Estragon v. Godot, or, Still Waiting For The Big Decisions

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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69 Responses

  1. Jaybird says:

    Horne strikes me as being a strange step in the right direction of putting a leash on Wickard…

    As such, it strikes me as appearing to be a small case today but, in a few years, a positively *HUGE* one.

    Irritated by Thomas’s dissent.Report

    • Jaybird in reply to Jaybird says:

      Wait, Thomas concurred. It was Sotomayor that dissented.

      Less irritated with Thomas now, though still residually irritated.

      What the hell is wrong with Sotomayor?Report

      • Paul in reply to Jaybird says:

        Am I misreading Sotomayor? Her argument almost seems to suggest that the government could seize a small business for arbitrary reasons, and it wouldn’t be a taking if it continued to provide the former owner with a desultory share of whatever revenues the business might then have, because it wouldn’t completely eliminate the owner’s property interests. That notion eviscerates the very notion of just compensation.Report

        • Jaybird in reply to Paul says:

          Her argument is incoherent to me to the point where I find it difficult to believe that she’s seriously making it.

          This is an argument that should seriously be laughed out of the room.Report

  2. Autolukos says:

    I think the Thomas opinion in Horne is a concurrence, not a dissent.Report

  3. Saul Degraw says:

    1. This Drama major appreciates the title.

    2. Why do you think the Supremes keep most of the “major” decisions until end of term? Is it because these cases are the hardest to decide? Do they just want to avoid media scrutiny? Both? Something else?

    3. Kagan’s writing in Kimble v. Marvel is inspired:

    4. The photo of Thomas looks like it was distorted by a fun house mirror.Report

  4. Chris says:

    Los Angeles v. Patel: Municipal law requiring hoteliers to keep guest registries subject to random, suspicionless searches by police violates the Fourth Amendment. (This was even a question?)

    Cops is cops. Until someone really high up tells them no, they’re going to assume they have the right to do something.Report

  5. Michael Cain says:

    As noted on SCOTUSblog, how often do you see “The decision of the Ninth Circuit Court is affirmed”? How often do you see it twice on the same day?Report

    • Some bigger law geek than I will surely have the answer to that question on tap, and my guess is it’ll date back to the time Earl Warren was Chief Justice.Report

    • morat20 in reply to Michael Cain says:

      I was always felt the Ninth Circuit got a bad rap. It is, IIRC, huge. Like REALLY huge. It covers a really oversized swathe of people compared to the other Courts.

      As such, it’s going to get a lot more cases — which means it’s gonna have a lot more appeals to SCOTUS. And the thing about cases that get appealed to SCOTUS and taken up — they’re generally something tricky about them.

      I mean just to get a Circuit decision means there’s something weird or unusual with your case. For SCOTUS to pick up on it generally means SCOTUS has something it wants to say about it

      Anyways, I think given the number of people in their area, the number of cases they see, that statistically the Ninth should come up in front of SCOTUS a lot more than other circuit courts.

      I think one of the others — the Fifth, maybe? — has a similar problem, because it gets a lot of cases against the Federal government.Report

      • Kim in reply to morat20 says:

        Who cares about the number of people? Everyone incorporates in Delaware anyway…Report

      • Michael Cain in reply to morat20 says:

        The District of Columbia Circuit, unnumbered. Yeah, they get all of the stuff related to the regulatory agencies. Eg, the Michigan v. EPA case regarding the cost of mitigating coal-fired power plant mercury emissions that’s on Burt’s list came out of the DC Circuit.Report

  6. In Kimble, Alito found for an individual against a corporation. Has this ever happened before?Report

  7. Burt Likko says:

    Another little note: SCOTUSblog is running a very fun banner picture today, drawn by one of the official SCOTUS sketch artists. Richard Herschberger will particularly appreciate Justice Breyer’s portrait; but personally I think the best jokes are the Chief, The Notorious RBG, and Justice Thomas.Report

