Gorsuch's angle on this is really interesting to me for the LGB portion of the case:
If you're a woman and you're romantically or sexually interested in men, that behavior is fine, but if you're a man and that's true, it's a problem? Framed that way, you don't even need to wonder whether the law intends to protect sexual orientation because it's just plain old gender discrimination.
Gorsuch's angle on this is really interesting to me for the LGB portion of the case:
If you're a woman and you're romantically or sexually interested in men, that behavior is fine, but if you're a man and that's true, it's a problem? Framed that way, you don't even need to wonder whether the law intends to protect sexual orientation because it's just plain old gender discrimination.
My recent light reading has pointed out this was like from the very first gender discrimination cases. Like they were nominally about women who didn't act very feminine but also codes and some things not talked about openly at that time.
Gorsuch's angle on this is really interesting to me for the LGB portion of the case:
If you're a woman and you're romantically or sexually interested in men, that behavior is fine, but if you're a man and that's true, it's a problem? Framed that way, you don't even need to wonder whether the law intends to protect sexual orientation because it's just plain old gender discrimination.
Yes, which is how it has been interpreted to provide those protections. The question is how many Justices are able to understand basic reality, and odds are good it will only be either 4 or 5.
Normally, I don't think they would hear the case. There's not really any good question about the law here, no conflicting rulings or precedent. However, I can't be sure that enough of the chuckleheads on SCOTUS wouldn't want to rule on it or at least buy Trump a super long delay.
Normally, I don't think they would hear the case. There's not really any good question about the law here, no conflicting rulings or precedent. However, I can't be sure that enough of the chuckleheads on SCOTUS wouldn't want to rule on it or at least buy Trump a super long delay.
It might buy him a delay, but even with this court I think he’ll lose, his lawyers are quite literally arguing that Trump is above the law.
I would love for this to backfire on him and have the SC firmly rule that the President is subject to the law, and so the memo from OLC is bullshit that nobody should abide by anymore.
Trump will probably lose this in the end although I get the argument. Who watches the watchers etc. Do we want the sitting executive to be fighting this sort of thing while they are in office. Impeachment is simple in theory since elected officials are getting rid of an elected official. Trump is a bit sui generis since he's the first billionaire (sic) to be elected. Instead of state level investigations, I'd prefer a constitutional amendment requiring candidates to being open books and if they are rich, putting their entire fortune in a conservatorship (no family members) during their term.
“Reject your sense of injury and the injury itself disappears.”
― Marcus Aurelius
If SCOTUS decides to hear it it's either going to be 5-4 in the President's favor or 6-3/7-2/8-1 against him as the Supremes want to make a point of telling him to get fucked.
If it would break 5-4 to the liberals because Roberts has a longer view then protecting this chud they'll probably just not grant cert.
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Would this not set the precedent for "President is the Executor of the Law, and is therefore not/but is still Subject to the Law."?
This is already the case in a lot of ways since the President is "the law" so to speak. It is a much thornier problem in the long run than getting a good immediate outcome. Imagine a hyper polarized US. If states have jurisdiction over Presidents, the electorate as a whole is disenfranchised. The electoral college is already problematic. Imagine a single state being able to overturn a national election. It won't end well. Not sure what the equilibrium is but it definitely seems to differ from the status quo. Interesting times.
“Reject your sense of injury and the injury itself disappears.”
― Marcus Aurelius
This one is super specific because it's not The President.... this is about giving 1) a nonpartisan grand jury info about 2) a personal matter concerning someone who was 3) a private citizen during the time in question.
There ought to be no Presidential question. This is very narrow.
This one is super specific because it's not The President.... this is about giving 1) a nonpartisan grand jury info about 2) a personal matter concerning someone who was 2) a private citizen during the time in question.
There ought to be no Presidential question. This is very narrow.
This makes sense transactionally, but are there knock on effects? SCOTUS will be worried about that. I'm with you in that I think the teeter totter will fall on the transparency side. But this isn't a slam dunk.
“Reject your sense of injury and the injury itself disappears.”
