So, a few calm thoughts before the three day storm system rolls through the rest of the week...
1. Friday will be a bit of a conundrum for me. It's my 60th birthday, and we'll be heading out to visit Jr. and having a fantastic winery dinner in the evening (
https://be.bbvwine.com/app/uploads/2024/03/2024-Spring-Dessert-Menu-def.pdf), so I may unable to follow along live for the last day's opinions depending on when we depart.
2. The reality is -- as it always has been, and is not unique to this court -- that the last few days' opinions are among the most consequential. They're last because they're the hardest, and each justice is more likely to want to express their particular nuanced view. And they often have broader implications - just as Justice Soto can turn an immigration case involving a gang member noncitizen spouse into one about LGBTQ marital rights, so too cases about agency authority and executive immunity are often just as much about the
next case. All that takes time. There's no grand conspiracy as to timing.
3. While we all often have strong views about the end results in these cases, the reality is that they are hard, and about 99% of the time, there are very real and important considerations advanced by the party opposite the end result we may desire. I try to read the opinions, and others should too - other than matters of process (which is the only thing that makes a lawyer a lawyer), they're surprisingly lucid.
4. To wit, some thoughts on the pending cases...
a. Relentless/Loper Bright (Chevron) - Recognize this is
not about getting rid of deference to policy choices (which remains), it's about deference to legal constructions of statutes. IMO, Chevron needs to go not only because agencies are no better at that than judges, but also because (i) Chevron affirmatively encourages them to bend over backwards to make a merely plausible case for the possible, rather than identifying what's authorized, and (ii) doing so will, over the long term, encourage those choices to be made where they rightfully belong, by the politically accountable legislature. Sure, that can be tough, but in the long term it's important, and it's one part of how we break the cycle of politics being merely a parliamentary team exercise and returning to a more representative one.
b. Jarkesy - Very interested to see how this one comes out. I can't for the life of me envision a decision that suddenly one gets a jury trial for a much broader swath of civil/administrative enforcement actions by an agency, though it is sort of consistent with the history/tradition of jury rights. Appointments clause maybe?
c. Purdue - Continue to be surprised this has taken so long, and I have a hard time seeing the court stop a potential resolution of one of the biggest bankruptcies out there. Bad cases, bad law i guess.
d. Ohio/EPA - While this'll be played as simple "anti-environmental regulation," it's really struck me as a pretty vanilla case from an APA perspective - an agency can act if it fails to consider an important part of a problem, which it pretty clearly did here in the name of expedience.
e. Moody/Netchoice - states gonna get spanked. Just not sure how this is anything other than the G regulating private speech platforms.
f. Idaho/abortion EMTALA preemption - While as a health care lawyer it's a little dubious to me that EMTALA preemption ever really had this in mind, Idaho will rightfully lose due to the conscience exemptions in the law. I suspect we'll see some language in here that sort of echoes some of the discussion of causation in the standing cases.
g. Trump. Hard to define what is a win and what is a loss here. On the one hand, all should recognize that there are legitimate questions about a president's immunity for choices and actions within the scope of his executive duties. I have to say, the theme at the argument that "we have to be careful about revenge against previous presidents," while practically correct, didn't quite ring true to me as having any basis in the constitution itself. Don't be surprised, or disappointed, if the court carves out "some" space for executive action though. On the other hand, while I haven't remotely followed the minutiae of 1/6, I have a hard time believing that on remand every single thing will be viewed as within the scope of legitimate executive action, or otherwise some form of "political puffery." I know folks here are worked up about timing, but remember that the G itself first sought review of this issue, that in the big scheme of this has proceeded very quickly, and that it's fundamentally wrong to think of any scotus case being about timing and nothing else.