    • I can’t tell all of the players without a scorecard. I assume Roberts is the umpire, but who’s second from the right in the Ted Williams pose? And is there an editorial comment about reaching in whoever’s fourth from the right?Report

      • It goes in reverse order of seniority, outward from the Chief in the center, the same way they sit in chambers. So from left to right, you have:

        Sotomayor (wearing Yankees pinstripes)
        Breyer (wearing a cricket kit)
        Thomas (in Dallas Cowboys gear)
        Scalia (in a Brooklyn, not Los Angeles, Dodgers uniform)
        Roberts (as an umpire)
        Kennedy (holding with “Inspector Gadget” device to extend his mitt’s reach)
        Ginsburg (wearing the League Of Their Own uniform)
        Alito (in Phillies pinstripes)
        Kagan (in Red Sox pinstripes)Report

        • Scalia is in a Dodgers uniform, but the pose is pure Babe Ruth.

          Thomas is a lifelong Cowboys fan. #91 doesn’t seem to be anyone in particular.Report

          • Thomas was nominated to the Supreme Court in 1991, which is where I think the number comes from. It’s an artistic master stroke to have him in Cowboys gear while the rest of them are set up to play baseball (or something sort of like it).

            Scalia? He certainly has the swagger of a Babe Ruth. But the thing is, Scalia originally hails from Queens, so seems to me he ought to be wearing a Mets uniform.Report

            • Kolohe in reply to Burt Likko says:

              Burt Likko: Scalia? He certainly has the swagger of a Babe Ruth. But the thing is, Scalia originally hails from Queens, so seems to me he ought to be wearing a Mets uniform.

              Queens peoples were Dodger fans at the relevant portion of Scalia’s life. (he started law school around the same time as the last game of theirs at Ebbets field)Report

            • Damn, I knew that about Thomas. Or should have: I watched his confirmation hearings holding a newborn.Report

  8. Kazzy says:

    A raisin reserve? Seriously? That exists? I imagine a giant vault full of raisins that the heads of whatever-organization-oversees-the-thing (FDA? Ag?) swim in Scrooge McDuck style.Report

    • Michael Cain in reply to Kazzy says:

      The Raisin Administrative Committee, in Fresno.

      Based on my experience with baking my weekly or thereabouts loaf of cinnamon-raisin bread, raisins are too sticky for the swimming thing.Report

  9. Something I never knew until just now is that someone has made videos of many Court cases using the actual audio and John Oliver’s Supreme Court Justice dogs. Here, for instance, is Hobby Lobby vs. Sibelius.Report

  10. KatherineMW says:

    Arizona State Legislature v. Arizona Independent Redistricting Commission: is an extralegislative commission an appropriate body to draw Congressional districts?

    Wait, the Supreme Court has to rule on whether it’s appropriate to have an impartial body draw electoral boundaries, as opposed to the status quo of having the party in power draw them to benefit itself?

    …I’m really hoping they rule in favour of the redistricting commission. Everywhere in Canada has independent electoral boundary commissions, which is how we avoid the US’s issues with gerrymandering. It’s an ideal policy solution.Report

    • Alan Scott in reply to KatherineMW says:

      The wording of the constitution specifically says districts are to be drawn by the legislatures of the states.

      I’d be more persuaded by that argument if we hadn’t been interpreting an amendment that begins “Congress shall make no law” to apply to all actions by all branches of both state and federal governments for the past century or more.Report

    • As I’ve written here before, this is a case with potentially enormous consequences.

      As @alan-scott says, the Constitution says drawing districts is the responsibility of state legislatures. The precedents for this case define legislature loosely, to mean roughly “the normal legislative process as defined by the state.” Neither of the relevant cases, though, involved citizen initiatives as part of the process. And it’s not just Arizona. California has a pretty similar system. There are some other states with different variations. If the SCOTUS finds for the Arizona legislature, they have potentially decided that upwards of 20% of the US House districts are improperly drawn at present. That’s a hell of a decision.