― Marcus Aurelius
If SCOTUS decides to hear it it's either going to be 5-4 in the President's favor or 6-3/7-2/8-1 against him as the Supremes want to make a point of telling him to get fucked.
If it would break 5-4 to the liberals because Roberts has a longer view then protecting this chud they'll probably just not grant cert.
They might take it just to delay as much as possible. I am not sure its possible to delay till next nov but if it is...
So this is the slow boring case of the two likely to hit SCOTUS over this issue. NY has agreed to put off trying to enforce this until any SCOTUS ruling is made. This means we're not getting results from this until like June or July.
The real big one is the Congress one who have made no such agreement. That's likely the case that will lead to a request for a stay and that right there is the big old deal.
Would this not set the precedent for "President is the Executor of the Law, and is therefore not/but is still Subject to the Law."?
This is already the case in a lot of ways since the President is "the law" so to speak. It is a much thornier problem in the long run than getting a good immediate outcome. Imagine a hyper polarized US. If states have jurisdiction over Presidents, the electorate as a whole is disenfranchised. The electoral college is already problematic. Imagine a single state being able to overturn a national election. It won't end well. Not sure what the equilibrium is but it definitely seems to differ from the status quo. Interesting times.
So this is the slow boring case of the two likely to hit SCOTUS over this issue. NY has agreed to put off trying to enforce this until any SCOTUS ruling is made. This means we're not getting results from this until like June or July.
The real big one is the Congress one who have made no such agreement. That's likely the case that will lead to a request for a stay and that right there is the big old deal.
1. With two of the subpoenas for @realDonaldTrump's financial records likely to make their way to #SCOTUS in the next 36 hours, I wanted to put together a detailed #thread walking through where we are and what happens next.
Apologies in advance, but this is going to get nerdy.
2. The first case is Trump v. Vance, arising out of a subpoena issued to Mazars by New York County (Manhattan) District Attorney Cyrus Vance. In that case, the President has asked the federal courts to issue an injunction barring Mazars from complying with a _state_ subpoena.
3. The district court refused to issue the requested injunction. Last Monday, the federal appeals court affirmed that decision, almost entirely because it concluded that President Trump did not have a substantial "likelihood of success on the merits."
assets.documentcloud.org/documents/6538…
4. But in that case, Vance agreed that he would not attempt to enforce the subpoena until #SCOTUS rules, so long as Trump filed his appeal (a "cert. petition") within 10 days of the Second Circuit's ruling (instead of the 90 days allowed under the rules). That deadline is today.
5. That means that, so long as Trump files today, there will be no emergency for #SCOTUS to resolve in the Vance case; it can address the cert. petition in "ordinary course."
Vance would have 30 days to respond (I doubt he'd use them all), and Trump would have 14 days to reply.
6. #SCOTUS usually decides whether to take up new cases at its regular "Conference." And after Friday, December 13, its next regular Conference isn't until Friday, January 10. So I think it's a good bet that _that's_ when the Justices would decide whether to take the Vance case.
7. A mid-January grant is just about the last moment the Court can typically add a case and still have it argued and decided during the current Term.
So if that happens in the Vance case, I think we'd be looking at oral argument in April, and a decision by the week of June 29.
8. The D.C. case, arising out of a subpoena from the House Oversight Committee to Mazars, is a bit trickier. As in New York, the district court rejected Trump's effort to bar Mazars from complying with the subpoena. And last month, the D.C. Circuit (by a 2-1 vote) agreed.
9. And yesterday, the Court of Appeals declined Trump's request to have the full court rehear his appeal:
assets.documentcloud.org/documents/6548…
But my understanding is that, _unlike_ in the Vance case, the House has _not_ agreed to hold off on enforcing the subpoena pending #SCOTUS review.
10. If that's correct, then Trump will not only likely _appeal_ that ruling to #SCOTUS, but he'll also likely first ask the Justices for a "stay," that is, an order freezing the status quo (and preventing enforcement of the subpoena) while that appeal is pending before the Court.
11. In general, a stay is an extraordinary remedy, and most applications for them are denied by the Court. Not only does the applicant have to convince five Justices that he is likely to prevail on the merits, but he has to show that, absent a stay, he'll suffer irreparable harm.
