80 Years Ago SCOTUS decided NLRB v Jones & Laughlin Steel

ISCOTUS describes This Day in Supreme Court History—April 12, 1937.

In National Labor Relations Board v. Jones & Laughlin Steel Corporation, ten former workers of Jones & Laughlin Steel brought a suit against the company, asserting that they were illegally fired after they attempted to unionize and join the Steel Workers Organizing Committee. The recently created National Labor Relations Board ordered Jones & Laughlin Steel to rehire the employees and compensate them for any back pay owed them.

After a string of controversial decisions striking down New Deal legislation, the Supreme Court changed course. In a 5-4 decision, the Supreme Court upheld the bargaining provisions of the Wagner Act. Chief Justice Charles Evans Hughes delivered the opinion of the Court, arguing that the commerce power extended to regulations designed to prevent a potential strike at Jones & Laughlin, since a work stoppage would have an “immediate, direct, and paralyzing effect upon interstate commerce.” “Collective bargaining is often an essential condition of industrial peace,” Hughes asserted, and a “refusal to confer and negotiate has been one of the most prolific causes of strife.”

The decision was a landmark ruling on the meaning of the Commerce Clause. Its reasoning granted far more authority to Congress to regulate economic relations than the Court had previously allowed. It was also a major victory for industrial and factory workers across the country. The Wagner Act helped usher in a new era of labor relations, one in which union power, backed by the authority of the federal government, entered into negotiations with industry on far more equal footing than before.

Does the 9th Circuit really have an 80% reversal rate?

Last week NPR unpacked a bullshit statistic Trump repeated today Does the 9th Circuit really have an 80% reversal rate?.

‘Reviewed by the Supreme Court’ is the operative qualifier — and it’s a very, very important one. Very few cases actually get reviewed by the Supreme Court from any of the circuit courts, and most of them don’t even generate appeals to the Supreme Court in the first place. Parties file appeals to the Supreme Court, which then has to decide whether the justices want or need to review the case. If fewer than four of the justices think that the appeal has merit, the application for certiorari is denied, keeping the appellate decision in place. This happens in most cases.

What does that mean in practical terms? It means that the Supreme Court’s grant of certiorari tend to favor those cases that are likely to be overturned. It’s a major selection bias, and as we’ll see, it gives a very distorted picture of what happens in the appellate court system.

Let’s take a look at the ABA report that generated this talking point. The study covered ten years (1999-2008) across all appellate circuits. During that period of time, the total number of cases decided by all appellate courts was 604,665. How many did the Supreme Court accept for their review? A mere 660 cases, or 0.109% of all decisions reached by the appellate level. The Ninth Circuit accounted for 175 of the cases reviewed, or about 26.5%, but the same circuit handled 114,199 of all appellate cases — 18.9% of the total.

They have some graphs too.

Supreme Court Nominees

It's worth noting that just before the election, several Republican Senators were making the case, that if Hillary won, they'd block any nominees of her's for four years. As the Atlantic reported at the time, More Republicans Are Vowing to Block Clinton's Supreme Court Nominees If She Wins.

Now the debate has shifted, as several Republican senators have suggested simply not allowing any Democratic selections to the Supreme Court at all. Late on Monday, CNN reported on private remarks made by Senator Richard Burr, a North Carolina Republican up for reelection. He said that there will be no lame-duck confirmation, and then added, “And if Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.”

That aligns him with Senator Ted Cruz, who last week told Dave Weigel, “There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”

A week before that, Senator John McCain, who is also running for reelection, said, “I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” Later, however, a spokeswoman partially walked back his comments, saying the Arizonan will “thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications as he has done throughout his career.”

I hadn't really heard of Garland or Gorsuch before. I've read a little on both from the sources I typically do (SCOTUSblog, Dahlia Lithwick, Jan Crawford Greenburg, etc.). Both seem like reasonable picks, they're clearly competent (which wasn't at all clear for Harriet Miers). If you look at ideology, and if "being in the mainstream" counts to you, Garland is more to the center than Gorsuch. Obama's pick would have been the most conservative of the liberal justices, between Breyer and Kennedy. Sen Orin Hatch in 2010 had called him a consensus pick. Gorsuch seems to be very much in the mold of Scalia, placing him as the second most conservative Justice next to Thomas. Of course there's no rule or even norm suggesting that a new Justice has to fill the same ideological role as the one they're replacing, as Alito replacing O'Connor shows. But there is a trend for Democrats to pick moderate-liberals and Republicans to pick conservatives ones.

