In a recent article, Joan Biskupic (citing anonymous Supreme Court sources) writes that Chief Justice Roberts changed his position after conference in the census case. While there is not much detail in the story, the basics are reminiscent of similar claims that the Chief Justice changed his position after conference in NFIB v. Sebelius. Why did he switch? That's what she would like to know.
I think there is far more interesting question that she does not ask. It's about the premise that there is something wrong about a judge changing his or her initial vote in a case. I know of no reason to think that there is something wrong about that. What would be wrong is for a judge to never change his or her initial vote after seeing the draft opinions. But a story titled, "Justice X never changes her mind after oral argument" will probably never be written.
I was not aware there was an argument is "something wrong" about changing the initial vote. That regularly happens. At best, like the last time, there is some assumption the reason might be problematic. Or, informative.
ReplyDeleteThere is plenty wrong with a justice who repeatedly changes his mind from enforcing the law to pleasing the progressive legal establishment.
ReplyDeleteChief Justice “Balls and Strikes” is the new Kennedy.
Appointment of a real fifth umpire will have to wait until God calls the Notorious RBG home to her reward.
Hear hear.
ReplyDeleteWhat's amazing is that four Heritage Foundation approved justices were still dedicated to going along with the farcical administration arguments after the question's actual history a la Hofeller, Bannon, et al., had been revealed. The Supreme Court, like all and probably more so of DC's institutions, has to give some mind to its legitimacy, luckily in that regard Roberts was able to pull himself away from his usual partisan hack inclinations to do so in this instance.
ReplyDelete"from enforcing the law"
ReplyDeleteThe law in question here was the APA, and it was the conservatives who didn't want to enforce it. Rather they wanted to rely on judicial norms of not prying or focusing on executive official's actual reasoning and instead just casually accepting whatever pretext is tossed up by executive officials. In this case the pretext was so laughable and the record increasingly made it untenable to accept that the Court would have been made to look more ridiculous than usual in this area to adopt its usual course of following judicial norms here, so Roberts action helped salvage some measure of legitimacy here.
Mr. W:
ReplyDeleteThe progressive argument courts should bar the elected government from exercising a perfectly legal power because progressives view the government's intent as malign is one of their most facially absurd and totalitarian.
Roberts was absolutely correct in ruling that state legislatures are free to exercise their plenary power to district even if their intent is to gain partisan advantage. Such is the nature of a representative democracy in which voters organize themselves into political parties.
This makes Roberts change of opinion barring the elected government from asking a perfectly legal question in the census because a POTUS appointee offered a pretext rather than admitting he was acting to gain partisan advantage both wrong as a matter of law and grossly hypocritical.
Again, Thomas gives away Bart's game in his opinion: "The Court’s holding reflects an unprecedented departure from our deferential review of discretionary agency decisions." Though the APA *as written* (as Bart likes to invoke, when it suits him and his blindly partisan interests) requires *no such thing* the conservatives went into an apoplectic fit at the idea that Roberts and the liberals wouldn't just accept Ross' increasingly laughable and untenable rationale.
ReplyDeleteThat Bart would straight faced try to argue that a court not contenting itself with gullibility towards the motives of a government's actions as *totalitarian* (!) just demonstrates, with a fat, red, juicy cherry on top, how bass-ackwards and warped by partisan interests his, and most conservatives these days, views on this subject are.
As an aside, since he brought it up, an extra laugh is warranted at the argument that only political remedies are possible to the practice of *gaming the political system*.
ReplyDeleteMr. W:
ReplyDeleteYou very well know from my posts here that I categorically reject court rubber stamping of illegal government act in the name of "deference." This is the flip side of the totalitarian coin where courts strike down perfectly legal government act.
Either the government act is legal or it is not - period.
Thomas of all people should know better than to engage in this progressive label play.
Any true 'libertarian' worth their salt would NEVER accept a principle that courts should engage in "deferential review of discretionary agency decisions." Indeed, in his pontificating here Bart has (when he thought this would favor his chosen party) said many times before that Courts should invoke a strong, anti-deferential 'presumption of liberty' approach to government action (a presumption which, of course, finds NO ground in the 'law as written' I should add). What occurs here is pure, pellucid, partisan hackery.