12. But as I've documented in a brand-new @HarvLRev essay, the Trump administration has asked for _far_ more stays from #SCOTUS than its predecessors (the next request will be the 22nd in less than three years)—and has received relief far more often:
harvardlawreview.org/wp-content/upl…
13. And an application for a stay tends to be resolved much faster than a cert. petition. So even though we may not know until January whether the Court will take the Vance case, we may know by Thanksgiving whether there are five votes to freeze the status quo for the time being.
14. Which leads to the most important point: There are plenty of reasons why a Justice who is otherwise inclined to vote against Trump on the merits might still want to freeze the status quo until the full Court can conduct plenary review.
But the reverse is not remotely true.
15. Thus, if #SCOTUS grants a stay in the D.C. case, I think all that we can reasonably conclude from that is that the Justices are likely to take one or both of these cases on the merits and decide them this Term—without any meaningful insight into how they'll ultimately rule.
16. But if the Court _denies_ a stay, even by a 5-4 vote, that would be a huge setback for Trump, and a pretty powerful sign that, whether the Court ends up taking one or both cases on the merits or not, the cases are quite likely to end with him losing.
What happens then?
17. It's easy to understand why folks might be worried about Trump defying an adverse #SCOTUS ruling in one of these cases.
But here, he's not the defendant; he's the plaintiff. And there's no reason to believe that Mazars, on the far side of such a ruling, wouldn't comply.
18. Of course, the damaging nature of the information sought in these subpoenas may end up paling in comparison to what's already public and what's coming out in the House hearings. But hopefully this helps put into perspective the legal steps as these cases get to #SCOTUS.
/end
Good bit of detail about the cert process that I didn't know.
Would this not set the precedent for "President is the Executor of the Law, and is therefore not/but is still Subject to the Law."?
This is already the case in a lot of ways since the President is "the law" so to speak. It is a much thornier problem in the long run than getting a good immediate outcome. Imagine a hyper polarized US. If states have jurisdiction over Presidents, the electorate as a whole is disenfranchised. The electoral college is already problematic. Imagine a single state being able to overturn a national election. It won't end well. Not sure what the equilibrium is but it definitely seems to differ from the status quo. Interesting times.
I think I disagree. It’s only a burden if you allow the process to be retarded (so avoid using norms instead of actual fucking rules).
I say let anyone and everyone be constantly trying to show the president is a criminal. Then just have an appointed cabinet position called something like “oversight compliance officer,” who’s job is to deal with all the filings. If the filings are BS grandstanding, then they can just file for dismissals or appeals. If the filings are real, then the appointee wiill eventually give testimony or provide documents to clarify what happened (after getting briefed by president).
Then just have some special rules about what level of proof/conviction/indictment is necessary before the president has to personally get involved.
But the answer definitely should not be “fuck it, president is above the law.”
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"The world is a mess, and I just need to rule it" - Dr Horrible
Associated Press:
Chief Justice John Roberts is ordering an indefinite delay in the House of Representatives’ demand for President Donald Trump’s financial records to give the Supreme Court time to figure out how to handle the high-stakes dispute.
Hunted down Amy Howe's twitter from over at SCOTUSBlog.
It's an administrative stay. SCOTUS gave the House lawyers until Thursday to respond to Trump's request to review. That's a day earlier than the House requested but SCOTUS has conference on Friday, so that could be why.
Okay. But honestly they should have dismissed it with an attached statement saying POTUS is not above the law and asking why the lawyers filing that shit shouldn't be sanctioned.
I get the formalities involved. But there's a line where the argument is so ludicrous you can just feed it right to the shredder.
Something like this was pretty much bound to happen to see if they want to take it up or not but the way thats stated seems not normal.
The opaque nature of everything means we can’t know for sure why anything is happening.
Personal take, stalling tactic. They can’t rule one way on the House request and another on the New York request. Probably arguing amongst themselves right now to determine whether they deny cert and slightly absolve themselves of responsibility to the Right, while also weighing how likely it is that POTUS will ignore a court order.
