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Robertses, clockwise from left: Justice Owen, Dread Pirate, Chief Justice John, Red-Dress Julia
The headline of this morning was that the Supreme Court ruled that President Trump could not just drop DACA like an emotionally abused wife after so many people had relied on it to shape their lives.
Great news — although the opinion does suggest that some milder and more gradual exit strategy from DACA may be possible. (Reminder: wear a mask and maintain safe social distancing as you celebrate!)
You can read about the DACA decision and its implications in many other places, though, and other than a local angle (which we’d love to have! Write for us!) we won’t likely have much to improve on that widespread reporting. But there is something else to note about the legal aspects of this:
Something has gotten into Chief Justice Roberts!
And, like the Dread Pirate Roberts of The Princess Bride, it seems to be a role that different Justices named Roberts slip into at various times for the greater good.
John Roberts’s predecessor in this respect was Justice Owen Roberts, who served on the Court during FDR’s Administration and was part of a five-justice bloc who continually declared New Deal programs unconstitutional. That was when FDR’s brain trust came up with the idea of “Court packing” — adding a new Justice onto the Supreme Court for every Justice who had reached the age of 70. (The number of justices on the Court is set by statute, not by the Constitution, and it has reached as many as 10 in the past.) While I’ve seen scholarship disputing that this threat of Court packing is what induced Owen Roberts to finally switch and uphold the constitutionality of FDR’s programs — it was famously dubbed “The Switch in Time That Saved Nine,” which is funnier if you know the sewing based aphorism “a stitch in time saves nine,” and I don’t know how many do except for me and the Winships — most court observers still seem to accept that story as substantially true.
Well: with Mitch O’Connell having kept an Obama-appointed potential Justice off of the Court for more than a year, and with Donald Trump having gotten to make that appointment and one more, the hardball proposition of “court packing” as a countermeasure has returned — most notably from Sen. Elizabeth Warren — and lo and behold a new Dread Justice Roberts has arrived to spread terror on the high seas of … of … uh, let’s just put that metaphor aside and sail on.
As with Owen Roberts, the suddenness of John Roberts’s switching can be easily overstated. He has taken liberal positions in the past, notably on Obamacare, where a conservative decision would lead to social upheaval (such as striking down Obamacare). That decision closely resembles this one in that both turn on “settled expectations” — a principle that in my experience looms largest in the area of making retroactive changes to the law. (For a really good time , especially if you’re an opponent of government high-handedness, take a look at this Ninth Circuit opinion — which I am “intimately familiar,” as the saying goes, from my days as a judicial clerk — which among other things addresses questions of settled expectations in changing laws and regulations.)
People had ordered their lives over the continuing existence of Obamacare, at least until proper procedures were followed in repealing it, and that weighed against declaring it unconstitutional.
People had ordered their lives over the continuing existence of DACA, at least until proper procedures were followed in repealing it, and that weighed against declaring it unconstitutional as well.
John Roberts has been consistent, at least in these two significant instances, in not having the Court suddenly upset the apple cart without a really compelling reason. (If Roberts goes ahead and strikes down Obamacare after all later this month, I will revise this analysis accordingly…..)
And yet, while this analysis provides a rationale for Roberts’s position which requires no other motive, it is hard to resist the temptation to speculate that, as the saying goes, “the Supreme Court reads the newspapers” (or at least streams the news), which might not be unrelated to current events.
The question is: not unrelated how?
It’s probable that Roberts, like others who don’t have to face a Republican primary electorate, recognizes that Trump is loco en la cabeza and getting ever more dangerously erratic. If so, there is an arguable imperative to pull the brakes on his wilder actions — at least until his reign is either ratified or retracted by the upcoming election. That’s really enough to justify this decision all by itself.
But some people will no doubt speculate that Roberts has some more actively political calculus in mind. The problem with that notion is: this action cuts both ways.
One the one hand, it is a rebuke of Trump acting wildly and irresponsibly. Bad for Trump, right?
On the other hand, it offers reassurance — a promise that may turn out to be empty, especially if Trump is reelected — that the Supreme Court will reign in Trump’s worst excesses, meaning that people don’t need to fear voting for him. (I’m pretty confident that it won’t, if Trump is elected in what appears to be a fair election, but that doesn’t mean that Roberts can’t imply the promise!)
And that is good for Trump!
In any event, Roberts can’t depend on being the swing vote on the Court for long. Not only do we have the prospect that Clarence Thomas will resign if Trump loses the election (or if he wins but Democrats gain control over the Senate), extending the radically conservative hold on his seat for another 40 years or so, but the Democratic majority relies upon Ruth Bader Ginsburg and other Democrats on the court staying on the court. Without them, the swing vote becomes — I don’t know, Gorsuch?
So it’s a good day for DACA beneficiaries and for good government as well. But is it a lasting and decisive victory? No. As with so much of 2020, the victories we celebrate are generally based on our having averted an immediate calamity while the arc of horror continues to bend towards disaster.
This is indeed your Weekend Open Thread. Talk about the above, or the substance of this win for Dreamers and those who love (or even just like) them, or whatever else you’d like, within reasonable bounds of decency and discretion.