ReplyDeleteRoberts was, at first, dispositioned to follow this rule, but subsequent revelations made Ross' position more and more untenable/ laughable (even Bart concedes it was purely pretext). Not wanting US law to be the head mule in a parade of the 'law is an ass' Roberts rightfully came up with a different approach.
Mr. W: As an aside, since he brought it up, an extra laugh is warranted at the argument that only political remedies are possible to the practice of *gaming the political system*.
ReplyDeleteBetter the remedy of elected representatives than of unelected courts and other bureaucrats.
One of the fundamental differences between classical liberalism and totalitarianism.
"I categorically reject court rubber stamping of illegal government act in the name of "deference."
ReplyDeleteNo, you don't. As is exhibited here where you advocate the rubber stamp because it seems to momentarily serve your party. Ross' pretext cannot satisfy the APA (and, which Roberts save it from, the EPC).
"of elected representatives"
ReplyDeleteIn a system they gamed? Lol!
Mr. W: Courts should invoke a strong, anti-deferential 'presumption of liberty' approach to government action (a presumption which, of course, finds NO ground in the 'law as written' I should add).
ReplyDeleteStrawman.
We are discussing whether courts act contrary to the law when they enjoin the government from engaging in a perfectly legal act - in this case asking a question during the census. Asking a question does not infringe on anyone's liberty.
Mr. W: As an aside, since he brought it up, an extra laugh is warranted at the argument that only political remedies are possible to the practice of *gaming the political system*.
ReplyDeleteBD: Better the remedy of elected representatives than of unelected courts and other bureaucrats.
Mr. W: In a system they gamed? Lol!
A very totalitarian dismissal of representative democracy.
Voters are free to fire and replace elected representatives any time they please, something they cannot generally do with courts and bureaucracies.
"Voters are free to fire and replace elected representatives any time they please"
ReplyDeleteNot when said representative have gamed the system in their favor.
This is like someone complaining about, say, the National champion University of Clemson being given power over NCAA football rules, being rebutted with 'well, if you beat Clemson then you can change the rules!"
I again find the OP mistaken.
ReplyDeleteAs to agency discretion, I personally think it is warranted to give them some form of reasonable deference. This is an ongoing dispute that was raised in multiple cases with the conservatives (especially Gorsuch) rather concerned that the traditional rules in place were too deferential.
There are now various reasons for deference not to be as broad such as clear error (paraphrasing), clashing with constitutional rights and as Roberts noted simply no rational grounds for the reasoning in place. The census case (like the travel ban) raised both agency and individual rights concerns.
It is shall we say interesting the conservatives were so laissez faire on agency discretion here. Anyways, again, the question wasn't asked perhaps since no one really thinks it is wrong as a general matter to change your mind. WHY he did so is interesting while at least in the ACA case there was some concern (as seen from Volokh Conspiracy chatter at the time) of some illegitimate pressure (bogus imho).
[I realize Gorsuch in his book tour remarks doesn't like the term "conservative" but you know I find him full of it. So, you know, okay.]
ReplyDeleteBD: "Voters are free to fire and replace elected representatives any time they please"
ReplyDeleteMr. W: Not when said representative have gamed the system in their favor.
In what nation do you live?
Regardless of partisan districting and immigration flows, partisan advantage never lasts and partisan support constantly changes.
My middle aged lifetime has seen the electoral map almost completely change and changing partisan coalitions of voters changing the partisan control of the House of Representatives.
This is why progressives need unelected judges and bureaucrats overruling voters.
This is like someone complaining about, say, the National champion University of Clemson being given power over NCAA football rules, being rebutted with 'well, if you beat Clemson then you can change the rules!"
ReplyDeleteOr it's like Jim Crow -- all those people disenfranchised by the various state laws were at fault for failing to vote out the bigots.
Mark:
ReplyDeleteWhat do judges enjoining a perfectly legal act like asking a census question, applying to everyone and harming no one, have to do with Democrat racist governments preventing African Americans from voting? Apart from maybe advancing the power of Democrats?