So the real problem here is that Garland never got a hearing. The Republicans stole a seat and while that suggests some ownership that doesn't feel right, the sentiment is accurate. Democrats could try to take the high road and say Gorsuch is a qualified pick (and better than many others that Trump floated) but what does that get them? Republicans aren't playing fair and Democrats have no incentive to so either. This is one of the norms that has been eroded (I'd argue by Republicans), and we have to figure out a way to fix it, or our democracy is doomed.

SCOTUS Nominee Neil Gorsuch

Here's SCOTUSblog's Potential nominee profile: Neil Gorsuch

Here's another SCOTUSblog article, Judge Neil Gorsuch – Colorado native and Washington, D.C., veteran

And here's a take by Georgetown law professor Neal K. Katyal, an acting solicitor general in the Obama administration, Why Liberals Should Back Neil Gorsuch

Overall he seems like a reasonable conservative pick. I'm happy to hear he's a good writer. I'm also happy that it seems he might limit the President's powers. Of course, I don't like most of his views on social issues. The real problem is that this is Trump's 12th day in office and I thought President's could only nominate Justices in their first week. Shouldn't we wait until the election so the people can make their views known?

Is the Consumer Financial Protection Bureau constitutional? The D.C. Circuit says no. Here’s why.

Andrew Rudalevige writes Is the Consumer Financial Protection Bureau constitutional? The D.C. Circuit says no. Here’s why. It’s a nice history lesson of Supreme Court decisions on something that seems so obvious, can the president fire appointees?, but like many things is more complex the more you look into it.

Justice Breyer on Charlie Rose (and the Second Amendment)

Last night Charlie Rose interviewed Justice Breyer. Breyer can be wordy and it's rare for any Justice to talk in any detail about cases, but the last 10 mins were really good. Charlie asked "What does the second amendment mean to you?" Here's Breyer's answer:

It says, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." What did I think it meant and John Stevens thought it meant and Ruth Ginsburg thought it meant and what David Souter thought it meant.

In article one of the Constution it gives to Congress the power to call up and regulate state militias. There was a lot of concern, if you read the Federalist Papers you just get a feeling for it; there was a lot of concern and fear that congress might do that, and disband them. And replace the state militias after they had disbanded them with a federal army. And that, many people said vote no on the constution because if they can do that, then they can, the federal government, destroy your freedom.

Well said Madison, in a sense if I paraphrase him, 'never fear we will put in the constution an amendment which says congress can't do that'. It cannot call up and disband the state militias. Why? Because, a well armed militia is necessary for a free state, ie a state militia. And therefore the right to keep and bear arms shall not be infringed. In other words they're talking about that. That's what I thought they were talking about. Which is not the right of an individual to keep a gun next to his bed. Okay?

That's perhaps the most succinct refutation of Heller I've read. His next answer on how he and Scalia approach decisions differently is equally good.

Ruth Bader Ginsburg Can Probably Do More Push-ups Than You

Ruth Bader Ginsburg Can Probably Do More Push-ups Than You "When ABC’s Dan Abrams asked Ginsburg about her workout routine, she revealed that she can do 20 push-ups: ‘I do 10, and then I breathe, and then I do 10 more.’ She can also hold a plank for 30 seconds, which, let’s be honest, is probably longer than you can hold a plank."

Quick Note: 5-4 Decisions and Equally Divided Votes Since 1946

Empirical SCOTUS notes 5-4 Decisions and Equally Divided Votes Since 1946 "This Term was nothing if not unique.  The Justices had to sort through a majority of the decisions with one Justice missing.  With a Court of eight, the Justices could not possibly come to 5-4 decisions.  The Supreme Court was officially set at the size of nine members in 1869 and Congress has not changed this number since that time.  This Term in the Supreme Court there were zero 5-4 split decisions, including the cases where Justice Scalia voted.  Some have speculated that this could be a unique occurrence; specifically a Term with nine Justices and no 5-4 votes."

Turns out it also happened in 1969, which the article doesn't note also had a vacant seat. Abe Fortas resigned May 14, 1969 and his replacement Harry Blackmun didn't start until June 9, 1970.

When the Eight-Member Supreme Court Avoids Deadlocks, It Leans Left

The New York Times writes When the Eight-Member Supreme Court Avoids Deadlocks, It Leans Left "The court issued liberal decisions in 56 percent of cases so far this term, according to a widely accepted standard developed by political scientists that considers signed decisions in argued cases. The share is only slightly lower than in the 2014-15 term, which had the highest share of liberal decisions since the court led by Chief Justice Earl Warren in the 1950s and 1960s."

