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Four decisions were released today. We had a decision on the SEC vacating some of its enforcement powers, 6-3 with only the 3 liberal justices dissenting. We

Four decisions were released today. We had a decision on the SEC vacating some of its enforcement powers, 6-3 with only the 3 liberal justices dissenting. We had this decision, which was 5-4, although it wasn't a clear ideological split. We had a 5-4 decision vacating an EPA regulation, with the 3 liberal justices and one of the more moderate conservative justices dissenting. We had a 6-3 decision on the EMTALA-abortion decision, with the 3 most conservative justices dissenting. (Technically it's per curiam, and the "majority" opinion is unsigned. But every justice signed onto a concurrence or a dissent, so we know exactly how every justice voted in this case). Yesterday, we had a decision on social media which was 6-3, with the 3 most conservative justices dissenting. Yesterday, we also had a decision on bribery which was 6-3, with the 3 liberal justices dissenting. Out of the most recent 6 decisions, we have 4 decisions that clearly evidence a 3-3-3 ideological split between 3 liberal justices, 3 more moderate conservative justices, and 3 very conservative justices that would be able to pretty fully predict how they would vote on the cases, and there's another case that it's partially predictive on (a 5-4 that peels off either Roberts, Kavanaugh, or Barrett doesn't contradict this lineup). Furthermore, the one case that the ideological breakdown doesn't work on is the case that is the least politically charged (it's literally resolving a circuit split, as opposed to please-intervene-in-this-politically-charged-case). So yeah, this doesn't disprove the thesis that SCOTUS has become increasingly politicized over the past few years.

jandrese 2y ago
Is there any corruption law that this court won't overturn? They seem extremely "pro" on quid pro quo.
- rayiner 2y ago
  They didn't "overturn" this "corruption law." This was a prosecution under 18 USC 666, which is titled "theft or bribery concerning programs receiving federal funds." In this case, the question was framed to the Supreme Court whether 18 USC 666 applies to so-called "gratuity" payments. That framing was because the prosecution in the case below could not prove that the defendant had anticipated a payment in the future when he undertook the official act. (The defendant himself maintained that the payment was for subsequent consulting.) Federal law makes a distinction between those two things. You can still bring an 18 USC 666 case for bribery, you just need to prove that the payment had some ability to influence the official act.
  - jandrese 2y ago
    In this particular case a mayor rigged the competition for a garbage truck contract so that one particular company would win it. That company then overcharged the city and gave a kickback in the form of $13,000 to the mayor. The Supreme Court said this was fine and let the mayor off of the hook. If you can't prosecute with this level of evidence the law is effectively dead.
    - rayiner 2y ago
      That's not what the Supreme Court decided, and its extremely misleading to suggest that. At trial, the government alleged the mayor had "rigged the competition." But the government argued, and the jury was instructed, and the Seventh Circuit agreed, that the government did not need to prove that. Because, under the Seventh Circuit's view of the law, it did not matter whether the subsequent payment actually influenced his official act. So on appeal, the Seventh Circuit upheld the jury verdict on the assumption the government did not need to prove that the competition was actually rigged. So the case that came up to the Supreme Court didn't have the issue of whether he rigged the competition. The jury was told it didn't matter, and we don't know what the jury would have decided had they been told something else. The question before the Supreme Court was only whether 18 USC 666 requires proof that the payment did or could influence the official act. It did not consider the factual scenario under which he rigged the competition because we don't know if the jury would have found he did that. Now the case goes back to the trial court to see if the government wants to retry the case, where they actually have to prove corrupt influence.
      - jandrese 2y ago
        > The question before the Supreme Court was only whether 18 USC 666 requires proof that the payment did or could influence the official act. And the Supreme Court's finding is that it did not because the payment happened after the action. Certainly corrupt officials in the future will never figure out a way to exploit this loophole. This isn't the first corruption case before the court where the standard of proof seems to be "they need to write 'This is a bribe' on the notes line of the check for it to count".
rayiner 2y ago
Politicization and ideological polarization are two different things. Take Dobbs for example. That was an ideologically polarized decision, not a political one. Roe is the product of a judicial philosophy that conservatives think is fundamentally wrong, even if they don't oppose abortion. For half a century, conservatives were unified in saying they would overturn Roe, even though--as we have seen subsequently--there was a lot of intra-party conflict about what abortion law should actually be. Dobbs hurt the party that appointed the justices that voted for it. Trump would probably be cruising to the election in 2024 if Biden didn't have that card to play. Most of the cases you identify split along ideological rather than political lines. > We had a decision on the SEC vacating some of its enforcement powers, 6-3 with only the 3 liberal justices dissenting. What the case actually held was that the executive branch imposing fines without a court order violated the Seventh Amendment. It's a separation of powers case, and reflects the same ideological debate about separation of powers that we have had for 100 years. Do you believe that the Constitutional three-branch structure should be respected, or is it obsolete in light of modern society? > We had a 5-4 decision vacating an EPA regulation, with the 3 liberal justices and one of the more moderate conservative justices dissenting. This is an executive agency decisionmaking case. Again, same debate we've been having for 100 years. > We had a 6-3 decision on the EMTALA-abortion decision, with the 3 most conservative justices dissenting. This was probably the most idiosyncratic and ideological case, but it's not political at all. It's Thomas and Alito willing to die on an ideological hill, not caring that virtually nobody in their party wants to follow them t here. > Yesterday, we also had a decision on bribery which was 6-3, with the 3 liberal justices dissenting. It was actually a decision on whether someone could be prosecuted under a bribery statute for a payment he received after taking the official act. Where other parts of federal criminal law make an express distinction between bribery (which corrupt official acts) and gratuities (which create the appearance of corruption but can't directly influence official acts). This one is probably the most overtly political. Liberals voting to expand the scope of criminal law and conservatives voting to narrow it is weird. But it's worth pointing out that the Court's conservative wing has a strong libertarian streak these days, especially Gorsuch.
rufus_foreman 2y ago
>> Out of the most recent 6 decisions That is not a representative sample of Supreme Court decisions. This is one of the last few opinion days of the year, the opinions being released are the most contentious ones the court is dealing with. Of the first 6 decisions of the year, 4 were unanimous, 1 was per curiam, and one was a 6-3 split with the dissenters being Gorsuch, Sotomayor and Jackson. Those 6 decisions would also not be a representative sample.