Hard to know whether to chalk this up to ignorance or dishonesty.
ReplyDeleteThe intent and goal of adding the citizenship question was to boost the voting power of 'Republicans and Non-Hispanuc Whites."
https://slate.com/news-and-politics/2019/05/thomas-hofeller-secret-gerrymandering-files-north-carolina.html
This of course was the effect experts (https://www.washingtonpost.com/local/social-issues/statistics-expert-testifies-census-citizenship-question-would-harm-count/2018/11/05/ee0a489a-e144-11e8-b759-3d88a5ce9e19_story.html), the Census staff and anyone with a cursory understanding of human behavior not warped by partisan blinders predicted.
Mr. W:
ReplyDeleteMore race card bull sh_t.
For a generation, Democrats have been leveraging immigrants - legal and increasingly illegal - to: (1) increase the voting power of Democrat voters in immigrant heavy blue districts and (2) increase the population based welfare state and infrastructure payments blue cities and states received from the federal government.
For those following who are not up to speed on the first leverage point, allow me to offer an example. Let's postulate two districts: a blue district with 25% Democrat voters, 24% Republican voters and 51% non-citizens and a red district with 51% Republican voters and 49% Democrat voters. Half as many Democrat voters choose a single representative in the blue district than it takes Republicans to choose a representative in the red district. Various estimates have the Democrats using this leverage point to gain up to a dozen representatives they otherwise would not have.
The Republicans have recently started a push to eliminate this leverage point by districting by citizenship rather than population. A couple years back, GOP groups sued Texas arguing that districting by population violated the one man, one vote principle. The Supremes did not buy the argument, but did suggest in dicta that districting by citizenship would pass constitutional muster.
Thus, the Trump administration proposed a citizenship census question which would significantly facilitate districting by citizenship.
After Roberts changed his mind (yet again) from enforcing the law to supporting the Democrat position of the legal establishment to enjoin the question, the Trump administration tacked to take the effort entirely out of the Supreme Court's pond when the POTUS issued an order allowing Census to access data across the Federal government to make the citizenship determination.
Trump's decision is potentially more far reaching because the citizenship question did not inquire into legal status, where a comparison between the census responses and the federal data very well could identify the locations of every illegal alien residing in the US.
Republicans play ideological hardball but at times feel a need to pretend to be principled. The path of looking like phonies though human nature is to be angry and disdainful of it too as seen on this blog at times.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteNow he's veered from dishonest/ignorant to rambling non sequitur.
ReplyDeleteWhat we know is that the intent and effect of the citizenship question was to increase the voting power of Non-Hispanic whites at the expense of minorities via an undercount. The GOP expert and architect of putting the question on intended and predicted this and every other expert could see that would be the effect. Talk about race card bs indeed!
This was likely why Ross offered a laugh burger of a pretext. Conservatives like Bart wanted the Court to ignore the law as written and instead rely on an unwritten judicial norm of blind deference to the executive officials. Due to the growing evidence that the pretext was ridiculous, unserious and harmful to the mandate of the law Roberts quite rightly chose to uphold the law as written rather than make a Court that already gives too much in mandated deference look completely like an ass where everyone other than complete partisans could see the pretext was laughable and the real intent likely something even worse than arbitrary and capricious (indeed, it looks like a flat out attempt to violate equal protection of the law).
It's also important to note that the law as written explicitly directed the counting of and apportionment by *Persons* which are clearly =/= to citizens (see 14th Amendment). But Bart doesn't care about the law as written.
ReplyDeleteMr. W: What we know is that the intent and effect of the citizenship question was to increase the voting power of Non-Hispanic whites at the expense of minorities via an undercount.
ReplyDeleteSeriously, try engaging your brain before repeating facially inane Democrat media propaganda points.
Using my hypothetical high immigrant district (51% non-citizen, 25% Democrat and 24% Republican) as an example, the only way districting by citizenship reduces the voting power of "minorities" within this district is if the non-citizen majority is both a "minority" and illegally voting. Even if you assume the Democrats in this district are all "minority" and the Republicans are all "Non-Hispanic whites" (a completely mythical population), the "minority" Dems actually gain more voting power than the Republican "Non-Hispanic whites"
If you are looking at the national voter population, districting by citizenship increases the voting power of all citizens equally.