Odd SCOTUS Couples (and Trios)

Adam Feldman in Empirical SCOTUS wrote Odd Couples (and Trios). He tracks unusual combinations of justices in dissents this term. E.g.,

Now for one of the really intriguing combinations. In Bank Markazi v. Peterson, Justice Roberts wrote a dissenting opinion which Justice Sotomayor joined. This is a first for this combination that do not often align in their perspectives. In this case we do not see simultaneous dissents, but a single dissent where the two Justices agree in the rationale.

We see the favor repaid in Ocasio v. United States where Justices Roberts, Thomas, and Sotomayor dissented. Justice Thomas wrote one dissent, while Justice Sotomayor wrote a dissenting opinion that Chief Justice Roberts joined. For two Justices that so infrequently agree in dissent, these two cases present a possibility for a burgeoning voting relationship.

I wish he went into the rationales in the cases. Is there a legal principle that these two agree on? I'm also bothered by the use of "quite unique" but that's just me.

Utah v Strieff and Sotomayor's Dissent

Yesterday the Supreme Court announced a decision in Utah v. Strieff. It's a case about whether to surpress evidence a cop found while illegally searching a suspect. Since 1961's Mapp v. Ohio, the Exclusionary rule applies to evidence obtained from illegal searches, it is excluded from trial because including it (a) isnt' fair to the defendant and (b) encourages police to perform future illegal searches. There are some exceptions (as we'll see a lot). Here are the facts of this case from the Syllabus:

Narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week made him suspicious that the occupants were dealing drugs. After observing respondent Edward Strieff leave the residence, Officer Fackrell detained Strieff at a nearby parking lot, identifying himself and asking Strieff what he was doing at the house. He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop.

So everyone agrees that the detective could talk to Strieff on the street, but this was more than that, note the word "detained". The police can't "stop" or "detain" you without probable cause. Thomas' opinion says "Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so." Thomas called this "a good-faith mistake". He went on to apply three factors in a decision process to see if the evidence needed to be excluded and concludes it doesn't.

It's not surprising that Alito, Roberts and Kennedy joined this opinion. Conservatives in general don't like the exclusionary rule. If there's evidence you commited a crime the law should use it to prosecute you. Apparently they don't agree with the idea of encouraging the police with incentives to not break the law. Sotomayor, Kagan and Ginsburg dissented. I don't know why Breyer joined the majority in this, in the past he's supported the exclusionary rule.

So both Kagan and Sotomayor argued against the majority's logic. The opinion and two dissents are short, 31 pages in all (including the Syllabus). Read those or Orin Kerr's excellent SCOTUSBlog post. But what is getting the post press is Sotomayor's "blistering dissent". This is referring to the last section, which is powerfully written (perhaps moreso after making it through Thomas' boring prose). Scalia would approve (though he clearly would have voted with the majority). Here is the last section of Sotomayor's dissent with the references turned into the best links I could find. The referenced cases are mostly Wikipedia pages, so you can find a summary about them.

Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.

Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. Whren v. United States (1996). That justification must provide specific reasons why the officer suspected you were breaking the law, Terry, but it may factor in your ethnicity, United States v. Brignoni-Ponce, (1975), where you live, Adams v. Williams, (1972), what you were wearing, United States v. Sokolow, (1989), and how you behaved, Illinois v. Wardlow, (2000). The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous. Devenpeck v. Alford, (2004); Heien v. North Carolina, (2014).

The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. See Florida v. Bostick, (1991). Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” Terry. If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’ ”.

The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.” Atwater v. Lago Vista, (2001). At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Florence v. Board of Chosen Freeholders of County of Burlington; Maryland v. King, (2013). Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. Chin, The New Civil Death, (2012); see J. Jacobs, The Eternal Criminal Record (2015); Young & Petersilia, Keeping Track, (2016). And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future. A. Goffman, On the Run (2014).

This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner. See M. Gottschalk, Caught 119–138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95–136 (2010). For generations, black and brown parents have given their children “the talk”— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.

We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274–283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.

I dissent.

Apropos to this, yesterday I saw this story, Boston Students Learn To Exercise Their Rights. 8th graders know the Miranda speech from TV but are being taught what it actually means.

The So-Called Biden Rule

The Biden Rule is a fiction.

