SCOTUS Takeover Continues
SCOTUS released opinions in three big cases, the affirmative action case, the student loan forgiveness case, and the anti-LGBT case. I haven’t had time to read them carefully, but it’s clear that they suck. The only bright spot is the emergence of Justice Ketanji Brown Jackson. I can offer some intitial impressions.
1. We now know that the 14th Amendment has an expiration date, at least as far as Black people are concerned. I wish the majority would tell us the date they ended racism so we could have a new holiday.
2. The major questions “doctrine” has a corollary: if enough money is involved, you can make up your own standing requirement. None of the plaintiffs in the student loan case could show injury. The majority says that Missouri has standing because Mohela is an instrumentality of the state. Mohela has the power to sue and be sued, but it refused to sue. I’m just sure the majority offers a not-gibberish explanation.
3. If a plaintiff is trying to inflict damage on the LGBT community they don’t need to show standing.
4. None of the plaintiffs in the affirmative action case could show injury, nor could they show a remedy that would help them. But they all have standing.
5. Standing is a meaningless concept.
Most important, John Roberts has a message for you in Bien v. Nebraska at 25-6:
It has become a disturbing feature of some recent opinions to criticize the decisions whith which they disagree as going beyond the proper role of the judiciary. Today we have concluded that an instrumentality created by Missouri, governed by Missouri, and answerable to Missouri is indeed part of Missouri; that the words “waive or modify” do not mean “completely rewrite”; and that our precedent — old and new — requires that Congress speak clearly before a Department Secretary can unilaterally alter large sections of the American economy. We have employed the traditional tools of judicial decisionmaking in doing so. Reasonable minds may disagree with our analysis — in fact, at least three do. See post, p. ___ *KAGAN, J. , dissenting). We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.
So once again, I remind you: you mustn’t criticize SCOTUS by pointing out it’s a corrupt power-grabbing rabble intent on imposing their minority views. Also, you mustn’t point out that they make stuff up to do so, or that theyrecognize no constraints on their power. At all times we must remember that theirs is a holy calling without which our great nation would collapse in disorder and chaos.
This is an open thread.
“It has become a disturbing feature of some recent opinions to criticize the decisions whith which they disagree as going beyond the proper role of the judiciary.”
Note, please, that it was *not* disturbing when Rehnquist or Scalia criticized their colleagues like this. Criticizing the liberals on the court for “legislating from the bench” was a regular feature from their dissents. Roberts sounds like those who believe that calling someone a racist is a worse than actually being a racist.
*facepalm*
I think Justices Kagan, Sotomayor, and especially Jackson have gotten under the skin of Roberts, Alito, and especially Thomas.
Good. I await the day when Jackson can unleash her pen in a stirring opinion for the majority, rather than in dissent.
Jackson show them up. Their ridiculous mish-mash rationales, part textualism, part originalism, and part law clerk history, won’t stand up to clear thinking and a firm grasp of professional history.
I note with pleasure that Justice Jackson cites The Second Founding by Eric Foner, the book I’ve been writing about. The ignorant Fox News majority don’t even understand the term.
And she cites it repeatedly.
Sotomayor cited The Second Founding as well, along with Foner’s book on Reconstruction.
These six highly, highly, highly partisan right wing racist REpublican politicians masquerading as judges make their decisions based on their politics and ideology and NOT the Constitution or Law. Indeed, if the Constitutin gets in the way of their politics, as it did in Shelby County v Holder they merely Nullified the Fifteenth Amendment to the Constitution and declared parts of the Voting Rights Act of 1965 unconstitutional.
They see themselves as the supreme policy maker for the nation superseding. the executive and legislative branches.
Not to mention that Thomas has voted to overturn acts of Congress (the proper definition of judicial activism) more than any other justice ever in SCOTUS history.
bmaz or anyone else with legal experience, please read the article in the link below and explain to me how 303 Creative v Elenis ever got to any court, anywhere ? It was a fake case from the start ! The supposed LGBTQ person did not exist.
Please read this, I am so angry I am not thinking clearly, I am sure.
https://newrepublic.com/article/173987/mysterious-case-fake-gay-marriage-website-real-straight-man-supreme-court
It should never have. It was a fake case, that is what we used to call an “advisory opinion”.
