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culture war roundup

Culture War Roundup for the week of June 10, 2024

Vidal's breakdown is... less interesting than it seems from the top line.

  • Thomas I, IIA, and IIB are pretty standard breakdowns of the case history and the most immediately relevant caselaw. There's not really anything to disagree with, here.
  • Thomas IIC points to pre-Revolutionary British and early-American law and tradition. The liberals and Barrett split here.
  • Thomas III is a teardown of Barrett and Sotomayor's analysis of more distant First Amendment jurisprudence (limited public forums and public benefits, respectively). Kavanaugh and Roberts left here, in addition to the liberals and Barrett. There's a philosophical position where the, but since neither Roberts nor Kavanaugh joined in the liberal more likely it's just collegiality uber allies.
  • Kavanaugh said even without a historical tradition, a viewpoint-neutral and content-based trademark rule would still be constitutional (why? doesn't say). Roberts joined.
  • Barrett I and II argue that trademark law is newer than the Founding era, and as a result, more expansive analogies are required, including matters like limited public fora. This... works, but it reads very much as finding an answer first and then reaching for something that would justify it, even by her own words: "I view the content-based nature of the limited public forum as analogous to the trademark registration system." Kagan, Sotomayor, and Jackson joined here.
  • Barret IIIA argues that some of the early laws Thomas points to did not include the prohibition on names that he thinks they did. This lost Sotomayor and Jackson, probably because they neither know nor care to be shown wrong.
  • Barret IIIB argues that even if the evidence were "rock-solid", she wouldn't focus on, but instead note that trademark law as a whole has generally revolved around content-based limits. It's kinda interesting that Jackson didn't sign on, here, but it's probably just her reading Barret's history here as more focused on the pre-1950 era.
  • Sotomayor wrote for the liberals, arguing in favor of looking more at judicial precedent. It's also conveniently pointing to the height of progressive control of the courts, but the bigger motivation is just blasting at historical analysis: there's a ton of cites, not always in context, about other complaints about it (even to an amici in Rahami). There's ways to read it as more compelling than 'stare decisis of the Warren Court', but they're pretty hard to get to.

This part of a longer and larger conversation on an originalists-versus-formalists-versus-progressives-trying-to-figure-out-a-principle thing, but I don't expect it to take a very memorable part of that.

Garland v. Cargill is... disappointing.

Especially from the left branch. I was kinda hoping for a Caniglia, here: not only was the bump stock ban a Trump act, it just touched on so many matters that should appall the progressive side of the branch, and they still (and it's a pretty nakedly partisan Sotomayor opinion that can't even get the facts right). It's not a Second Amendment case, and it wasn't a Chevron case, just bare statutory interpretation. Can the feds rewrite a law decades later with serious criminal penalties as punishment without involving an actual bill? Does the rule of lenity mean anything, if it doesn't apply where even regulating officials were apparently 'confused' by the text of the law?

I guess on the upside, I don't think even Sotomayor would condone a President unilaterally declaring thousands or tens of thousands of people into federal felons with nothing more than an APA notice, outside of a matter where she doesn't like it. But, uh, that's... not actually a compliment.

Alito signed off on federal laws banning machine guns -- no, he doesn't openly say he thinks it's constitutional, but it's very clearly why he wrote it. Which a) not a huge surprise, guess it's good to have the writing on the wall, and b) invites lower courts handling state assault weapons bans or other more arguable cases to read expansively.

Thomas' opinion is technically interesting (embedded images!) so yay.

But the biggest downside is just the procedural stance the whole thing got to SCOTUS in, and how little any member of SCOTUS seems to recognize that or try to cordon it off from repetition. As far as I can tell, no circuit court actually applied a preliminary injunction, most lower courts found for the government in increasingly-messy text, SCOTUS punted here on Aposhian v. Garland (2022), Gun Owners of Am., Inc. v. Garland (2022), Guedes v. ATF (2020), and even Hardin (I think?) end up in a bizarre indefinite stay. The Trump bump stock ban went into action 03/26/2019.

It's 2024.

Yes, no small number of people had boating accidents, often without owning a boat, and will be doing some impressive magnet fishing for aluminum. But this was a blatantly unlawful regulation, and in almost all of the United States, acting in accordance with that would leave you at serious risk of a long prison sentence for over five years. There's reason all the plaintiffs here were people who'd surrendered their stocks, and they're not alone. You'd be a moron (or hate your dog) not to! The ATF will have destroyed (or 'destroyed' into someone's private collection) any and all it received, no takebacks or cash-on-receipt; manufacturers have been driven out of business or moved into different fields; inertia gained ground.

Even prospective owners should consider, seriously, that all of those takings clause concerns and Second Amendment matters mean, at best, they'll be joining the landlocked boat club, and more likely that they'll be hung out to dry. They're inviting those threats in the future, and likely the near future.

Which is funny for bump stocks, but it's not like this has stuck to bump stocks.

Campos-Chaves v. Garland is... very Gorsuch.

The nexus for this case is that various government groups have been sending Notices to Appear with a Date of TBD, then sending the actual date later. The statute requires illegal immigrants to have a Notice to Appear with a specific date included (along with other information that seems to have actually been included) or a notice updating them after a change in proceedings.

This isn't as arbitrary a difference as it sounds at first glance -- illegal immigrants are more likely than citizens to miss individual papers, or be delayed receiving them, or have trouble with legal paperwork. And Campos-Chaves didn't appear before an immigration judge in 2005; if he was properly ordered removed at the time, he's still subject to removal; otherwise, he's eligible for discretionary relief from deportation (that he will almost certainly receive) under the 'continuous presence' rule.

((Though this does make Jackson's displeasure that the federal government did not behave better after SCOTUS gave notice in 2018 and 2021 rather uncompelling. His co-respondents aren't much better, here; Signh's NTA was issued in 2016 and repeatedly rescheduled, once due to Sighn's non-appearance, and Mendez-Colín was 2001 and he showed up to several immigration court appearances until it was clear he wasn't going to win (and was removed, probably 2005ish?).))

The law is written poorly, and I can see the potential for abuse: the strictest literal version would allow the state to send just a date and time, and not any of the other info, which has significant due process concerns. (As a pragmatic matter, it's not entirely clear why the government isn't just issuing the full I-862s with a rescheduling checkbox. Maybe privacy?)

But it doesn't seem like anyone has claimed the government has, or even wants to; both these cases and previous ones Jackson highlights seem more trying to get illegal immigrants out of custody quickly, even where the final hearing date isn't available. And from a pragmatic perspective, it's very far from clear that it would be better for ICE to issue I-862s with a knowingly false date, only to give a 'real' one later: it wouldn't change the stop-clock stuff, and obviously increase confusion. There are even some marginal cases where the government's arguments would lead to longer time being run before the 'stop-clock', compared to that counterfactual, though I doubt any would matter.

Jackson's position seems to be based on the argument that the update notices are always invalid without fully complete initial NTAs, and that they can't be said to have been issued at all. And at first glance that's not a crazy pragmatic matter. But it's a textual nightmare; it means the statute about update notices qualifying never applies.

Starbucks

Jackson's dissental is mostly trying to argue in favor of vastly increased deference to the NLRB -- while she says concurring in judgment, it's very hard to see her version of Winters as going against the NLRB, here. Probably under the assumption that, like a lot of Breyer's later work, it'll get cited as by lower courts as often as the opinion itself.

It's not a crazy argument -- Congress does often limit judicial review of some agency decisions, and it might even be reasonable in the NLRB's context -- but it's hilarious in contrast with her anti-Munsingwear takes.