      A hundred years ago, a wave of direct democracy swept across the West (and select states elsewhere). This is one of the very first times that the SCOTUS has been asked the question of whether there are limits to how direct democracy may be used to restrict state legislative bodies. The Court has been sitting on a case from Colorado for six months that asks the question in a more indirect fashion without deciding whether to grant cert. If the Court decides that there are substantial limits on what can be done by initiative, then there’s the whole “how much of what was done in the last hundred years gets tossed?” question.

      While the Constitution doesn’t say much about state government, it’s pretty clear what the authors had in mind — vote for your representatives, then sit down and shut up. Direct democracy has been allowed to run loose in part of the country for a long time, and now the Court is going to have to make decisions. Unless they’re willing to go to one extreme or the other, drawing the necessary lines is likely to be a complicated job.Report

  11. Michael Cain says:

    Since no one seems to have remarked on it to this point anywhere on the site, health insurance subsidies for purchases on the federal exchange stand, 6-3. Split is exactly what I predicted in comments on the post following the oral arguments — the four liberals, CJ Roberts, and Kennedy. The CJ wrote the opinion.Report

  12. North says:

    Well stick a fork in it the liberals won; that’s the end of any serious or material threats to the ACA at least until after the next election.

    I am curious, do you think Roberts was in the majority from the get go or do you think he realized that Kennedy was going to side with the ACA and jumped aboard to make the result look less partisan and defend the image of the court?Report

    • Jesse Ewiak in reply to North says:

      I think Roberts decision is a combination of factors –

      1. He realized jumping against the ACA would only further increase the spiral of respect for the Supreme Court. And also, he wants to be remembered well historically – ‘the Roberts Court allowed gay marriage nationally and legitimatized President Obama’s landmark health care bill’ sounds better in a 2050 history book than ‘the Roberts Court raised the politicization in the country, casting millions of people off health insurance rolls and delayed justice for minority groups for decades.’ He doesn’t want to be the Justice Taney for gay people.

      2. He’d probably gotten backchannel messages from various insurance lobbyists and GOP staff members that, “yes, our crazies want this, but we know this would fuck us politically.”

      3. Roberts is a business friendly conservative, not a ‘destroy the New Deal and sends us back to the good ole’ days of the 1890’s’ conservative. So, he can happily rule against voting rights because that doesn’t impact businesses bottom line, but f’ing over the insurance industry in half the country would be a bad thing.Report

      • Saul Degraw in reply to Jesse Ewiak says:


        Yeah. I think that Roberts and Kennedy care about their legacies more than Scalia and Thomas. Though Roberts has not ruled in favor of any plaintiff in gay rights’ cases as far as I know. He dissented in Windsor.Report

      • Dave in reply to Jesse Ewiak says:

        Losing or gaining credibility = whether or not person discussing it disagrees/agrees with decision.

        This is the “judicial activism” discussion by another name yet equally obnoxious.Report

        • Stillwater in reply to Dave says:

          I’d say that Roberts’ vote on the mandate was clearly judicial activism. He pulled the whole thing right outa … thin air!Report

          • Dave in reply to Stillwater says:


            Our beloved (and my Jersey brother) Mark Thompson called the mandate as a tax, and Justice Roberts reads this blog so he knew exactly how to go about avoiding the hell that could have been had either the mandate or the entire Affordable Care Act went down.Report

            • Stillwater in reply to Dave says:

              Heh. Yeah, that! The least he coulda done is give a shout to Mark for having made the argument he eventually made since the gummint didn’t actually make it. Obama should give a shout too, for that matter. But no… Thanks Obama!Report

        • Jesse Ewiak in reply to Dave says:

          Eh, there are conservative decisions I highly disagree with, but can at least see the evidence for. From the start of this whole process, aside from a general disbelief in the modern American welfare state (hi Clarence Thomas!), there was no reasonable way to knock down the subsidies based on largely, a drafting error, considering that even conservative Republican senator’s who were part of the process have stated they never though that people would lose subsidies if states didn’t set up exchanges.