I’m with bmaz. Standing is one of the major safeguards against judicial overreach, and one closely followed by normal versions of SCOTUS. But then, as the President says, this isn’t a normal court.
You are angry beCAUSE you ARE thinking clearly!
I certainly hope no one here is disputing the majority’s assertion that a retail business’s website is artistic expression and has no connection to commerce. /s
303 Creative should never have been a court case at any level. Plaintiff sought an advisory opinion, which federal courts are not authorized to issue, based upon speculative, prospective injury from running a business the plaintiff had not begun to operate. Further, it presents no case or controversy, no actual demonstrated injury, not even the likelihood of one. In fact, the probability of injury would be from the self-harm to the plaintiff’s not-yet-a-business owing to the owner’s refusal to offer her services to all comers.
It became a Supreme Court case only because the radical right majority determined it had the power to pixie dust away all those fundamental requirements, so that it could further its culture war battle against those it dislikes. The case is an expression of power, not the law or constitutional procedure.
Plaintiff Smith’s attorneys are the Christian right group
Alliance Defending Freedom, an SPLC identified hate group.
More on them here:
https://www.emptywheel.net/2023/06/28/scotus-takes-over/#comment-999917
Worth noting one of the Alliance lawyers is Erin Morrow Hawley, wife of Runnin’ Josh Hawley. She was on the mifepristone case brief.
She is much less visible than her husband, but is also more dangerous than he is. She clerked for Roberts and served as AG Mukasey’s counsel at DOJ, as well as worked at several DC-based white shoe law firms.
As you might imagine, the Federalist Society loves her.
The student debt case is just as egregiously argued. It is an anti-intellectual assault on the law and Constitution.
Plaintiffs had no standing. Missouri, which had the best non-argument among the plaintiffs, had no no skin in the game. Neither did the independent state-owned legal entity, which chose not to litigate any claims it might have had. The majority used pixie dust – it must have cornered the market for it in Neverland – to conflate that private entity’s potential claims, not pursued, with those of Missouri, which has no financial interest in the performance of that state entity.
The statutory scheme established in the Heroes Act was clear. The Court chose not to invalidate it. Instead, it gutted it, along with the process Congress intended to implement through it. The Court didn’t like the executive branch’s policy priority to relieve 43 million students of all or a portion of their debt. So it decided the consequence of implementing a legitimate statute in a legitimate way was too much for the radical right majority’s collective stomach.
It also, in fact, gutted Congress’s authority to plan for unforeseen circumstances by delegating authority to the executive. It would prefer, it seems, that Congress only react to specific catastrophic events after they occur, which assumes that the whims of the election cycle yield sufficient majorities to do so when catastrophes strike. This is a battle in the radical right majority’s war to deconstruct the administrative state.
Amen and amen.
The level of real corruption here is breathtaking. They’ve decided 3 cases with fake plaintiffs and claims, all of whom were funded by the same folks who are buying the Justices.
Really? “Corruption” is a specific crime. Do you have any facts to support that blatant and criminal allegation, or just blowing poop out of your rear. Let’s try to be a little better that that here, okay? Or would you rather spew unsubstantiated garbage to make yourself feel good and place this blog in jeopardy?
I saw no claim of criminality here. Corruption encompasses more than criminality.
Amen. SCOTUS is doing a perfectly fine job of defining corruption down to nothing, without help from our friends. When the same sources fund both the justices’ lifestyles and the groups ginning up chimerical claims, which these same justices swallow whole, the entire setup is corrupt in any ordinary sense.
What I would like to know is how the conservative majority on SCOTUS interprets the Preamble to the U.S. Constitution because I can’t think of a single ruling they’ve made recently that contributes to forming a more perfect union, promoting the general welfare, or securing the blessings of liberty.
There should be, if there isn’t already, a Preamble Society to rebut the Federalists and their morally bankrupt “original intent” philosophy. Political candidates should be asked how the policies they advocate advance the purposes stated in the Preamble. Judicial appointees should be asked to defend their rulings on the same basis.
Preambles, by definition, come before the main event. They are aspirations that create context. They are persuasive, but have no direct legal effect.
If you treat the Preamble as a statement of the aims of the Founders, then it could certainly be aimed the “philosophy” of “original intent” as a measuring rod. Original intent plainly has had a direct legal effect.