Something like this was pretty much bound to happen to see if they want to take it up or not but the way thats stated seems not normal.
The opaque nature of everything means we can’t know for sure why anything is happening.
Personal take, stalling tactic. They can’t rule one way on the House request and another on the New York request. Probably arguing amongst themselves right now to determine whether they deny cert and slightly absolve themselves of responsibility to the Right, while also weighing how likely it is that POTUS will ignore a court order.
Hunted down Amy Howe's twitter from over at SCOTUSBlog.
It's an administrative stay. SCOTUS gave the House lawyers until Thursday to respond to Trump's request to review. That's a day earlier than the House requested but SCOTUS has conference on Friday, so that could be why.
Yeah, it's the sort of thing that can sound ominous but can also just be legal phrasing being terrible.
We'll find out later in the week, but this also highlights the problem with the lack of faith in impartiality and institutions. I don't trust Roberts and his conservative colleagues on the Court, for demonstrable past actions surrounding the Court rather than just partisan sniping, and that preexisting lack of trust makes me look on this act with a more jaundiced eye.
it sounded like they were staying to hear from the house counsel so it seems more like normal expected stuff. There was about 0 chance the SCOTUS was not going to issue a stay until they decided if they wanted to take it up or not.
+1
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Something like this was pretty much bound to happen to see if they want to take it up or not but the way thats stated seems not normal.
The opaque nature of everything means we can’t know for sure why anything is happening.
Personal take, stalling tactic. They can’t rule one way on the House request and another on the New York request. Probably arguing amongst themselves right now to determine whether they deny cert and slightly absolve themselves of responsibility to the Right, while also weighing how likely it is that POTUS will ignore a court order.
Arent they asking a bank for the records?
Yes, the bank is the one being asked for the records.
According to WaPo, a new book out about Kavanaugh and the conservatization of SCOTUS, Justice Kennedy literally had a private meeting with Trump on the day of Goursch's appointment and told Trump to nominate Kavanaugh. Kavanaugh was NOT on the list of candidates being considered before this meeting.
SCOTUS didn't see its shadow today so at least a week more of Trump hiding his tax returns.
A bunch of orders I skimmed that all involve not taking on cases. Good to see that folks on SCOTUS think it's just peaches for a lawyer who unsuccessfully prosecuted a dude twice to later serve as a judge for that guys trial.
In more amusing news, one of the cases SCOTUS declined to hear was Mann v National Review, in which Mann sued NR for defamation when they claimed he'd committed academic fraud in his support of climate science.
Womp womp.
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In more amusing news, one of the cases SCOTUS declined to hear was Mann v National Review, in which Mann sued NR for defamation when they claimed he'd committed academic fraud in his support of climate science.
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If you're a woman and you're romantically or sexually interested in men, that behavior is fine, but if you're a man and that's true, it's a problem? Framed that way, you don't even need to wonder whether the law intends to protect sexual orientation because it's just plain old gender discrimination.
My recent light reading has pointed out this was like from the very first gender discrimination cases. Like they were nominally about women who didn't act very feminine but also codes and some things not talked about openly at that time.
Yes, which is how it has been interpreted to provide those protections. The question is how many Justices are able to understand basic reality, and odds are good it will only be either 4 or 5.
It's gross, but the attorneys are arguing from the angle of discrimination based on birth sex.
I hate it, and it might work.
So, here we go.
Donald Trump and his lawyers have asked the SCOTUS to hear a case regarding the President's Tax Returns.
The State of New York argues that the subpoena is legal, valid, similar ones have been enforced against countless other persons, etc.
The Attorney for the President argues that the President is the Executor of the Law, and is therefore not Subject to the Law.
Odds SCOTUS decides to hear the case?
If they hear it, odds they decide the President is above the law?
If so, is the ruling structured that only this one particular President is above the law?
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It might buy him a delay, but even with this court I think he’ll lose, his lawyers are quite literally arguing that Trump is above the law.
