To me this always comes back to stupid or evil. Either Roberts knows what he's doing and he's evil or he's a professionally incurious dolt and has no idea whatsoever.
It's evil. The Republicans, politicians and voters, lost the benefit of the doubt after Bush.
Ignorant or evil, stupid allows for good aims to fail because they were badly done, but ignorant insists you learn from them. No excuse for either, though you can be wrong.
I don’t think it is an exaggeration to condemn this ruling as one of the worst in the Court’s history and this law professor from the University of Chicago explains why.
This is the part I'm still not clear on
The Supreme Court framed its inquiry as an application of what is called “rational basis” review. But even when it uses a rational review lens, the Court has in the past been willing to see a discriminatory policy for what it truly is. Not so today.
Why did they do that?
Do they vote on how to review it beforehand, or is there some precedent based on the nature of the questions before them?
Standards of review generally follow principles laid down through precedent. The basic levels are rational basis review, intermediate scrutiny, and strict scrutiny (with a particular statute or law becoming less likely to survive as the standard increases, leading to phrases like "strict in principle, fatal in application").
Rational basis review is for things like economic classes and requires some rational connection to a legitimate government interest.
Intermediate scrutiny requires a policy to achieve important governmental objectives and is substantially related to the achievement of those objectives. Intermediate scrutiny is for historically disfavored classes that are not historically included in strict scrutiny (generally race is the focus of strict scrutiny). So for intermediate scrutiny, there is a four part test: 1) a history of invidious discrimination against the class, 2) characteristics that distinguish a typical class member’s ability to contribute to society, 3) that the distinguishing characteristic is beyond the class member’s control, and 4) political power of the class. Sex and gender tend to fall under intermediate scrutiny.
Strict scrutiny is actually derived from Korematsu and has a three part test: 1) compelling government interest, 2) narrow tailoring to achieving that interest, and 3) the least restrictive method of achieving that interest. Race tends to fall under strict scrutiny. It can be very hard to achieve the second and third prongs of the test.
In Trump v. Hawaii, I believe that Muslims, as a class, are closer to a racial group than a sex/gender group or economic class. So I would have applied strict scrutiny and struck it down for failing narrow tailoring and least restrictive (obviously over/underinclusive, less restrictive alternatives like more vetting or monitoring). Even under rational basis review, given the paucity of national security evidence presented and the plethora of discriminatory statements by Trump and his officials, the actual government interest being pursued was invidious discrimination against a religious group. This is not a legitimate government interest, thus the policy should fail rational basis as well.
By deferring so substantially to executive branch claims of national security concerns, without any clear evidence of said concerns, the Roberts court basically parroted Korematsu's reasoning despite its protestations to the contrary. It's vile and enraging, yet somehow unsurprising.
I miss the timeline where we have Justice Garland concurring in a majority decision authored by Sotomayor.
Doesn't this mean that they effectively replaced the strict scrutiny in Korematsu with the lower standard of rational basis?
every person who doesn't like an acquired taste always seems to think everyone who likes it is faking it. it should be an official fallacy.
the "no true scotch man" fallacy.
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HakkekageSpace Whore Academysumma cum laudeRegistered Userregular
They did not. The rationale for applying a rational basis test was based purely on the presidents authority to set immigration and national security policy. Roberts basically dealt with the issue of Muslim targeting by dismissing it as a side issue. After all he only got EIGHT PERCENT OF THE WORLDS MUSLIMS. He also allowed the government’s Ban 3.0 fig leaf of including North Korea and Venezuela to serve as an impenetrable defense against claims of animus against Muslims.
They did not. The rationale for applying a rational basis test was based purely on the presidents authority to set immigration and national security policy. Roberts basically dealt with the issue of Muslim targeting by dismissing it as a side issue. After all he only got EIGHT PERCENT OF THE WORLDS MUSLIMS. He also allowed the government’s Ban 3.0 fig leaf of including North Korea and Venezuela to serve as an impenetrable defense against claims of animus against Muslims.
Sotomayor pointed out that 1) North Koreans are basically already banned 2) the Venezuelan ban really only affected a small number of families in the ruling clique.
Self-righteousness is incompatible with coalition building.
I don’t think it is an exaggeration to condemn this ruling as one of the worst in the Court’s history and this law professor from the University of Chicago explains why.