I think that argument conflates political utility with legal analysis. But then so do many of the arguments made by today’s Sup. Ct. majority.
“Originalism” is, for example, a hubristic tool that camouflages modern priorities – typically hard right wing ones – with the trappings of superficial historical analysis.
The Court’s current majority has rarely accurately analyzed history, let alone credibly explored why one viewpoint among dozens or hundreds should be the controlling one for legal analysis.
Earl, you hit the nail on the head. The above comment about ‘corruption’ is really pointing out the intellectual self-serving quality of this court’s decisions. It is the very definition of ‘going rogue’, which is exactly what stare decisis was meant to prevent.
EoH is generally right about preambles as not part of a contract. But I also think there’s a reason we include them. They often give context to agreements, and should, I think, be considered in resolving ambiguities in language, which are inevitable. That also gives us a way to give the necessary flexibility of an agreement to cope with the changes that come with the passage of time.
Originalism in its classic forms freezes us in the distant past. We can’t live like that.
Kagan [Student Loan Forgiveness-dissent]:
https://www.supremecourt.gov/opinions/22pdf/22-506_nmip.pdf
While her dissent is aimed at this case, Kagan also knows what’s coming, and this is a preemptive salvo in a fight on the docket for next year. From Amy Howe at SCOTUSblog, with internal links omitted:
The phrase “in recent years” is Amy being charitable, at least with respect to Thomas, who has *never* liked Chevron.
In one of history’s ironic twists, the Chevron case allowed Justice Gorsuch’s mom to gut the Clean Air Act.
The Court seems to love Chevron when the GOP controls the executive branch, but loathe it when the Democrats are in control.
Imagine that . . .
As Kagan so brilliantly points out, the States don’t have standing either in the student loan case, and this is nothing more than a naked power grab by the Court:
“Is there a person in America who thinks Missouri is here because it is worried about MOHELA’s loss of loan – servicing fees? I would like to meet him . Missouri is here because it thinks the Secretary’s loan cancellation plan makes for terrible , inequitable, wasteful policy. And so too for Arkansas, Iowa, Kansas, Nebraska, and South Carolina. And maybe all of them are right . But that question is not what this Court sits to decide. That question is more appropriately addressed in the representative branches , and by the broader public.”
The Supreme Court has managed to roll back achievements, in the very same week, regarding the trias of class, race and gender which were the three categories often mentioned in the same breath, and especially their intersection, in the fight for civil rights and against discrimination since at least the 1980s.
Re the 303 Creative v. Elenis case and the previous comments: I also came across an article on Vox, commenting on the issue: https :// www .vox.com/sco tus/2023/6/30/23779816/supreme-court-lgbtq-ruling-neil-gorsuch-303-creative-elenis (some blanks incerted).
Re the affirmative action case: I’ve read an opinion by Kim Crenshaw, spanning the decades between the Thomas nomination hearings in the Senate and the most recent decision on college admissions, with great interest and some sadness. It’s on Politico: https :// www .politico. com/news/maga zine/2023/06/30/anita-hill-clarence-thomas-supreme-court-affirmative-action-00104387 (some blanks incerted).
Re the first comment in this thread by Peterr: “I await the day when Jackson can unleash her pen in a stirring opinion for the majority, rather than in dissent.” I do as well, but am afraid I won’t live to see that day.
@Moderators: if the links are ok, please, remove the blanks.
“…Department Secretary can unilaterally alter large sections of the American economy…” says so much. The Federalist captured SCOTUS is the guardian of the plutocracy. No elected president or appointed cabinet official under presidential direction should dare interfere with the INVESTORS.
No billionaire left behind.
Well said. But I fear you are in danger of hurting the nation. Or at least the feelings of the Holy Six.
“Declaring an act of Congress unconstitutional is the boldest thing a judge can do.”
“Between 1791 (the court’s founding) and 1858, only two such invalidations occurred.”
“We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H.W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws.”
https://www.nytimes.com/2005/07/06/opinion/so-who-are-the-activists.html
Yep, that’s basically it. But with a bit of discrimination is okay if we say so, even if it conflicts with the intent of the Constitution, etc, thrown in.