I would love for this to backfire on him and have the SC firmly rule that the President is subject to the law, and so the memo from OLC is bullshit that nobody should abide by anymore.
pleasepaypreacher.net
― Marcus Aurelius
Path of Exile: themightypuck
If it would break 5-4 to the liberals because Roberts has a longer view then protecting this chud they'll probably just not grant cert.
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This is already the case in a lot of ways since the President is "the law" so to speak. It is a much thornier problem in the long run than getting a good immediate outcome. Imagine a hyper polarized US. If states have jurisdiction over Presidents, the electorate as a whole is disenfranchised. The electoral college is already problematic. Imagine a single state being able to overturn a national election. It won't end well. Not sure what the equilibrium is but it definitely seems to differ from the status quo. Interesting times.
― Marcus Aurelius
Path of Exile: themightypuck
There ought to be no Presidential question. This is very narrow.
This makes sense transactionally, but are there knock on effects? SCOTUS will be worried about that. I'm with you in that I think the teeter totter will fall on the transparency side. But this isn't a slam dunk.
― Marcus Aurelius
Path of Exile: themightypuck
They might take it just to delay as much as possible. I am not sure its possible to delay till next nov but if it is...
The real big one is the Congress one who have made no such agreement. That's likely the case that will lead to a request for a stay and that right there is the big old deal.
CNN/Law professor does a explanor tweet chain:
Bush v Gore
No, it hasn't ended well
So people who can't see tweets don't miss out on a great thread:
https://threadreaderapp.com/thread/1195044031321034753.html
Text:
Apologies in advance, but this is going to get nerdy.
2. The first case is Trump v. Vance, arising out of a subpoena issued to Mazars by New York County (Manhattan) District Attorney Cyrus Vance. In that case, the President has asked the federal courts to issue an injunction barring Mazars from complying with a _state_ subpoena.
3. The district court refused to issue the requested injunction. Last Monday, the federal appeals court affirmed that decision, almost entirely because it concluded that President Trump did not have a substantial "likelihood of success on the merits."
assets.documentcloud.org/documents/6538…
4. But in that case, Vance agreed that he would not attempt to enforce the subpoena until #SCOTUS rules, so long as Trump filed his appeal (a "cert. petition") within 10 days of the Second Circuit's ruling (instead of the 90 days allowed under the rules). That deadline is today.
5. That means that, so long as Trump files today, there will be no emergency for #SCOTUS to resolve in the Vance case; it can address the cert. petition in "ordinary course."
Vance would have 30 days to respond (I doubt he'd use them all), and Trump would have 14 days to reply.
6. #SCOTUS usually decides whether to take up new cases at its regular "Conference." And after Friday, December 13, its next regular Conference isn't until Friday, January 10. So I think it's a good bet that _that's_ when the Justices would decide whether to take the Vance case.
7. A mid-January grant is just about the last moment the Court can typically add a case and still have it argued and decided during the current Term.
So if that happens in the Vance case, I think we'd be looking at oral argument in April, and a decision by the week of June 29.
8. The D.C. case, arising out of a subpoena from the House Oversight Committee to Mazars, is a bit trickier. As in New York, the district court rejected Trump's effort to bar Mazars from complying with the subpoena. And last month, the D.C. Circuit (by a 2-1 vote) agreed.
9. And yesterday, the Court of Appeals declined Trump's request to have the full court rehear his appeal:
assets.documentcloud.org/documents/6548…
But my understanding is that, _unlike_ in the Vance case, the House has _not_ agreed to hold off on enforcing the subpoena pending #SCOTUS review.
10. If that's correct, then Trump will not only likely _appeal_ that ruling to #SCOTUS, but he'll also likely first ask the Justices for a "stay," that is, an order freezing the status quo (and preventing enforcement of the subpoena) while that appeal is pending before the Court.
11. In general, a stay is an extraordinary remedy, and most applications for them are denied by the Court. Not only does the applicant have to convince five Justices that he is likely to prevail on the merits, but he has to show that, absent a stay, he'll suffer irreparable harm.