jandrese 2y ago

Is there any corruption law that this court won't overturn? They seem extremely "pro" on quid pro quo.

rayiner 2y ago
They didn't "overturn" this "corruption law." This was a prosecution under 18 USC 666, which is titled "theft or bribery concerning programs receiving federal funds." In this case, the question was framed to the Supreme Court whether 18 USC 666 applies to so-called "gratuity" payments. That framing was because the prosecution in the case below could not prove that the defendant had anticipated a payment in the future when he undertook the official act. (The defendant himself maintained that the payment was for subsequent consulting.) Federal law makes a distinction between those two things. You can still bring an 18 USC 666 case for bribery, you just need to prove that the payment had some ability to influence the official act.
- jandrese 2y ago
  In this particular case a mayor rigged the competition for a garbage truck contract so that one particular company would win it. That company then overcharged the city and gave a kickback in the form of $13,000 to the mayor. The Supreme Court said this was fine and let the mayor off of the hook. If you can't prosecute with this level of evidence the law is effectively dead.
  - rayiner 2y ago
    That's not what the Supreme Court decided, and its extremely misleading to suggest that. At trial, the government alleged the mayor had "rigged the competition." But the government argued, and the jury was instructed, and the Seventh Circuit agreed, that the government did not need to prove that. Because, under the Seventh Circuit's view of the law, it did not matter whether the subsequent payment actually influenced his official act. So on appeal, the Seventh Circuit upheld the jury verdict on the assumption the government did not need to prove that the competition was actually rigged. So the case that came up to the Supreme Court didn't have the issue of whether he rigged the competition. The jury was told it didn't matter, and we don't know what the jury would have decided had they been told something else. The question before the Supreme Court was only whether 18 USC 666 requires proof that the payment did or could influence the official act. It did not consider the factual scenario under which he rigged the competition because we don't know if the jury would have found he did that. Now the case goes back to the trial court to see if the government wants to retry the case, where they actually have to prove corrupt influence.
    - jandrese 2y ago
      > The question before the Supreme Court was only whether 18 USC 666 requires proof that the payment did or could influence the official act. And the Supreme Court's finding is that it did not because the payment happened after the action. Certainly corrupt officials in the future will never figure out a way to exploit this loophole. This isn't the first corruption case before the court where the standard of proof seems to be "they need to write 'This is a bribe' on the notes line of the check for it to count".

rayiner 2y ago

Politicization and ideological polarization are two different things. Take Dobbs for example. That was an ideologically polarized decision, not a political one. Roe is the product of a judicial philosophy that conservatives think is fundamentally wrong, even if they don't oppose abortion. For half a century, conservatives were unified in saying they would overturn Roe, even though--as we have seen subsequently--there was a lot of intra-party conflict about what abortion law should actually be. Dobbs hurt the party that appointed the justices that voted for it. Trump would probably be cruising to the election in 2024 if Biden didn't have that card to play. Most of the cases you identify split along ideological rather than political lines. > We had a decision on the SEC vacating some of its enforcement powers, 6-3 with only the 3 liberal justices dissenting. What the case actually held was that the executive branch imposing fines without a court order violated the Seventh Amendment. It's a separation of powers case, and reflects the same ideological debate about separation of powers that we have had for 100 years. Do you believe that the Constitutional three-branch structure should be respected, or is it obsolete in light of modern society? > We had a 5-4 decision vacating an EPA regulation, with the 3 liberal justices and one of the more moderate conservative justices dissenting. This is an executive agency decisionmaking case. Again, same debate we've been having for 100 years. > We had a 6-3 decision on the EMTALA-abortion decision, with the 3 most conservative justices dissenting. This was probably the most idiosyncratic and ideological case, but it's not political at all. It's Thomas and Alito willing to die on an ideological hill, not caring that virtually nobody in their party wants to follow them t here. > Yesterday, we also had a decision on bribery which was 6-3, with the 3 liberal justices dissenting. It was actually a decision on whether someone could be prosecuted under a bribery statute for a payment he received after taking the official act. Where other parts of federal criminal law make an express distinction between bribery (which corrupt official acts) and gratuities (which create the appearance of corruption but can't directly influence official acts). This one is probably the most overtly political. Liberals voting to expand the scope of criminal law and conservatives voting to narrow it is weird. But it's worth pointing out that the Court's conservative wing has a strong libertarian streak these days, especially Gorsuch.

rufus_foreman 2y ago

>> Out of the most recent 6 decisions That is not a representative sample of Supreme Court decisions. This is one of the last few opinion days of the year, the opinions being released are the most contentious ones the court is dealing with. Of the first 6 decisions of the year, 4 were unanimous, 1 was per curiam, and one was a 6-3 split with the dissenters being Gorsuch, Sotomayor and Jackson. Those 6 decisions would also not be a representative sample.