That last part is the real clincher too. They’ve started us down the rabbit hole of business owners deciding who their customers can be in the public sphere based merely on claiming a religious ground for exclusion. Taken to one possible logical extreme, this might permit an entire sector of the economy to exclude what should be a protected class of people from obtaining goods or services. That’s not how equal protection is supposed to work I’m thinking, particularly if the court rules that the Congress nor the Executive can force compliance with equal protection and opportunity laws and regulations.
I note that the 3 dissenters are not only women but also each is a member of a minority. I don’t think that is a coincidence
No. It very much is not. And the “Majority” just cannot stand that.
So you don’t think their perspectives are informed in any measure by their lived experience? I do not mean to imply that only their perspectives are informed by it. My belief is that such is true of the other justices also.
Lol, I never said that. But thanks for putting words in my mouth.
I totally misunderstood your comment. Sorry. My bad.
No worries.
What “lived experience”? When has Justice Coney Barrett ever spent 15 minutes out of her wealthy conservative Catholic bubble except to join an even smaller bubble of a peculiar form of Pentecostalism to her pre-Vatican II Catholicism?
What is stunted about all six of the conservative Justices is something the Victorians called “the moral imagination.” All six of them practice Social Darwinism with a veneer of religiosity.
I’m looking at this from the outside — and with no standing. The Supreme Court seems bent, via its political majority, on dismantling decades of progress, if not democracy itself?
Events in the US are of interest to me, not only because of the global power that the US wields. I have a US friend I’ve known for decades (we met when he was working in Europe). He was once liberally inclined but, latterly, I often end up debating issues with him: ideas he gets from RW radio talk shows. He also asserts that “all politicians are corrupt”. (But he does live in Ohio!)
I find it quite unsettling that someone who’s well-travelled, well-read, an avowed atheist, and hitherto open-minded, is now telling me that “common sense” is more valid than any scientific research.
Yes, propaganda is pernicious. Read Hitler’s Willing Executioners.
The slim silver lining in this is that the outrage and naked lawlessness by the current SCOTUS will only build more pressure on Biden to expand the court to 13*. That allows any given Justice to handle emergency appeals for one court of appeals district (1-11 plus DC and Federal) only. It also allows Biden to add four more jurists instead of FedSoc hacks.
* The change will not happen before 2025 since there is no way the GOP House will authorize a court expansion. So, the House has to flip in the 2024 election first and the Ds have to hold the Senate and the Presidency. I think the latter is likely, not so sure about the former. So, while Biden is not yet on board with expansion, I think he realizes that there is no utility in playing the expansion card either except to rile up the RWNM. They don’t need more ammo.
I agree with you completely. I thought his comments yesterday about not wanting court expansion were made without much conviction. No need to poke the RW rattlesnakes just yet.
Joe Biden isn’t there yet, or not sufficiently to admit it publicly. Yes, it’s true that he hasn’t the votes in the Senate, let alone in the House. But how does he expect to get them without putting his own skin in the game? The right doesn’t need to be poked to consider him the devil incarnate. But his own troops need leadership only he can provide – and so do voters tempted to vote for him.
And the Democrats have to make this a huge campaign issue.
This is a point bmaz has been making ever since I’ve known him and especially and presciently in the 2016 election. Democrats have refused to make any effort to educate the public about the right-wing takeover of SCOTUS. That has to change.
And that has been a very long time. Judicial policy really matters, and The Dems have never paid enough attention to it.
Biden’s lower court nominations have been amazing at rebuilding the legal bench. Yes, it’s not SCOTUS, and no one (but us) pays attention to anything but SCOTUS, but still. Getting them through the Senate has not been easy (thank you so much, Ms. Feinstein), but they have been pushing an amazing crew of new judges.
And if Dick Durbin would burn the blue slip, it would be even better.
Actually think Durbin is more of a problem with the Blue Slips than DiFi is. But you know I have been carping about Blue Slips since Leahy’s early days.
DiFi was a short term problem, as her absence created a deadlock that prevented the Judiciary committee from discharging nominations. Durbin is a long term problem, as the blue slips are letting the GOP block nominations altogether.
“Naked lawlessness”? They are the ultimate decider of law, whether any of us like it or not. SCOTUS is not “lawless” though they may be embarrassing themselves.
It’s good to be king.