          Burwell vs. King was about only three or four steps up from a ‘crazy prisoner tries to sue God’ level of silly lawsuits.Report

        • aaron david in reply to Dave says:

          “This is the “judicial activism” discussion by another name yet equally obnoxious.”

          And @dave nails it.Report

          • Stillwater in reply to aaron david says:

            Aaron (and Dave too):

            Do you guys think there is no such thing as judicial activism? That the concept is purely political?

            How do you explain Robert’s reasoning in the mandate case without attributing to him pretty much the exact definition of the term?

            Edit: or Mike Schilling’s example: the reasoning in the recent CRA voting rights case?Report

            • Dave in reply to Stillwater says:


              I think that there was a constitutional basis for ruling that the mandate was a tax under the Taxing Clause even though the argument failed to pass constitutional muster under the Commerce Clause. That’s different from what I understand as the general understanding of judicial activism where a decision is reached without any constitutional basis, at least so it goes.

              Plus, and I’m not sure how much I want to go into the weeds on this specific topic, judicial activism typically involves striking down a law that was democratically passed.Report

            • Dave in reply to Stillwater says:


              I know @mike-schilling has had more than a few strong words about that decision, but I must admit that I haven’t read it. My initial understanding is that what the Court got wrong (or ignored) is that they failed to recognize that the processes they voted to strike down were the very reason why they saw things the way they did. It’s like taking medicine away from a patient because the patient is better without recognizing the role the medicine plays in that.

              I can’t say more than that right now.Report

              • Mike Schilling in reply to Dave says:

                And they managed to “fail to recognize” that in the face of at least two states (Texas and North Carolina) saying publicly exactly what they would do once SCOTUS removed the legal barrier.

                I won’t bring up the fact that Roberts had been working against the VRA since before he was appointed to the bench, back when he was a GOP operative, because that would sound like I’m accusing him of judicial activism.Report

            • zic in reply to Stillwater says:

              @stillwater I don’t know about judicial activism one way or ‘tother. But I do agree with @dave that sore losers pretty much go there consistently, no matter which ‘side’ wins or loses.

              At the end of the day, Justices are human, and base their opinions on their lived experience as well as their judicial experience. I’ve read that judges with daughters, for instance, are more likely to rule in favor of women. In Roberts case, his sphere of influence includes business, and the economic instability to the insurance industry that might have resulted would certainly be something he’d have been concerned about (not to mention six million families at or near poverty line facing substantial insurance increases), but does having a concern for business or daughters make you a judicial activist? I don’t think so.

              I’d say this is an ‘anti-activist’ decision, however. Since nobody objected to or complained about the subsidies in federally-run exchanges until this came up, including all the Republican members of Congress who voted against the law, retroactively reassigning the meaning based on a word that has multiple definitions would, I think, have been activism. So Scalia’s dissent.

              And that’s sort of the more interesting question to me; is there more intent toward judicial activism in dissenting opinions? The Notorious Ruth Bader Ginsberg’s dissent in HL? That’s where, I think, it’s more likely to show; but that’s only a guess and not an informed opinion.Report

              • Stillwater in reply to zic says:


                My understanding the term “judicial activism” is a decision based on politics or preferences rather than existing law and procedures. For Roberts to side with gummint on grounds that were not only not argued but were specifically rejected seems to me to fit the bill. I mean, he basically constructed an entire argument outa whole cloth (one which the gummint shouldhave been making all along!), and said that according to that unargued argument the mandate is constitutional.

                And more, he rejected, explicitly, the government’s argument that the mandate was a constitutional penalty governed by the commerce clause.

                Doesn’t make any sense to me from a legal pov, that’s for sure.