12. But as I've documented in a brand-new @HarvLRev essay, the Trump administration has asked for _far_ more stays from #SCOTUS than its predecessors (the next request will be the 22nd in less than three years)—and has received relief far more often:
harvardlawreview.org/wp-content/upl…
13. And an application for a stay tends to be resolved much faster than a cert. petition. So even though we may not know until January whether the Court will take the Vance case, we may know by Thanksgiving whether there are five votes to freeze the status quo for the time being.
14. Which leads to the most important point: There are plenty of reasons why a Justice who is otherwise inclined to vote against Trump on the merits might still want to freeze the status quo until the full Court can conduct plenary review.
But the reverse is not remotely true.
15. Thus, if #SCOTUS grants a stay in the D.C. case, I think all that we can reasonably conclude from that is that the Justices are likely to take one or both of these cases on the merits and decide them this Term—without any meaningful insight into how they'll ultimately rule.
16. But if the Court _denies_ a stay, even by a 5-4 vote, that would be a huge setback for Trump, and a pretty powerful sign that, whether the Court ends up taking one or both cases on the merits or not, the cases are quite likely to end with him losing.
What happens then?
17. It's easy to understand why folks might be worried about Trump defying an adverse #SCOTUS ruling in one of these cases.
But here, he's not the defendant; he's the plaintiff. And there's no reason to believe that Mazars, on the far side of such a ruling, wouldn't comply.
18. Of course, the damaging nature of the information sought in these subpoenas may end up paling in comparison to what's already public and what's coming out in the House hearings. But hopefully this helps put into perspective the legal steps as these cases get to #SCOTUS.
/end
I think I disagree. It’s only a burden if you allow the process to be retarded (so avoid using norms instead of actual fucking rules).
I say let anyone and everyone be constantly trying to show the president is a criminal. Then just have an appointed cabinet position called something like “oversight compliance officer,” who’s job is to deal with all the filings. If the filings are BS grandstanding, then they can just file for dismissals or appeals. If the filings are real, then the appointee wiill eventually give testimony or provide documents to clarify what happened (after getting briefed by president).
Then just have some special rules about what level of proof/conviction/indictment is necessary before the president has to personally get involved.
But the answer definitely should not be “fuck it, president is above the law.”
This should be interesting.
Associated Press:
Chief Justice John Roberts is ordering an indefinite delay in the House of Representatives’ demand for President Donald Trump’s financial records to give the Supreme Court time to figure out how to handle the high-stakes dispute.
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With any other court I'd say get clarification of what it is then, but...
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It's an administrative stay. SCOTUS gave the House lawyers until Thursday to respond to Trump's request to review. That's a day earlier than the House requested but SCOTUS has conference on Friday, so that could be why.
I get the formalities involved. But there's a line where the argument is so ludicrous you can just feed it right to the shredder.
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The opaque nature of everything means we can’t know for sure why anything is happening.
Personal take, stalling tactic. They can’t rule one way on the House request and another on the New York request. Probably arguing amongst themselves right now to determine whether they deny cert and slightly absolve themselves of responsibility to the Right, while also weighing how likely it is that POTUS will ignore a court order.
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Arent they asking a bank for the records?
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PSN: AbEntropy
Yeah, it's the sort of thing that can sound ominous but can also just be legal phrasing being terrible.
We'll find out later in the week, but this also highlights the problem with the lack of faith in impartiality and institutions. I don't trust Roberts and his conservative colleagues on the Court, for demonstrable past actions surrounding the Court rather than just partisan sniping, and that preexisting lack of trust makes me look on this act with a more jaundiced eye.
Yes, the bank is the one being asked for the records.
According to WaPo, a new book out about Kavanaugh and the conservatization of SCOTUS, Justice Kennedy literally had a private meeting with Trump on the day of Goursch's appointment and told Trump to nominate Kavanaugh. Kavanaugh was NOT on the list of candidates being considered before this meeting.
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A bunch of orders I skimmed that all involve not taking on cases. Good to see that folks on SCOTUS think it's just peaches for a lawyer who unsuccessfully prosecuted a dude twice to later serve as a judge for that guys trial.
Womp womp.
Did the lower court rule in favor of NR?