restrictions died with the % of the electorate who owned a gun increasing during COVID/the summer of Floyd.
If blue states want to pass more restrictive laws: A. That's a plus for federalism, the only way I see to reduce the national partisan temperature B. That provides lots of fun little opportunities for research on differences in shooting and such that a unified national regulatory structure does not.
It's not a plus for Federalism when their rights apply everywhere but yours only apply in your home state.
I think there have been inroads in some areas, ie school choice that are more red-state coded, while still taking your overall point
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Their right to abortion now only applies in blue states.
And Blues are actively undermining the court because they find that situation intolerable.
How do you mean?
The current Supreme Court situation looks more functional than it did in Mitch Mcconnell’s day.
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But unlike other “rights” most will never use or use only once the abortion “right.” Given that it is trivially easy to travel to any blue (and even many red) state, there isn’t a big restriction on this so called “right.”
Reds don't treat "small restrictions" on their "so called rights" as lightly, I observe.
Consider: most will never use their right to defend their house with lethal force.
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Yes, that's their singular loss.
Laws around soft drugs are another example, even if widely disregarded.
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