Open Thread: SCOTUS Decisions, Thursday Edition [UPDATE-1]
[NB: check the byline, thanks. /~Rayne]
This is the penultimate day of the Supreme Court’s term ending on June 28; a few more decisions today with the remainder tomorrow Friday, the last day of the term.
Decisions released today will follow below. Unfortunately I need to be away from my desk for a while this morning; I may not post the decisions promptly after 10:00 a.m. ET but I will do so as soon as I can get to my desk.
~ ~ ~
Time-killing observations:
SCOTUS taking up gender-affirming care of transgender children:
The court agreed Monday to hear the Biden administration’s challenge to a Tennessee’s ban on gender-affirming medical treatment for minors, an increasingly potent political issue that has divided lower courts and emerged as a leading front in the battle over LGBTQ issues.
This is going to be as messy as other decisions like those about gun and reproductive rights.
This one will likely go 5-4 with conservatives in majority, none of whom will give a shit about the children’s sentiments.
~ ~ ~
UPDATE-1 — 10:40 A.M. — Today’s decisions —
First decision: Ohio v. EPA
Justice Gorsuch wrote the 5-4 decision; Justice Barrett wrote the dissent, siding with the liberals on this case related to the EPA’s “Good Neighbor” rule.
Second decision: Harrington v. Purdue Pharma L.P.
Justice Gorsuch also wrote this 5-4 decision; Justice Kavanaugh wrote the dissent with what seems an odd combination of Kagan, Roberts, and Sotomayor.
This was about the bankrupt maker of prescription pain-killer Oxycontin and the release of claims.
Third decision: Securities and Exchange Commission v. Jarkesy
Chief Justice Roberts wrote the 6-3 decision; Justice Sotomayor wrote the dissent. The case centered on a hedge fund manager’s fraud and their Seventh Amendment right to a trial.
Fourth decision: Moyle v. United States and Idaho v. United States (consolidated)
As expected after yesterday’s accidental leak of the decision, SCOTUS dismissed the emergency abortion case.
~ ~ ~
Updates with news related to the SCOTUS decisions today will appear at the bottom of this post. This is an open thread.
https://bsky.app/profile/chrisgeidner.bsky.social/post/3kvvy2dlurf2c
Jun 27, 2024 at 9:56 AM
Of course, GORSUCH v. EPA
https://bsky.app/profile/chrisgeidner.bsky.social/post/3kvvyw2zfln2y
Jun 27, 2024 at 10:12 AM
https://bsky.app/profile/chrisgeidner.bsky.social/post/3kvvzp3k3rc2w
Jun 27, 2024 at 10:26 AM
I wish I could hear Jackson reading from that!
And Chris Geidner yesterday: “If SCOTUS deals with the EMTALA case how the posted document (ie, draft(?) opinion) does, that would do nothing to the decision in the case out of Texas, affirmed by the Fifth Circuit, holding that EMTALA does not protect abortion care.”
https://bsky.app/profile/chrisgeidner.bsky.social/post/3kvuklw55n32c
So will they be taking it up again next year? That’s consistent with KBJ’s statement that today’s decision “is delay.”
The conservatives are going to vote against emergency abortion regardless of when the case is taken back up. The question is whether any one justice will be swayed based on the emergency abortions which have already happened or will happen before then.
Women as nonconsensual human experimentation subjects. Damn it.
I think the key thing is “delay past the election” to deny Democrats talking points under the guise of “it hasn’t been decided yet.”.
https://bsky.app/profile/chrisgeidner.bsky.social/post/3kvvzzmia6a26
Jun 27, 2024 at 10:32 AM
Thank you, Harpie.
And thank you, Rayne, for this thread.
Here’s the link I found. ‘Hope it’s the right one.
https://www.lawdork.com/
Once again Barrett is showing that the people who shoehorned her onto the court got the Dobbs decision from her, but not much else. The court is showing a number of 5-4 splits coindentally aligning with gender.
Neil is still fighting mommy’s battles for her.
His family hate the EPA like Trump hates taxes and accountability. Never mind that his personal feelings shouldn’t affect how he judges. That line is only good for Senate confirmation hearings.
Exactly. Agreed.
His mother, Ann, badly influenced Neil.
Is it “Neil” or “Kneel”?
Given today’s result I would surmise that the Sackler family had not in the past been overly generous with their gratuities.
Perhaps they will see the error of their ways in the future.
That’s bad Boris. Also good.
I guess now that bribes to the justices can just be treated as indulgences.
Harlan Crow knew how to do it better.
Question is, whose doing Aileen?
i think assuming justice eventually works we will see unexplained funding going her way and unexplained (and strangely funded) legal assistance in her history.
[Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We have adopted this minimum standard to support community security. Because your username is far too short it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. Please also be sure to use the same email each time you comment; we don’t ask for a valid/working email address, only that you use the same one. Thanks. /~Rayne]
Supreme Court Blocks Biden Plan on Air Pollution Three states challenged the administration’s “good neighbor” plan, meant to protect downwind states from harmful emissions. https://www.nytimes.com/2024/06/27/us/politics/supreme-court-biden-air-pollution.html
Adam Liptak June 27, 2024, 10:07 a.m. ET
The majority SCOTUS judges don’t like government regulation – and they certainly don’t care about our lives, our liberties, or our pursuit of happiness – those protections belong to corporations and the wealthy one-percent.
How long century-long polluting states to argue against the down-wind rule. Their “spillage” has harmed neighboring states since Youngstown first made steel. Never mind coal-burning power plants.
Let the potentially tax-free gratuities begin!
/s
…and RVs and vacations! Don’t forget about the $$$ bottles of wine and paying mama’s mortgage! Or was it property taxes? So much grift, it’s so hard to keep track of all of it.
I do not understand this decision. In light of the international battle over acid rain for a decade, I really thought the courts would view fellow Americans having the same rights to clean air as Canadians. My bad.
https://policyoptions.irpp.org/magazines/harpers-foreign-policy/acid-rain-a-case-study-in-canada-us-relations/
Here’s hoping downwind states develop tech to blow the damn pollution back to Ohio, Indiana and West Virginia!
I agree.
MAGA
Make Air Gray Again
Guess we’re getting the Trump immunity decision tomorrow, after the debate.
EDIT: Or maybe not. From SCOTUSblog: “The court’s marshal has announced that they will be back again tomorrow (which we knew), but the Chief did not announce that tomorrow would be the last day, so apparently it is not the last day of the term.”
Is it possible for SCOTUS to NOT issue an opinion until the next Term?
If SCOTUS really was in the bag for Trump, wouldn’t they wait to drop the Immunity case until 10 am, January 20?!
I share your question. I THINK a related question is whether the court can simply say nothing about a case they have agreed to take up (and if not, how long they can wait).
I’m waiting to see what this court does, before I try to figure that answer out (because I’m only curious about the answer if it matters), but I suspect that other folks here know the answer without Googling for it.
I’ve been warped by my awareness of legislative branch practices – at the end of each term, everything that wasn’t passed, simply dissolves. Didn’t get the bill you wanted passed, or didn’t get the judge you wanted confirmed? Just resubmit to the next session, and try again.
In announcing its decisions, the Court has absolute discretion.
Chris Geidner noted “We will be going into July, but we don’t know when or how long.” On the SCOTUS website, they don’t have any other opinion days noted calendar so far.
The SCOTUS website now says “The Court may announce opinions on Friday, June 28, and Monday, July 1,” and the calendar has been updated to show July 1 as a decision day.
Announcing its immunity decision just before the July 4th holiday, when people are distracted and news coverage is slight, would be just like this majority. It’s also a thumb in the eye of the holiday itself.
SCOTUS can release this Trump immunity decision any time they want.
I’d be surprised if this SCOTUS releases it before the November 2024 election.
They fear being accused of swaying a presidential election one way or another with its release.
“They fear being accused of swaying a presidential election one way or another with its release.’
That is a funny observation.
We were reminded this week that decisions aren’t decisions until they are announced, and I wonder how many of the remaining cases will be Dismissed as Improvidently Granted (DIG, a new term I heard for the first time), and how many of the remaining cases still don’t have a majority decision that enough justices agree with.
earlofhuntingdon pointed out in an answer to my previous question that the supreme court has absolute discretion in announcing decisions, and I think I understand that, but my next question is whether they can decide not to announce a decision in this term, but
(1) announce it at some later point (I think the answer is yes), or
(2) re-ballot the case before announcing it at that later point, or
(3) re-ballot the case with a different court membership without re-arguing the case, or
(4) say “we’ve still got this case, but we haven’t been able to come up with a decision that enough justices agree on, so please re-file, and we’ll try again”.
I understand that not all of these would be smart things to do, so I’m just asking if they can do them.
HaHaHaHaHa – there’s no extra points for being funny!
SCOTUS is already interfering in the administration of justice on Trump’s behalf. I’m pretty sure they’re unconcerned about being perceived as committing election interference for him.
More like the Repub justices want to see who the next President is before they declare the President has absolute immunity…
exactly.
This has been my focus since they took this appeal.
How can it not be the logical question / presumption?!
