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Notes -
Supreme Court roundup thread? They dropped four opinions today that have some pretty wide ranging implications. Some more than others.
In Chatrie v. United States a 5-4 court (with Roberts and Barrett joining Kagan, Sotomayor, and Jackson) holds that geofence warrants constitute a "search" under the 4th amendment. This does not necessarily resolve the case in favor of Chatrie, though. The government did have a warrant in this case, although it's not clear whether the warrant was "reasonable." SCOTUS here is mostly pushing back on the holding by the Fourth Circuit panel that a search had not even occurred under the fourth amendment, due to the third party doctrine.
In Watson v. Republican National Committee a 5-4 court (with Roberts and Barrett joining Kagan, Sotomayor, and Jackson) the court holds that federal laws specifying an election day do not pre-empt state laws that permit counting ballots received after that day, so long as the ballots are sent by that day.
In Trump v. Slaughter a 6-3 court holds that the "for-cause" removal provision for FTC commissioners is unconstitutional, overruling Humphrey's Executor. This was pretty widely anticipated, since the Supreme Court has gradually been expanding the President's power to remove officials since Trump's re-election.
In Trump v. Cook a 5-4 court (Roberts and Kavanaugh joining Kagan, Sotomayor, and Jackson) holds that the President may not fire members of the Federal Reserve Board of Governor's at-will. The for-cause provision regarding firing members of the Feds BoG is constitutional and sets a "substantial threshold" for what constitutes cause.
Most online discussion I've seen has been focused on the latter two decisions and their apparent inconsistency. Apparently, Congress can only insulate executive branch employees from Presidential termination some of the time and those circumstances do not depend on the wording of the statute or anything else Congress has any control over. Roberts is the author of both opinions and he tries to square the circle by arguing that the United States has a long history of independent central banking but I don't think he's very convincing. The Federal Reserve itself is a mere 1 year older than the FTC (founded in 1913 vs 1914) so Roberts tries to reach back to the First and Second Bank of the United States and nevermind the fact there was an 80 year period where the United States had no central bank between the Second Bank of the United States and the Federal Reserve. Some of the syllabus even, in my view, departs from anything that could be called a legal argument to argue that this is good policy:
The court has also said tomorrow will be the last opinion day, in which we will presumably get the four remaining opinions (including birthright citizenship) so maybe I'll have to do another one tomorrow.
I want to place a bet on birthright. I care basically zero about the legal arguments and I don’t think Robert’s primary instinct is choosing the best legal argument.
Simplistically I don’t believe Robert’s will want to create the next Roe v Wade that lacks a legislative solution and ends up creating a voting block that only votes for repeal of Roe. I will consider voting only for candidates who will appoint judges who will repeal Birthright if Robert’s removes the ability of action on the issue outside of the SC. I think both legal arguments to go either way are intellectually coherent so you can just pick the legal theory you want.
My gut says he upholds most of birthright but finds a way to let congress make the rules in the future. This may be the weakest legal theory to just punt to congress but it feels like it fits with Robert decisions. And this includes deciding the Fed is special today. It’s usually better to punt controversial things to congress instead of locking change into multi-decade SC battles.
Everyone knows amending the constitution is impossible now so amending the Constitution just comes down to change the Court membership. Getting controversial things out of the court hands has value to maintain the Court legitimacy. You don’t want a different court in 20 years reversing tomorrows decision.
Roe v Wade was bad because it was legislating from the bench. It is very hard to make the argument that the constitution grants abortion rights without tying your head into a pretzel.
If you want to argue that the 14th does not grant children of migrants citizenship then you would have to argue that what the authors meant by jurisdiction is in fact the duty to pay capital income tax in the US, and that the former slaves had this duty but foreign residents do not, or find some other bizarre interpretation of jurisdiction.
Would you feel the same way about the rights granted by 2A as by 14A?
I am a big fan of a legal system where words mean things, and courts try their best to interpret the meaning of the text while also keeping previous precedent (where it did an honest job of interpreting the meaning).
If words do not mean things, you do not need much in the way of a constitution, you can simply have a SCOTUS filled by wise elders who can veto any laws or decrees they deem unwise and replace them with wiser ones.
That is an argument for not torturing the text of the constitution until it confesses to your meaning and the Kennedy assassination.
I am solidly pro-choice, but I fully understand the pro-life's anger at Roe v Wade. It is not like there had been an abortion amendment and the SCOTUS was just "jupp, that means abortion has to be legal". Instead, the court conjured this thing out of thin air, because they felt that achieving the right ends was more important than using the right means (e.g. sensible textual interpretations). So pro-life embarked on a half-century quest to replace SCOTUS with more sympathetic justices, and actually succeeded.
I do not hold overturning Roe v Wade against the current SCOTUS because it was clearly a terrible precedent. By contrast, United States v Wong Kim Ark follows a textual reading of the 14th. If the SCOTUS overturns this precedent without providing a rock-solid argument why it was in fact wrong, they will prove that they are as much partisan hacks as the court which decided Roe.
In that case, filling the SCOTUS with their candidates will be the prime objective of both parties. Either the Republicans win, in which case 14A is only of historical interest, and 1A might not apply to anything Trump labels "left-wing radical", or the Dems win, and 2A will only be of historical interest, and 1A will not apply to anything which president Newsom designates as "hate speech", which will coincidentally include most campaigning by the GOP.
Both of these outcomes would be terrible. I would much rather see the SCOTUS return to being non-partisan referees. Luckily for me, it seems that the current SCOTUS is not afraid to vote against Trump when they feel he is just plain wrong.
Even I'm amenable to the idea that there are categories of weapons that ought not be available to random assholes. McNukes are a fun joke, but not something taken seriously by people outside the range of Sovereign Citizens.
Similarly, I don't think the founders, or the ratifiers of the 14th Amendment, envisioned a world where a peer rival could trivially fly millions of pregnant women out to a tourist resort to give birth, and thereby build up a massive voting block of birthright citizens with entirely foreign loyalty.
What?
I think you might be the first person to envision that today. Personally, I’d rule that airlifting millions (?!) in a ploy to seize voting rights involves removing U.S. jurisdiction over whatever area. Defeating the world’s premier air power would certainly do that.
But it’s not exactly salient. How many of the existing illegals used a plane at all? Surely the founders were aware of the possibility of land crossings.
No, that already happened. China has something in the ballpark of a million of it's people who have American citizenship via birthright tourism - and the trend appears to be accelerating.
That seems pretty damn salient.
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