Seems like there may have been some laws broken when Alito and Thomas didn’t file their financial disclosure reports correctly. The Democrats didn’t uncover that though…
This scandal has been brewing since January of this year…
https://www.politico.com/news/2023/06/07/thomas-alito-delay-financial-disclosure-reports-00100892
I’ll agree they are the final arbiters of the law here, but they do get a lot wrong and in these cases the majority not only trampled upon long-settled precedent and case law, but also the basic rules of court (i.e. standing). That for me defines ‘naked lawlessness’ even if the legal definition can’t handle the truth.
Let’s also consider what it means to continue this policy. As (IIRC) Andrew Jackson said about the United States Bank ruling, ‘the SCOTUS can have their ruling, now let them enforce it’. This means that any precedent, norm, law, etc. can be set aside because one person might have their fee-fees hurt. It will even extend to mundane contracts and regulations. Do you want your security deposit back as a renter? In CA the landlord has had to provide an itemized list of damages not including ‘wear and tear’. Someone took out your brand new Maserati in a hit and run? Too bad. It’s a couple of examples of many quite logical outcomes, and I suspect will lead to anarchy since no law needs to be followed.
The NRA will love it, since at that point it will become the law of the jungle and everyone will need to pack heat.
One wonders how the ‘constitutional sheriffs’ will proceed as well, now that even the SCOTUS appears to have greenlighted their key tenets regarding government.
My guess is that Biden isn’t anywhere close to considering expansion. I think he is just waiting for Thomas and Alito to move on to other pastures. That may be one reason Biden is not polling well.
Biden is *not* going to go there. No matter what the size of the court is, it will always be vulnerable to being extreme, as it is now. Make it larger today, and tomorrow the GOP will take it over and repeat what they are doing now. Instead, he is going to invite folks to push back against the folks who gave us the 6 justices in the majority: the GOP.
The backlash against Dobbs suggests that he is not wrong in moving this way. The two big rulings related to college students (admissions and debt) are going to resonate with young voters, and as the Kansas abortion vote proved, young voters are beginning to turn out in ways that the country has not seen since the Vietnam war.
Biden may never go there any more than he would repeal his own bankruptcy reforms from 2005. But it would be a mistake that will measurable show up at the voting booth. We need both court reform and to remake the current Supreme Court.
I can’t be the only young person (albeit not an American) who thinks that the most likely reform for Biden/the Dems to eventually embrace [post-Dobbs] would be term limits?!
Because then no matter how nuts any one Justice was, they would each only have so many years to make their mark on the court before they had to move-on…
and it would reduce the effectiveness of the recent GOP trend towards appointing very young (and thus less experienced) judges.
I just can’t see any other reforms (other than ethics stuff) actually being somehow acceptable to all the moderate Dems… they know full well the GOP would just re-pack a court packed by Dems… they would probably not agree to just let every new president have one appointment per term, because Trump just got so many in a row.
But yeah even then I agree it’s very unlikely to happen anytime soon, like these are the people who can’t even agree to get rid of conventions like blue slips, as mentioned above, let alone the non-speaking filibuster FFS, despite facing a party that will do ANYTHING to get thier way.
It really is a bit baffling that they haven’t made a bigger effort to make court reform a campaign issue… most other large western democracies have much less partisan supreme courts.
Canada’s has a mandatory retirement age of 75, and honestly I doubt most Canadians could name a single member of the court, let alone more than one. Like we all fine out about big decisions that come down still, absolutely. But nobody teally pays attention to who voted for which side, just what the outcome actually was. If you guys had a similar mandatory retirement age then it would keep judges from getting super ancient but still refusing to retire, like RBG did.
Just seems to me like the younger people who have all been activated by the Dobbs ruling would be most likely to get behind (and push on the Dems) something that would help get all these past-due crusty old farts off the courts as quick as possible…
In re term limits, refer to Article III, Section 1 of the U.S. Constitution:
That means a lifetime appointment, and to change this requires an amendment to the constitution, not just legislation. It would be far more difficult to do this — and far more dangerous if the constitution convention method was invoked — than it would be to impeach justices for bad behavior. We can’t impeach and convict to remove any of the justices because there isn’t a majority in the House for impeachment nor a 2/3rds majority in the Senate for conviction and removal; you’ve already observed how this failed with Trump when Democrats had more seats and Trump was far more egregiously and overtly bad in behavior.