In the 14 years 1972-1986 the court was pretty stable, just two changes, Stevens replaced Douglas and O'Connor replaced Stewart. Then in the 6 years 1986-1992 there were four changes:

• 1986: Warren Burger -> Scalia
• 1987: Lewis Powell -> Kennedy (after Bork's June nomination was rejected in October)
• 1990: William Brennan -> Souter
• 1991: Thurgood Marshall -> Thomas

The Clarence Thomas nomination was certainly contentious and it came after the failed Bork nomination. The Supreme Court term was about to end and Justices usually retire just after the term to give the most time for a confirmation before the next term. Justice Harry Blackmun was 83.5 years old and Justice Byron White had just turned 75 a few days before. People didn't know if they would retire and while none did in 1992, in the next two years two did Byron White who was replaced by Ruth Bader Ginsberg and Harry Blackmun was replaced by Stephen Breyer.

Biden made a long speech suggesting ways to repair the damage done to the institution by the Thomas confirmation and to depoliticize the process. He wanted more consultation between the President and Senate, particularly when they were of divided parties and he wanted a broader evaluation process so that the hearings themselves were less important. Obviously he wasn't successful.

Here is Biden's full 1.5 hours speech from June 25th 1992. Remember, there was no vacancy at the court when he said this.

Here are some relevant parts:

9:32 - 9:34: "As a result, it is my view, that if a Supreme Court Justice resigns tomorrow or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not, and not name a nominee until after the November election is completed. The Senate too Mr. President must consider how it would respond to a Supreme Court vacancy in the full throws of an election year. It is my view that if the President goes in the way of Presidents Fillmore and Johnson and presses an election year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nominee until after the political campaign season is over. And I sadly predict Mr President that this is going to be one the bitterest, dirtiest presidential campaigns we will have seen in modern times. I'm sure Mr. President after uttering these words, some, some will criticize such a decision and say that it was nothing more an attempt to save a seat on the court in hopes that a Democrat would be permitted to fill it. But that would not be our intention Mr. President, if that were the course we were to choose as a Senate, to not consider holding hearings until after the election. Instead it would be our pragmatic conclusion that once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and essential to the process. Otherwise, it seems to me Mr. President we will be in deep trouble as an institution."

9:44: "Others will say that I'm not being contentious enough. They suggest that since the court as moved so far to the right already, that is it too late for a progressive Senate to accept compromise candidates from a conservative administration. They would argue that the only people we should accept are liberal candidates which are not going to come, nor is it reasonable to expect them to come, from a conservative Republican president. But I believe that so long as the public continues to split its confidence between the branches, compromise is the responsible course both for the White House and for the Senate, therefore I stand by my position, Mr. President, if the President consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support as did Justices Kennedy and Souter. But if he does not as is the presidents right, then I will oppose his future nominees, as is my right."

So to compare it to the current situation. We're obviously "in the political season". We're a little earlier than the end of June and this is a vacancy produced by a death, not a planned retirement (which Justices often time during the presidency of their own party). Any hearing would definitely be contentious. It's clearly a political issue because Scalia was a conservative icon and Obama should not be expected to nominate a conservative (as Biden said of Bush Sr. nominating a liberal). By Biden's ideas, Obama perhaps shouldn't have nominated anyone until after the election, but he nominated the most moderate of his choices, someone Republican Senators have said would be a good pick, he did okay nominating someone with advise of the Senate. Now the Senate should do some investigation behind closed doors and if there isn't wide consensus, put off public hearings until after the election, so in mid November, the so-called lame duck period.

It's not ideal because it affects more than just the fall term. But it's also completely different than what the Republicans are describing. They typically say that Obama shouldn't nominate anyone, that the next president should, and they won't consider any nominee he makes. McConnell has softened his statements a little saying perhaps they'd consider someone in the lame duck session. The problem with that is, it is politicizing the situation even more, they'd presumably do this only if Republicans lost in the election (either the presidency or perhaps the Senate majority). Biden was trying to improve the process while there was no vacancy, McConnell actions have all been partisan.

Merrick Garland would shift the Supreme Court left. A lot.

Eric Posner writes in Slate Merrick Garland would shift the Supreme Court left. A lot. and I agree with everything in the article. After pointing out the obvious, that swapping Scalia for Garland will change the 5-4 tide from conservative to liberal, and pointing out both sides overturn the other sides decisions, he concludes with:

Of all the bizarre and broken features of the American political system, the selection of Supreme Court justices tops the list. The justices claim the last word on the most controversial issues of our time—abortion, gun rights, religious freedom, affirmative action, gay marriage, campaign finance. Yet they are unelected, unaccountable, out of touch—drawn from a tiny elite of Ivy League–educated lawyers—and completely inexperienced in politics. Possibly to resolve the cognitive dissonance of elite rule in a democracy, the myth has arisen that the justices decide these issues by applying the “law” when in fact they apply their ideological commitments in legal guise. So powerful is this myth that it would be considered the highest breach of political etiquette for anyone to ask Judge Garland for his views on the very political controversies he will resolve. Not only are we denied the right to vote for or against this man who will decide these issues for the next two decades at least; we are not even allowed to know what he thinks.