The only population which loses voting power they never should have leveraged are Democrats, for the reasons I noted above.
Mr. W: It's also important to note that the law as written explicitly directed the counting of and apportionment by *Persons* which are clearly =/= to citizens (see 14th Amendment). But Bart doesn't care about the law as written.
The Constitution does not define "persons" for the purpose of districting. Because we have never included legally visiting or illegally invading foreign citizens in our census of our people for self-evident reasons, then "persons" when used in this context must by subtraction refer to US citizens.
I am well aware of contrary court rulings. We are discussing only the Constitution as written in para materia with the rest of the document and as applied historically.
The race based language about whose voting power is increased ('Non-Hispanic Whites') is a direct quote from the GOP expert and architect of inclusion of the citizenship question. If you want to cry 'race card' see him and your party that followed him.
ReplyDeleteThe Constitution doesn't have to define Persons for us to know it does not mean citizens, as in other areas the Constitution uses the words in ways they could not be synonyms.
This is just another of your attempts to ignore the law as written in favor of a partisan policy preference you have.
Let's recall that *in the very same amendment* in which you find the directive to apportion and count the whole number of *Persons* the text explicitly distinguishes between *persons* (whom it warrants due process and equal protection rights to) and *citizens* (to whom privileges and immunities apply). Heck, in one and the same clause, the Birthright Citizenship Clause, the text indicates that citizens are a sub class of persons!
ReplyDeleteBart's argument is that when the writers and ratifiers moved from distinguishing *explictly* between citizens and persons *four* times in Sec 1 they then suddenly meant a new sense of persons indistinguishable from citizens in Sec 2! There is of course no *textual* reason to think such a thing. To call it contrived is to give it too much credit.
But we're all aware of Bart's disdain of the law as written and his tendency to favor writing his partisan policy preferences into the law instead...
Mr. W: "The intent and goal of adding the citizenship question was to boost the voting power of 'Republicans and Non-Hispanic Whites." https://slate.com/news-and-politics/2019/05/thomas-hofeller-secret-gerrymandering-files-north-carolina.html"...The race based language about whose voting power is increased ('Non-Hispanic Whites') is a direct quote from the GOP expert and architect of inclusion of the citizenship question.
ReplyDeleteThe only passage you through slate directly quoted from the "GOP expert" is "'Republicans and Non-Hispanic Whites." Hint: Direct quotes are generally bracketed with quotation marks.
In any case, the fact this facially inane Democrat media propaganda point cherry picked a sentence fragment from a "GOP expert" does not make it any less facially inane for the reasons I noted.
Remember, I am not suffering under your handicap of filtering out reality through the lens of "my party right, your party wrong." I view the GOP as a very factually challenged lesser of two evils. Even if your Slate statement was correct as written, it only means both parties (as is often the case) are wrong.
This comment has been removed by the author.
ReplyDeleteMr. W: The Constitution doesn't have to define Persons for us to know it does not mean citizens, as in other areas the Constitution uses the words in ways they could not be synonyms.
ReplyDeleteI agree the various drafters of the Constitution probably used the term "person(s)" in various parts of the Constitution in ways which would not be limited to citizens, which is why I limited my observation above to then census and districting from that census.
Do you doubt that every one of these drafters would have excluded legally visiting and illegally invading foreign citizens from the census?
Sure Bart, the drafters used the word 'persons' to mean something different than 'citizens' four times in Sec 1 of the 14th Amendment but then in the very next section of the same amendment they suddenly shifted to a use of persons that just meant citizens. That makes total sense!
ReplyDeleteYou're embarrassing yourself here in your attempt to once again replace your partisan policy preferences with the law as written.
"Even if your Slate statement was correct as written, it only means both parties (as is often the case) are wrong."