This is the part I'm still not clear on
The Supreme Court framed its inquiry as an application of what is called “rational basis” review. But even when it uses a rational review lens, the Court has in the past been willing to see a discriminatory policy for what it truly is. Not so today.
Why did they do that?
Do they vote on how to review it beforehand, or is there some precedent based on the nature of the questions before them?
You're trying to reason this out in the wrong direction. They started with the result they wanted and went backwards from there. They applied their review standards in the way that would allow them to endorse the GOP position.
Call it a technical curiosity, I guess? I genuinely have no idea why or how a particular review standard is applied to a case.
I'm also still baffled as to what the remand entails here, and why they couched so much in "not likely to succeed" as though they were not actually making a judgement on the case itself.
I saw some chatter suggesting Hawaii et al declined to wait on the injunction until they had more solid standing from a plaintiff who was denied a waiver; so is it remanded and mooted?
But don't they usually say that? All of the question marks.
The Supreme Court has developed rules over time for which standards should apply to different situations
Establishment-clause challenges, based on the case law, usually use their own special standard: you ask whether a reasonable observer would conclude the government is endorsing or disfavoring a particular religion
Here the majority, in a footnote, uses the there's-no-rule-that-says-a-dog-can't-play-basketball argument to explain why, instead, they are applying a much more lenient standard that doesn't normally govern establishment-clause claims: "The dissent can cite no authority for its proposition that [the usual standard] is appropriate . . . in the national security context[.]"
I made a game! Hotline Maui. Requires mouse and keyboard.
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Ignorant or evil, stupid allows for good aims to fail because they were badly done, but ignorant insists you learn from them. No excuse for either, though you can be wrong.
Standards of review generally follow principles laid down through precedent. The basic levels are rational basis review, intermediate scrutiny, and strict scrutiny (with a particular statute or law becoming less likely to survive as the standard increases, leading to phrases like "strict in principle, fatal in application").
Rational basis review is for things like economic classes and requires some rational connection to a legitimate government interest.
Intermediate scrutiny requires a policy to achieve important governmental objectives and is substantially related to the achievement of those objectives. Intermediate scrutiny is for historically disfavored classes that are not historically included in strict scrutiny (generally race is the focus of strict scrutiny). So for intermediate scrutiny, there is a four part test: 1) a history of invidious discrimination against the class, 2) characteristics that distinguish a typical class member’s ability to contribute to society, 3) that the distinguishing characteristic is beyond the class member’s control, and 4) political power of the class. Sex and gender tend to fall under intermediate scrutiny.
Strict scrutiny is actually derived from Korematsu and has a three part test: 1) compelling government interest, 2) narrow tailoring to achieving that interest, and 3) the least restrictive method of achieving that interest. Race tends to fall under strict scrutiny. It can be very hard to achieve the second and third prongs of the test.
In Trump v. Hawaii, I believe that Muslims, as a class, are closer to a racial group than a sex/gender group or economic class. So I would have applied strict scrutiny and struck it down for failing narrow tailoring and least restrictive (obviously over/underinclusive, less restrictive alternatives like more vetting or monitoring). Even under rational basis review, given the paucity of national security evidence presented and the plethora of discriminatory statements by Trump and his officials, the actual government interest being pursued was invidious discrimination against a religious group. This is not a legitimate government interest, thus the policy should fail rational basis as well.
By deferring so substantially to executive branch claims of national security concerns, without any clear evidence of said concerns, the Roberts court basically parroted Korematsu's reasoning despite its protestations to the contrary. It's vile and enraging, yet somehow unsurprising.
I miss the timeline where we have Justice Garland concurring in a majority decision authored by Sotomayor.
the "no true scotch man" fallacy.
NNID: Hakkekage
Sotomayor pointed out that 1) North Koreans are basically already banned 2) the Venezuelan ban really only affected a small number of families in the ruling clique.
The Supreme Court has developed rules over time for which standards should apply to different situations
Establishment-clause challenges, based on the case law, usually use their own special standard: you ask whether a reasonable observer would conclude the government is endorsing or disfavoring a particular religion
Here the majority, in a footnote, uses the there's-no-rule-that-says-a-dog-can't-play-basketball argument to explain why, instead, they are applying a much more lenient standard that doesn't normally govern establishment-clause claims: "The dissent can cite no authority for its proposition that [the usual standard] is appropriate . . . in the national security context[.]"
I MEAN I GUESS