Supreme Court Rejects Liability Shield at Center of Purdue Pharma Settlement The liability shield would have protected members of the Sackler family from civil claims related to the opioid epidemic. https://www.nytimes.com/2024/06/27/us/supreme-court-opioid-settlement.html
Abbie VanSickle June 27, 2024, 10:17 a.m. ET
What a grouping of justices.
Thanks for busting your hump with SCOTUS material this morning! Next time I have to leave my desk on a SCOTUS morning I should give you my keys!
Harpie is a gift that just keeps on giving!!
Thank you Rayne for all your your energy, dedication and insights.
You are correct. There is, however, no substitute for you.
You are quite welcome, Rayne!
I’m glad to do what I can to help with all the balls you ALL are juggling around here!
And thanks to Just Bill and Sussex Trafalgar, too, for your kind words.
I agree there IS no substitute for Rayne. :-)
The decision in the SEC case, by design, hamstrings the SEC’s ability to enforce securities laws and gives substantially more power to the courts. Who could have predicted? The process, of course, adds substantial costs and years of delay, further empowering the wealthy in their fight against accountability.
In the 1970s, Nixon was accused of running an imperial presidency. Now, we have an imperial Supreme Court, arrogating to itself powers that belong to the other coequal branches of government, whose members do not have lifetime appointments. I wonder if it’s time to go long on pitchforks.
Why stop there? We could reclaim the humble Tiki Torch from the MAGATs and add it to the pitchforks for the full “angry villagers” vibe! /s
Supremely Corrupt.
That’s how I would word a billboard on major commuting routes. Some with photos.
Its even worse. They’re announcing decisions next week on monday and friday (ie DURING the July 4 holiday).
On the SCOTUS website, they haven’t said that they’re announcing decisions on Friday of next week, only (so far) that they’re announcing decisions tomorrow and next Monday.
Shorter: Securities and Exchange Commission v. Jarkesy
The SEC was established in 1934 and hence is not in “the historical tradition” of governmental financial oversight. Securities and Financial matters should be regulated by the free market and not government.
90 years is quite a history, and the regulations were in place before the post WWII transformation of the economy to the regime we live in today, which seems historically consistent, though Justice Thomas may require us to all gather around lower Manhattan coffee houses and oak trees to trade shares of stock as was done at the dawn of the Republic.
Bring back the Gilded Age of Frauds: jay Gould rides again!
Perhaps I misunderstood Jarkesy, but my take is different. It appears to grant the right to demand a jury trial instead of trial before an administrative law judge to targets of SEC enforcement actions. One advantage of ALJs is that they can become experts in difficult or highly technical areas of the law. Securities law would seem to be such an area. So this will make securities law enforcement noisier, at least within the scope of Jarkesy (securities fraud). Also, if the securities law defense bar builds a new capacity to understand and defend jury trials, it will make securities law less SEC-friendly.
Years ago I was the Securities Commissioner of Tennessee under its Blue Sky Law. These cases are so tedious that even I, who had a stake in them, was bored stiff as my staff put on ourevidence I watched once as half of the jury in a criminal case tried to stay awake as an accountant explained complex financial statements.
In this case, can you imagine the detail in a court case that would have to be presented to a panel of jurors who can basically read their brokerage and bank statements, and never once looked at a footnote in a financial statement?
These cases are easy to try in front of an ALJ or even a panel of arbitraters who don’t need the baby steps introduction. This is another example of the problem of putting courts ahead of Congress in making these calls.
Not to sound too prejudiced, but… the typical juror in Tennessee has brokerage statements?
Among other industries, Nashville is home to the largest private hospital operator, HCA. Nissan North America is headquartered in Franklin. FedEx, International Paper, and AutoZone are headquartered in Memphis.
And you’ll also notice Ed stated brokerage AND bank statements.
You couldn’t tell that from your frequent interviews of diners throughout rural America, which you managed to conduct during your Metro DC lunch hours? Or is that the work of a namesake?
I am an SEC Enforcement lawyer (I was an SEC Enforcement Division staffer in early nineties and in private practice for the last 30 years). You are close but allow me to make it more precise. The holding is that where the SEC seeks to claim violation of one or more anti-fraud provisions of the federal securities laws and they seek a civil monetary penalty, the SEC must file suit before an Article III court and the defendant has the 7th Amendment right to jury.
