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This is a step towards a deeper and more established flaw: differing standards of review. It is clearly a violation of equal protection to give "strict scrutin
by goodluckchuck 2y ago
This is a step towards a deeper and more established flaw: differing standards of review.
It is clearly a violation of equal protection to give "strict scrutiny" to some claims, "intermediate scrutiny" to others, and then apply only a "rational basis" test to others. All parties are entitled to "equal paternal conservation of the law" regardless of their class, be that racial, sex, or otherwise.
Early comments by justices in the 50s and 60s stated they never intended to establish such a paradigm, but law schools and lawyers adopted it and essentially foisted it upon the court.
- axus 2y agoNot knowing how it works: can the people filing lawsuits choose whatever court has judges with a history of cancelling regulations?
- Y-bar 2y agoLegal Eagle in his YouTube analysis on the matter said that corporations will absolutely be able to venue shop for favourable judges.
- theossuary 2y agoOverturning Chevron itself didn't allow for that, but the (less talked about but just as important) ruling in Corner Post did. The court ruled the default statute of limitations for an injury caused by a regulatory agency is six years from the time of first injury, instead of six years from the enactment of the policy (what it was originally). This means any interested party can create a new entity, fund it, and have it be injured by the policy they wish to challenge; and finally use it as the vehicle to sue the agency. Wherever this entity is created would then be where it'd have standing to sue, allowing for the shopping of a friendly judge. https://www.scotusblog.com/2024/07/supreme-court-expands-time-frame-to-sue-federal-agencies/ https://www.scotusblog.com/2024/07/supreme-court-expands-tim...
- twoodfin 2y agoWhat paradigm is available to replace it? Not a Constitutional scholar (though I love the Oyez Project's podcast of SCOTUS oral arguments!), but surely you need the Court to apply a higher standard of review when Congress treads near free speech protections than when they're setting admiralty law. I suppose one could say, "Just read the text! Congress shall make no law..." But I think even the strictest originalist would concur that the Framers understood there would be times when Constitutional absolutes would come into conflict and reasonable judgments made, by the Executive, Congress, or the Court.
- goodluckchuck 2y agoI would push back on the need for a "paradigm" because as much as lawyers like rules and predictability, the judicial process is ultimately a matter of judgment. Discussion about the "factors" a court should consider is often just that, guidance to other courts about what may or may not be relevant. A decent phrasing of this that kind of puts it into a "paradigm" would be recent 2A cases suggesting courts should look to the "history and tradition." All that's really saying is to do your legal research and make a decision. As conflicts between reasonable judgments, that's the judicial process. The supreme court can allow circuit splits to exist, or they can express their own opinion. Of course, the Executive is free to make reasonable judgments within their realm. They're free to not prosecute questionable cases, and they're also free to prosecute defendants on cases where the court ultimately disagrees (that the conduct was legal).
- twoodfin 2y agoSo that's clarifying, but I'm not sure how it's making an argument that "strict scrutiny" vs. "rational basis" isn't at the very least a good shorthand that captures the strongest available historical interpretation of the Court's varying powers of review.
- goodluckchuck 2y agoI don't understand what you mean by varying powers of review.