Democrats have not wanted to make the federal judiciary including SCOTUS a campaign issue because it would hand the GOP gratis a tool to use as motivational leverage to get out their base to vote when their candidates are otherwise flaccid and unappealing.
Young voters are torqued off enough; non-partisan groups will use SCOTUS’ decisions, especially Dobbs, to motivate registration and turnout.
Like ‘high crimes and misdemeanors’ good behavior is not defined by the Constitution which means these definitions are whatever the House majority at the time says they are. Compare and contrast the two impeachments of Trump to the stuff going on now between censures and the catfight over who wanted to impeach Biden first.
I agree with your opinion:
Here are some numbers describing the value of appealing to younger voters:
From https://www.brookings.edu/articles/younger-voters-are-poised-to-upend-american-politics/
• Voters 47 and younger will be the majority beginning in 2028.
• Younger voters have historically voted significantly higher for Democrats
• Young women, young Hispanics and young African Americans vote substantially higher for Democrats
From https://circle.tufts.edu/2022-election-center
• Mid-term voter percentage for folks under 29 was very high in 2022 (23%) but lower than 2018 (28%). Both much higher than 2014 (13%)
• Abortion was youth’s #1 issue in 2022
RUGGER_9 is correct in recognizing that winning elections is a necessary step in restoring a more constrained SCOTUS. Bmaz is also correct in pointing out that the Democratic Party has ignored judicial policy at great cost. Checks and balances, imposed by the other branches of the federal government on the one hand, and by the states on the other, were intended to limit the damage anti-democratic elements of the US government might cause. The current SCOTUS is doing what it can to undermine challenges to its own authority. Unfortunately, I do not believe that court expansion offers a solution because the more fundamental problem is the lack of constraint, not the content of its highly partisan decisions. I abhor the decisions, but it’s important to distinguish the structural problem from the odious policies.
S 1616 (Ed Markey), no co-sponsors as yet.
HR 3422 (Hank Johnson), 65 co-sponsors.
“Judiciary Act of 2023.”
The conservatives like being the rulers, without the responsibilities that come with that role.
And I’m sure their response to that would be “If you think ruling comes with responsibilities, you’re doing it wrong.”
Back to the 14th century we go….
UMPIRE John sure seems DISTURBED.
SO Disturbed that these “three reasonable minds”
DARE not only to “disagree with our analysis”,
but to AIR their disagreement in public!
That Public [The SHEEP] might be “misled”!
If The COURT and the COUNTRY are harmed,
it is the FAULT of those who DARE to disagree.
Six snowflakes walked into a courtroom…. Stop me if you’ve heard this one.
If Mr. Roberts is so disturbed by criticism that would not make a flower petal wilt, he should get out more. I suggest a long walk in any major city, including DC.
There could be a highlight reel of Disturbed Umpire JOHN’s Blown Calls.
How did Disturbed Umpire John get his job?
Only slightly OT, but can anybody explain how Harvard loses in the affirmative action case? Harvard is a private university: not a state actor. The Constitution enables and constrains the government’s power; it does not directly act on private persons. (Exception: the 13th Amendment.) Gorsuch wanted to base the opinion on statutory grounds, but the case was decided on the 14th Amendment. Could somebody explain?
There might be other reasons but it accepts federal funding is one reason, I think.
I think that “accepts federal funding” proves too much. As a student back in the day, I accepted all kinds of federal funding. That doesn’t make me a state actor, directly subject to the Constitution. It *might* subject me to certain statutory responsibilities, but that’s a different thing.
Yep. The student loans and web designer cases were the very definition of legislating from the bench. This Court throws precedent out the window when it suits them. Now, the concept of standing has no meaning. Pretty soon, the extreme right will simply tell the Justices….”We don’t really have a case to bring but here’s the policy change we want,” and the fascists on the Court will write up the decision.
Oh…wait…kinda looks like they’re doing that now.
They do seem to be warming up to that, alas. :(
I guess Biden will just need to waive the loans altogether, unless waive doesn’t mean waive.
Re Roberts’ screed: Actually, “waive or modify” is a broader term that encompasses a “complete rewrite”. You can’t modify a rule without rewriting it.
Ugh. Pretty sure that ‘waive’ is being turned into a pretzel by Roberts’ convoluted rationalization.