Ever since Dodd Frank (2010), the SEC has had the congressional authority to seek fines against both regulated and non-regulated persons and entities in its in-house courts (as well as in federal court). While it is true that this decision is of a piece with the Court’s grand campaign against the administrative state, there are very serious reasons why the Roberts majority is correct. Were you sued by the government for money alleging you committed fraud, you would not like the fact that (a) the ALJ (judge) works for the same entity as the prosecution; (b) the ALJ’s decision is appealable to the very body that prosecuted the case, meaning the SEC; (c) that you are seriously limited in discovery (only 3 and sometimes 5 deposition max) and (d) hearsay can be used as evidence against you. It is an unfair process and is kind of a mordant joke to longtime SEC defense practitioners. Administrative Proceedings can still be used for non-fraud charges and where no fine is sought, which is plenty. Let the SEC go to real Court with real Judges (and juries) in a “fair” (as much as litigating against the government’s near-unlimited resources is ever fair) fight. If they lack the manpower and other resources, Congress should give it to them. That’s their job.
1. The decision of the ALJ/SEC can be appealed to a district court.
2. The system in place allows the ALJ/SEC to strip your license and bar you from the business. Why is that not subject to jury trial for the same reasons? It’s because the finance business has important implications for capitalism and protecting it from fraud is crucial to its role.
Yes, the final decision of the SEC is appealable to the Circuit Court of Appeals. Few are the litigants with that kind of financial staying power. And, at least until tomorrow, the SEC can rely on Chevron deference. In any event, that hardly seems to right a listing ship.
Yes, the system permits bars and suspensions of registered persons as well as various other remedies, such as disgorgement, imposition of business limitations and independent monitoring. Several defendants in SEC administrative proceedings have challenged industry bars; they just have not proceeded as far as Jarkesy. Losing ones license (or even being suspended for a number of months) often has at least if not more financial significance that civil fines to defendants in SEC actions so I am not sure I understand your critique there unless it is some form of “capitalism sucks. man.”
Thinking a bit further about my statement that SEC “Administrative Proceedings can still be used for non-fraud charges and where no fine is sought” and I am unsure that is true. The 5th Circuit ruled that the SEC administrative proceedings were unconstitutional for two other reasons as well (grant of unfettered discretion to the SEC to choose between enforcing identical claims in either federal district court or its own administrative tribunal violated the nondelegation doctrine because the assignment of claims to a non-Article III tribunal is an Article I power as well as that the two layers of for-cause removal protections of ALJs violated Article II’s Take Care Clause.) SCOTUS did not reach these issues, thereby leaving them intact. This is a far broader vitiation of the program.
Re: “ If they lack the manpower and other resources, Congress should give it to them. That’s their job.”
House Appropriations Committee legislation cuts SEC funding and curbs CAT data collection, among other things.
The Sacklers are an excellent example of Balzac’s observation that “behind every great fortune lies a great crime.”
I practiced bankruptcy law for 25 years. I first saw the issue raised in the Purdue Pharma case in a plan brought to me by a client who was furious that his claim was extinguished for the amount they got under the plan. The plan was approved in New York, as I recall, in the Second Circuit, which had blessed the release of non-debtor third parties in several cases. The creditors committee had approved the plan, so my client would have had to go it alone, and the cost could never be recouped from an increase in claims.
That won’t happen under this decision. I even agree with Gorsuch’s approach, ejusdem generis, in interpreting catchall clauses in legislation. The dissent’s argument from the policy of the Bankruptcy Code is wrong. It’s not to solve collective action problems, though it can in some cases be used for that purpose. Instead, it’s to provide a means for paying creditors the maximum amount in the shortest possible period of time, and giving the debtor a fresh start (except, of course, when the debtor is liquidated.)
I know this just means years of delay for the victims of Purdue Pharma. But at least the morally monstrous Sacklers will be deluged with litigation for the rest of their worthless lives. The US Trustee is not wrong to argue that this prospect will eventually force these people to give up a much bigger part of the proceeds of their “great crime”.
Adding: the undisputed fact is that the Sacklers milked the company of billions of dollars that could have gone to creditors and hid the money overseas in trusts, like some pirate hiding stolen treasure in Aruba. We don’t let thieves blackmail us with taunting partial returns of stolen goods. We can’t do the civil equivalent.
Amen to Balzac.
Upending the deal delays payouts to victims. But it improperly relieved the Sacklers of personal liability and let them keep billions that should also go to those victims. Having their names taken off a few academic buildings and opera houses was hardly sufficient punishment.
Trump’s 180 turn on early voting (he didn’t mention mail -ins) worries me they have a new plan to cheat, or to create enough chaos or confusion about the results to claim fraud, or claim victory. Add to that snot rag Rodger Stone’s recent confession they have a plan already in place ,” judges and everything.
Little doubt they do. Any ideas from the EW forum what in hell they might think they’re going to do?