One-third of all U.S. presidents appointed a Supreme Court justice in an election year

The Washington Post puts it in perspective, One-third of all U.S. presidents appointed a Supreme Court justice in an election year "The historical record supports that position: 14 presidents have appointed 21 justices during presidential election years. A half-dozen presidents, classic lame ducks, filled Supreme Court seats even though their successors had been elected. Six lame duck presidents appointed Supreme Court justices – before their successors took office."

The tragedy of Antonin Scalia.

Eric Posner wrote a great piece, The tragedy of Antonin Scalia. "He thought he could remove politics from the Supreme Court, but he only made things worse."

Scalia refused to acknowledge that originalism does not enable justices to decide cases neutrally. If they choose to adopt this methodology, and manage to figure out a way to make it constrain them, they are committed to enforcing mostly 18th-century values—which are, by definition, conservative.

In fact, the historical sources are rarely clear, and foundational questions about how originalism is supposed to proceed—including how much weight (if any) should be given to post-founding judicial precedents that deviate from the original understanding, and how broadly constitutional principles like “due process” and “equal protection” should be understood—are irresolvable. One of the original originalists—Supreme Court Justice Hugo Black—was a stalwart liberal. A liberal Yale law professor has mischievously proclaimed himself an originalist and shown how originalism can lead to liberal outcomes. Scalia’s interpretation of originalist sources has been frequently criticized, and in notable instances when he could not bend them to his will, he simply ignored them. His belief that campaign finance laws and commercial speech regulations violated the First Amendment would have surprised the founders, for example.

Why liberals loved to hate Antonin Scalia.

Dahlia Lithwick onWhy liberals loved to hate Antonin Scalia.. Read the whole thing, it's short but these were my favorite paragraphs:

For years and years, I told anyone who asked that the day the high court lost Scalia would be the day I quit covering it. On that day, which came Saturday, I knew the court was also losing everything dramatic and absurd and quotable, even as it lost its cartoon supervillain. What would be left when the man in full was gone? I won’t miss his mockery or the casual slights. In some ways he prefigured the 2016 election, with all of its finger-pointing, rage, and quick-on-the-trigger sound bites. Still, I fear that the court will be a less vivid, less passionate place in his absence, even as some of the most hateful of the court’s views will now perhaps be moderated.

In my years covering the court, I ground my molars into dust most weeks, wondering how Scalia could make being so wrong seem so intriguing. Prisoners, women, gays, minorities, workers, and living constitutionalism lost a great intellectual foe on Saturday. And in the coming months we may be witness to one of the nastiest constitutional battles in a generation. But for now, I am still trying to absorb the fact that a man who seemed like he would live, and love, and scoff, and snort forever was not immortal. And that as reprehensible as so many of his views were, we will be wrestling with him for decades to come. Asked for his reflections on Bush v. Gore, the justice was fond of saying, “Get over it.” We will not get over Scalia for a long, long time.

Democrats and Republicans are both making misleading arguments about Justice Scalia's replacement

Vox explains the history and how Democrats and Republicans are both making misleading arguments about Justice Scalia's replacement .

Supreme Court Justice Antonin Scalia, Known For Biting Dissents, Dies At 79

Nobody writes about the Supreme Court like Nina Totenberg. if you only read one Scalia obit, this should be it, Supreme Court Justice Antonin Scalia, Known For Biting Dissents, Dies At 79

Antonin Scalia found dead at West Texas ranch

The San Antonio Express reports Senior U.S. Supreme Court Associate Justice Antonin Scalia found dead at West Texas ranch "According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body."

Condolences to his family. The political ramifications are going to be interesting.

He would have turned 80 next month. He is the 15th longest serving Justice.

Worth reading up on the Thurmond Rule (named for racist) because people are going to bring it up.

I wonder if Justice Thomas will start asking questions at oral arguments.

Oral Argument

Tor published Oral Argument "We’re thrilled to have the opportunity to publish internationally bestselling author Kim Stanley Robinson’s first stand-alone short story in twenty-five years. In it, we get a glimpse of a very green future through the lens of a Supreme Court transcript."

It's a short and fun story about science and patents and the supreme court. The prior cases he references are real.