                Edit: To your “sore losers” point: that’s one of the things I was specificall pushing back against. just because a bunchof people reflexively use the term as cover for their hurt feelings doesn’t mean the concept is useless or never appropriately used. Saying it is just amounts to a dig on “both sides” and all that.Report

              • zic in reply to Stillwater says:

                Yeah, I hear you. I think my only point is the ‘preference’ part; that sometimes it’s not so much ideological preference as lived experience, which is why I marshalled the behavior of judges with daughters in rulings involving women’s treatment (domestic abuse, workplace discrimination, etc.)

                I guess I think it’s important to cling to that lived experience as root of judicial activism, and it’s nuanced from ideological-driven judicial activism; seeing a daughter suffer domestic abuse or discrimination at work, a gay son unable to have his partner at his hospital bedside making decisions, ought to be the kind of lived experience that shapes ‘judicial activism’ in the name of wisdom.Report

          • Dave in reply to aaron david says:


            If the Supreme Court strikes down same sex marriage bans, what will be expect to hear from the opponents of the decision:

            a) judicial activism
            b) that the SCOTUS has lost all credibility
            c) nine superlegislators in black robes destroyed democracy
            d) Poor Dave now has to worry about threats to his traditional marriage from gay men in all 50 states (a running joke on my FB feed with one of our other contributors here lol)
            e) all of the aboveReport

      • I don’t know if I included it in my comments at the time, but my reasoning was Roberts wasn’t about to screw big insurance/hospital/pharma corporations over a drafting error, and Kennedy wasn’t about to screw several million people in 30-some states over the same error.Report

        • Stillwater in reply to Michael Cain says:

          It’s kinda fun to recall the way-back reasoning. Initially, when the case was first taken, I thought it’d go 7-2 for gummint, with Alito and Thomas being ole stick in mud the literalists. (Those guys are no fun.) I revised that on the view that if those were the prevailing numbers thru deliberations, Scalia would jump ship – opportunistically! – so’s he could write a scathing, curse-laden dissent outlining all the ways the fedrul gummint is impinging on states rights and individual liberty and Christians and Freedom! I figured Roberts wouldn’t vote against a bill that he singlehandedly saved only a short time before. The others just fell naturally into place.Report

    • DensityDuck in reply to North says:

      “do you think Roberts was in the majority from the get go ”

      He’s been pretty friendly to the Executive Branch, and King v. Burweil represents a significant increase in the Executive Branch’s power, so, yeah, he was probably on that side from the start.Report

    • KatherineMW in reply to North says:

      This case just seems odd to me. The news articles say it hinged primarily on one phrase: health care exchanges are “established by the state”.

      “The state” has been a term used to refer to government for centuries; is there some particular reason (aside from, “I want to get rid of Obamacare and this is the best argument I could find”) for anyone to conclude it referred only to the 50 states?

      This is why it’s nice that in Canada we have provinces; it avoids that kind of lexical confusion.

      I’m glad the Supreme Court upheld the Affordable Care Act.Report

      • DensityDuck in reply to KatherineMW says:

        ” The news articles say it hinged primarily on one phrase: health care exchanges are “established by the state”.”

        But is it referring to “the state” as an abstract description of government? Because elsewhere in the ACA it refers to “the state” as an entity distinct from the Federal Government. And it’s pretty established practice throughout all of American history that when official government documents mention “state”, they are not referring to the Federal Government.Report

    • nevermoor in reply to North says:

      do you think Roberts was in the majority from the get go

      Yes. He’s conservative but not purely or reflexively so. One must be both those things (and willfully blind) to come out the other way. Turns out the Supreme Court’s crazification factor is as close to 27% as allowed in a nine-person group.Report

    • Michael Cain in reply to North says:

      I have gone so far as to speculate that the fix was in from the beginning, and that the case was pulled up from the Appeals Court prematurely by Roberts and the liberal wing (not the conservatives, as so many people seem to think). I haven’t read the opinion yet, but understand that the Chevron argument was not used — the Court was nailing down that this was the law and it would be up to Congress to pass something different if the conservatives want to change it, rather than a different administration deciding to read the ambiguity differently.Report