Making ” arrangements with a judge or judges before a crime is even committed seems like it should be illegal.
“Nearly 21,000 children are missing in Gaza. And there’s no end to this nightmare”
That’s on top of the approximately 40,000 confirmed deaths already, and many more injured. If those missing are presumed dead, it would add 50% to the Israeli total.
https://www.theguardian.com/global/commentisfree/article/2024/jun/27/gaza-missing-children
“All Oklahoma schools are required to incorporate the Bible and the Ten Commandments in their curriculums, effective immediately, the state’s chief education officer announced in a memorandum Thursday.”
https://www.cnn.com/2024/06/27/us/oklahoma-schools-bible-curriculum/index.html
So far, I haven’t been able to find a copy of the memorandum itself, though the CNN article quotes from it. No doubt this will be quickly challenged in court.
Related, here’s a lawsuit filed in Louisiana to challenge its law requiring the 10 Commandments in classrooms: https://ffrf.org/uploads/3-24-cv-517RoakevBrumley.pdf
Let’s start with Genesis 19-31 et seq., the story of Lot and his daughters.
Judges 19 lesson plans will also be interesting.
From Ryan Walters, State Superintendent of Public Instruction, Oklahoma State Department of Education’s press release June 27, 2024:
“Additionally, the State Department of Education may supply teaching materials for the Bible, as permissible, to ensure uniformity in delivery.”
https://kfor.com/wp-content/uploads/sites/3/2024/06/Walters-Requires-Bible-be-Taught-in-Oklahoma-Classrooms20.pdf
Not even an unfunded mandate to torture the Establishment Clause.
I’m fairly certain Ryan Walter’s ‘does not know the meaning of the word’ “permissible”.
Meanwhile, some TX and Utah SDs have removed Bibles for containing “vulgarity or violence” inappropriate for the age group.
What a quandary for a *Liberty Mom*.
So many articles and not one link to the memo.
There’s also no memo posted at the State Department of Education site: https://sde.ok.gov/state-board-education
The “directive” is listed on the AGENDA for the June 27 meeting:
https://sde.ok.gov/sites/default/files/Agenda%20JUNE%2027%2C%202024.pdf
Solution is for these religious groups is to send their children to a religious school not a public school.
“When a religion is good, I conceive it will support itself; and when it does not support itself, and God does not take care to support it so that its professors are obliged to call for help of a civil power, ‘tis a sign, I apprehend, of its being a bad one.”
~Benjamin Franklin~
Do these people not have any sense of shame… or irony?
They are tacitly, if not explicitly, admitting that Christian parents and their church’s ministers/pastors/etc. have completely failed at spreading the Good Word of their Lord, to the point that they need “big government’s” assistance in doing what True Believers™ seem incapable of doing?
But they don’t want to pay that tuition.
They’re learning that running a school isn’t cheap.
I know of one church-affiliated private school in west Texas that gave up and asked to become public, because they couldn’t get enough money to stay open. It had a good reputation, but that doesn’t pay bills.
CNN links to a VIDEO of the meeting on Facebook:
https://www.facebook.com/OklaSDE/videos/1553604158838947
How ironic that just before he launches into his announcement of the Bible requirement, he talks about “activist teachers” and says “It is of the utmost importance that we continue to protect our kids from indoctrination.” I guess activist superintendents are just fine. No surprise that he starts the meeting with a prayer.
Directive requiring Oklahoma schools teach the Bible effective immediately https://www.fox23.com/news/directive-requiring-oklahoma-schools-teach-the-bible-effective-immediately/article_832a6ab2-34b0-11ef-bb64-f74e03568a73.html FOX23.com News Staff 3 hrs ago
Every fucking GOP state is clamoring to get its unconstitutional cases before this Supreme Court, before it changes personnel. The hell with subsidizing parochial schools and taxpayer-paid vouchers for private schools. Let’s skip right to teaching fundamentalist christian beliefs in all public schools. So much easier. Good grief.
Of course, Oklahoma is in the Fifth Circuit, so the case as it gets to the Supremes will be in a posture most favorable to the fundamentalists.
Ryan Walters is a religious nut. He doesn’t care about anything except spreading *his* beliefs.
I ask indulgence to use this open thread to note the passing of Kinky Friedman. Kinky, Molly Ivans, & Ann Richards taught me there were good things in Texas.
Here’s his recording of Warren Zevon’s “My bleep’s bleeped up” https://youtu.be/VYEhir_PRSA?si=KjvYVCI9ltQWUKmg which seems fitting today, although I suspect we all have different favorite songs more political and more satirical.