All of a sudden this weekend, this post from 2012 is getting a whole lot of hits. I presume that it has something to do with either the fall election or redistricting, but does anyone know what has prompted the attention? Is someone running a seminar?
From one of our idiot pseudonymous trash-consigned commenters
No, I didn’t know that! So I did a Google search for her name from over the past week: I think that this is what Fake Chumley is talking about:
I believe that Justia.com’s own summary of this case is proprietary, so I’ll characterize it in my own words. Lenore owed $18,714 to the State Bar of California for the costs of prosecuting and investigating one of the cases against her, as well as $5,738 in discovery sanctions, which are paid to the Plaintiff despite being ordered by the court.
lenore then declared Chapter 7 bankruptcy, which was the court changed to Chapter 13 bankruptcy when it determined that she couldn’t fund her reorganization plan, so the question was what if any monies would she still have after the bankruptcy (what are called “non-dischargeable” debts and which she did not have to pay (“dischargeable” debts.)
Under the controlling ruling prior to this decision, the State Bar was entitled to require her pay both amounts prior to restoration of her license. However, the court decided that the panel who had decided the case in the 1980s hadn’t used the sort of textualist method favored by Justice Scalia, and that because discovery sanctions are paid to the plaintiffs rather than the they would overturn the precedent (and this the order) with respect to the $5,738 in discovery sanctions. So she got lucky there.
The same controlling precedent, however, said that she did have to pay costs — the $18,714 — to the State Bar, which is “quasi-governmental” and falls within the protection of a bankruptcy exception for costs owed to the government.
In other words, Lenore did eliminate 23.47% of her $24,267 debt due to her bankruptcy, due to a majority conservative panel overturn a use of the old methodology from the 1980s — which strikes me as an extremely dangerous precedent that risks setting attorneys free to make textual arguments on all earlier non-tectual precedents.
So, uh, congratulations to Lenore for wreaking that havoc! (Unless this part of the decision is overturned en banc, which I suspect it might be.) the problem for her is that the State Bar (which is pretty clearly the overall winner in this case) will presumably seeks its costs for the appeal, which will likely be granted (The opinion dismisses one of Lenore’s arguments with “[t]his is a non-starter”, which sure sounds they’re calling it frivolous to me.) And my guess is that that will cost more than the %,738 that she saved.
Anyway, writing this gives me a pretty good idea for a law journal article, which perhaps I’ll start on soon. If Fake Chumley wants to sent us a comment explaining how and why he or she or it or they still considers this a win, I’ll consider publishing it once I take out all of the anonymous insults — amusing and impotent-rage-filled as they usually are.
If anyone wants to read the PDF, it’s at this link: https://cases.justia.com/federal/appellate-courts/ca9/19-60023/19-60023-2020-06-10.pdf?ts=1591808589
I wonder if “Chumley” is actually Lenore.
Who else would know this little bit of news, or care, or spin it as great news?
It’s actually getting a lot of play right now, because the audacity of dismissively overruling the Bankruptcy Court, Bankruptcy Appellate Panel, and the freaking U.S. Supreme Court itself (!) on a matter of statutory construction because it did not employ Scalia-style textualism back in the 1980s — punchline: Scalia himself was in the majority! — is not the sort of thing that you see every day. (Or every decade.) Lenore’s famous now, just as is Tulsa’s BOK Center, and for similar reasons.
As for whether it’s Lenore, let’s rifle through the trash. (I’ll focus on the ones aimed at me, not at you):
Ah, the occupational hazards of running a blog! It’s a pleasure to finally get a chance to publish these; they crack me up.
I don’t think that Fake Chumley is actually Lenore, although the existence of an idée fixe might suggest otherwise. To my ear, it sounds like Chumley himself — the class-based antagonism towards those who do honest but unpalatable work is a tell — but that could be a coincidence. As you know, Lenore has a retinue of unattractive men who follow her slavishly — at least until she calls them to testify for her in court, at which point they seem to disappear — and it could be any of them with a friend in the DPOC. (There’s another sadder and more likely possibility, but I’ll tell you that privately.)
Spinning almost-complete failure as “great news” is one of the first skills one earns in the Lenore Scouts.
(Unfortunately, I can’t put the appropriate Futurama call-out in a comment.)
One opinion I’ve encountered is pleasingly tart:
“Only in the world of Lenore Albert is a court of appeal opinion affirming that one is still suspended by the State Bar and subject to an $18,000 sanction, after not practicing for two plus years and declaring bankruptcy, a great victory.”
I also found this strong and entertaining blog post from an attorney in San Diego (whence comes the Judge who authored the opinion):
https://calapp.blogspot.com/2020/06/in-re-albert-sheridan-9th-cir-june-10.html
Be careful when you wish to be famous!
I just ran into an old story of mine from 2015 that seems worth looking at today.
http://www.orangejuiceblog.com/2015/10/they-said-tempted-by-power-joe-biden-takes-a-reckless-legacy-wrecking-swipe-at-hillary/
Seriously, for many reasons, Joe Biden will do better than Hillary — and this is an example that should remind him how he should not want his supporters to be.