ReplyDeleteTypical conversation with Bart, who started this with 'what could the citizenship question possibly have to do with the Jim Crow election policies of the Democrats who are the real racists?' Once pointed out to him that the architect of inclusion of the question indicated the effect would be to boost 'advantageous to Republicans and Non-Hispanic Whites' (hmm, that does have something in common with those long dead Democrats it seems!) he reverts to 'well, both sides do it maybe but I never liked either side so much!'
It would be somewhat unbelievable if it weren't so consistently evidenced here.
A broader point here: I'm not entirely unsympathetic to Bart's political philosophy concern. Having non-citizens here contrary to law play a significant role in the ordering of our political apparatuses is a legitimate concern. What's mockable is the idea that the Constitution as written doesn't provide a big roadblock in how to deal with that. An honest conservative who said 'this is a problem but since the most natural reading of the relevant text is pretty clear we should work to 1. Clear out illegals using constitutionally permissible means or 2. Amend the Constitution here." would have a good point.
ReplyDeleteof course a conservative who did not constantly and in bumper sticker slogan form always argue that the Constitutions language is easily, facially clear and atextual concerns are treasonous could always argue that the text often gives us a rough principle that must be read within the context of function, result, etc.,would also have a good case to make.
But that's not the conservative we have. We've got Bart.
Mr. W: Typical conversation with Bart, who started this with 'what could the citizenship question possibly have to do with the Jim Crow election policies of the Democrats who are the real racists?' Once pointed out to him that the architect of inclusion of the question indicated the effect would be to boost 'advantageous to Republicans and Non-Hispanic Whites'
ReplyDeleteAs with our typical conversations, you begin lying when cornered.
(1) Our conversation started hours before I responded to Mark's observation "Or it's like Jim Crow -- all those people disenfranchised by the various state laws were at fault for failing to vote out the bigots" with the following questions: "What do judges enjoining a perfectly legal act like asking a census question, applying to everyone and harming no one, have to do with Democrat racist governments preventing African Americans from voting? Apart from maybe advancing the power of Democrats?"
(2) Mark's observation had nothing to do with your cut and paste from Slate, which you misrepresented as a "direct quotation" from a "GOP expert."
(3) Then, you topped it off by misquoting me.
Now you will attempt to deflect with straw men, heaps of red herring and perhaps more lies.
So predictable.
This comment has been removed by the author.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteSorry Bart, but this is a recorded record we're dealing with, and this current aside happened in exactly the order I described. I simply invite any wanting to put it to the test to scroll up to Marks comment about Jim Crow election policies. It's immediately followed by your asking what the citizenship question has to do with Jim Crow Democrats election policies and that's immediately followed with me presenting evidence that both involved attempts intended and expected to boost White voting power. And your ultimate response is fairly described by me (well I don't like both sides of this both-sider-ism!). You can't wish away the plain record preserved here
ReplyDeleteLast note: notice that Bart can't muster a single *textual* reason to read persons as citizens in Sec 2. There's lots of textual reasons to do otherwise (all that stuff in Sec 1 clearly treating the two as distinct). But no reason can be offered *from the text.*
ReplyDeleteInstead Bart's concern a la political philosophy is one of function and result: it's just absurd to think the drafters wanted or government to function in and produce the result of what we can *atextually* argue seems wrong, absurd and harmful to this project that is the U.S. It's not that that's not an intellectually coherent and responsible way to argue about the Constitution, it's that it's the way Bart routinely condemns (well, when he's not contradicting himself for partisan policy preference as commonly also happens). He's basically aping Justice Breyer's philosophy but in complete denial about it.
Mr. W:
ReplyDelete"Person(s)" is a general term similar to "due process." The term begs the question: What persons?
Answering that question to include any human being within the national borders beggars common sense. As I noted in my rhetorical question which you understandably avoided, no drafter or ratifier of the Constitution or subsequent Congress included legally visiting or illegally invading foreign citizens in any census of persons. Why would they?
With the nonsense of defining a census of persons to include all human beings within the borders easily discarded and assuming census persons must, at minimum, include citizens; we could have a reasonable discussion concerning whether Congress may include foreign citizens which Congress authorized to become legal residents in a census.
Proceed, if you wish.