Lawyerly law stuff that's interesting




The Gerrymandering case has the potential to bring America back from the brink if they make the right choice.


For the next time some nit-wit tells you “hate speech isn’t free speech.”


Expect a flood of “humorous” applications from the Alt-Right very soon.


Huge case. Fingers crossed.

In a 1986 case, Davis v. Bandemer, the Court announced that it could hear such cases (in technical legal terms, that the cases are “justiciable”), but it set forth a standard that was so hard to meet that there was never a successful claim. The Court reconsidered the issue in the 2004 case of Vieth v. Jubelirer. Four conservative justices, led by Justice Antonin Scalia, held that such claims were “nonjusticiable,” meaning that the Court could never hear such cases because there was no standard to separate permissible from impermissible consideration of party. The four liberal justices on the Court issued four separate opinions each setting forth a different standard which could be used to police the lines. Kennedy alone stood as the man in the middle, agreeing with the liberals that courts could hear these cases, but agreeing with the conservatives that each of the standards the liberals proposed, as well as a slightly different standard proposed by the plaintiffs in Vieth, were lacking. Kennedy suggested further consideration of the issue, looking perhaps at history, at analysis aided by technology, and at the First Amendment, which prevents certain government action that punishes people based on their partisan affiliation.


OMG! Is this Cleve Blakemore’s wife?


I would not get your hopes up here.



UPDATE: In an ominous sign for opponents of gerrymandering, the Supreme Court issued a party-line decision staying the lower court’s decision in Whitford, which struck down the Wisconsin maps.

McConnell’s gambit is going to pay off for Republicans for decades to come.


Stays are pretty common when cert is granted. Basically goes with the whole “we’re reviewing this” bit.


Oh. Ok, thanks.

(Just feeling particularly pessimistic today.)



Where it’s easier to own a gun than get coverage for mental health.
Where possession of marijuana gets you a seventeen year sentence
and sexual assault a fine for $200.
Where covering a protest can result in seventy five years in jail, but getting acquitted for killing a black person because “you’re scared” is normal.


This honestly should have been a more prominent point of Clinton’s campaign.
“Vote for me, because Jeff Sessions will make it harder to get weed.”

Could have turned out the youth vote much more effectively.


In which Missouri actually does something right but is shot down by SCOTUS. (This ruling also informs us that Goresuch is going to be in lock step with Clarence Thomas, joy.)

Justice Sotomayor’s dissent makes a powerful argument that the effects of this case will be much greater than Roberts implies. This case was about the relationship between church and state, and as Sotomayor observes, “The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.”

The implication of the majority’s holding is that Missouri is unfairly discriminating against religious institutions. But as Sotomayor argues, this is an erroneous characterization of Missouri’s motives and the core purpose of the First Amendment. Withholding taxpayer money from religious institutions does not represent animus against religion or deny individuals their right to worship (or not worship) as they see fit.


Everyone kept saying Gorsuch was an originalist, but he feels a lot more like a textualist, which is… horrible imo.

That’s how you end up with a million regulations for the stupidest shit as lawmakers try to think of every loophole and exemption and account for them.


The alternative though is that laws are inconsistently enforced based on whoever is doing the enforcement.


So instead we end up with a situation where others can abuse and do violence to the spirit and intend of the law by playing this game of ‘this is not literally and explicitly included, even though by all rights and common sense it should be, so nyeh nyeh sucks for you’.


Well, I think that it’s possible to write good, concise laws. Requiring that the law specify its intent clearly in its actual text is really not some kind of herculean task.


But we have examples of Gorsuch himself taking a law that had a clear intent and purpose, and ruling against said intent due to the exact specifics not being explicitly covered under said law. Which is the problem with strict textualism, it often comes across as the annoying guy in a D&D campaign who uses trickery and wordplay to do things that clearly violate the spirit of the rules, but if you squint hard enough, and are enough of a pedant, can almost sort of justify doing absurd things. They’re basically like this guy

His ruling about the truck driver is one such example.


Honestly, I don’t think it’s super clear that what the driver did, while certainly common sense for the driver, was really an act of a whistleblower.