Big Monday, 2015


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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66 Responses

  1. Avatar Michael Drew says:

    I detect the dynamics of the playground here with these intemperate dissents.

    There ar a group of like-mided Big Boys. Not all are bullies, but some are, or at last one is. Scalia is the lead bully – cruel and calculating. Roberts is the Golden Boy with a good conscience. Alito is The Loner who keeps to the side thinking his sulky thoughts (“They’re gonna call my dad a bigot!”). Thomas is The Wild Card, you can never tell when he’s gonna let fly and he clearly has a cauldron of rage simmering beneath, but mostly he doesn’t, and mostly he seems quite engaged in trying to contain it. (Read his bio: a cauldron of rage simmering beneath is not an unfair thing to ascribe to Clarence Thomas’ makeup.

    The question is: what way will the group go? Toward comity or aggression? Roberts wants to lead toward the former. Alito doesn’t care. Thomas is doing his best just to manage his own contribution. But Scalia is clearly relentless pulling in his direction. Can Roberts stand up to Scalia, not just once or a few times, but consistently, over a career? Or will Scalia finally wear him down and pull the group his direction?

    The decisions of last week were encouraging from Roberts’ perspective (or our perspective of Roberts). Maybe the Arizona dissent indicates a bit of faltering from his appointed role as Conscienc of The Right, but I wouldn’t get too concerned about it yet. Generally I have confidence in the Chief’s ability to maintain rhetorical sobriety over time (though I’ve always thought he relied a little to strongly on metaphors ever since “Balls and strikes myself).

    And, hey, this is only a metaphor, and to be sure everyone is tempted into rhetorical indulgences from time to time, whether combative or poetic. We have to allow for his human lapses just like everyone’s.

    Incidentally, what’s with “The majority begins with policy”? He began King with policy. I suppose that was only about policy (statute), but… still. It’s about both, so who cares where they start? The policy is the thing under consideration; everyone up there knows what the Constitution says;).Report

    • Avatar nevermoor in reply to Michael Drew says:

      I continue to think that Roberts is both someone who holds political beliefs I dislike and a reasonable jurist. My read on him is a bit different in that he is trying to balance two things: (1) the way the “Roberts Court” is treated by history; and (2) a desire not to completely lose his conservative cred. That’s why I think he’s allowing himself to be extra fiery today.Report

      • Avatar Saul Degraw in reply to nevermoor says:

        What is interesting though is Kennedy became a swing vote on the Arizona case. I did not expect that considering his ruling on Citizens United.Report

        • I, too, was surprised by this. As I noted on one of Burt’s other postings, though, Kennedy is a California boy all the way through Stanford, and TTBOMK the only one of the nine who did any legal work in an initiative state. I would not be surprised if he was the source of this bit from the tail end of the majority’s syllabus:

          Banning lawmaking by initiative to direct a State’s method of apportioning congressional districts would not just stymie attempts to curb gerrymandering. It would also cast doubt on numerous other time, place, and manner regulations governing federal elections that States have adopted by the initiative method. As well, it could endanger election provisions in state constitutions adopted by conventions and ratified by voters at the ballot box, without involvement or approval by “the Legislature.”

          I’ve noted other times that the initiative as a major feature of state governance has been running loose for a hundred years, in states that currently account for at least a quarter of the entire US population. Making a decision that there are limits to what the initiative can do — beyond the same kind of limits that apply to what the selected representative body can do, or the people at a constitutional convention — raises the entire question of how much other stuff has to be tossed. Kennedy would certainly be aware of that problem.Report

      • Avatar Michael Drew in reply to nevermoor says:

        Right. He wants to lead them, without being kicked out. Just like all politicians.Report

  2. Avatar nevermoor says:

    A few reactions to today’s rulings:

    1. I expect people to continue to have a partisan reaction to the outcomes (I certainly do, and each of these are significantly politicized issues).

    2. This is further illustration of the uselessness of “judicial activism” complaints. It was how many days ago that conservatives were bemoaning the fact that the constitution doesn’t explicitly allow for gay marriage? Today we have a court saying that “appropriate and necessary” means “must consider costs before regulating, even though that specific requirement exists elsewhere but not here and a cost-benefit analysis is insufficient.” Whether we think that’s right or wrong, I hope we can admit that’s judicial activism in the other direction.

    3. In the interest of fairness, I’ll point out that Sotomayor was plenty fiery in her Glossip dissent too.

    4. Post Glossip, I wonder how the folks fighting to make usable drugs unavailable respond. If any drugs are ok, it seems cruel and arbitrary to prevent states from getting the least-bad ones.

    5. I really hope citizens commissions are the wave of the future, but before we get too mad at Roberts we should freely concede that his is absolutely not a crazy position (unlike, say, the three clowns in King). I personally think 2 U.S.C. § 2a is a pretty good answer to the “legislature thereof” argument since the Constitution allows that “the Congress may at any time by law make or alter such regulations.” That said, it’s a close question and reasonable minds can easily differ.Report

    • Avatar Saul Degraw in reply to nevermoor says:

      I think the issue with Glossip is that most of the “least-bad” drugs are produced abroad and produced in countries where there is much unified (at least unified elite) responses against Capital Punishment. It would be a very strange case to tell foreign corporations that they have to give states the least bad drugs.Report

  3. Avatar Jaybird says:

    This application of the Death Penalty remains Constitutional by a 5-4 decision.

    Is this one of those “THIS IS AN OUTRAGE!!!” 5-4 decisions or a “GET IN LINE, HATERS!!!” 5-4 decision?Report

    • Avatar Chris in reply to Jaybird says:

      It’s a *Sigh* decision.Report

    • Avatar KatherineMW in reply to Jaybird says:

      What is it for you? It seems like the government being allowed to kill people is about the most expansive form of government power that can exist.

      I’m definitely no lawyer, but rationale of the decision seems odd to me.

      In other words, he must show, before the trial on the merits, that it is more likely than not that the use of midazolam would do something that constitutes cruel and unusual punishment.

      So….that means something isn’t “cruel and unusual punishment” if there’s less than a 50-50 chance that it would be cruel and unusual? So if the police hooked someone in jail up to a machine that had a 40% chance of giving them a nasty electric shock and a 60% chance of doing nothing, and pressed the button occasionally, that wouldn’t be “cruel and unusual”?Report

      • Avatar Jaybird in reply to KatherineMW says:

        My opposition to the Death Penalty doesn’t rest on my support of (or opposition to) its Constitutionality.

        It strikes me as being rather obviously Constitutional.

        As for this particular method? It strikes me as a way to make the people in the viewing gallery feel better about the death penalty. Makes it nice and sterile. If we really cared about the people we were executing, we’d use opiates.Report

        • Avatar Saul Degraw in reply to Jaybird says:

          I think most honest liberals would need to concede to the Constitutionality of the Death Penalty because it is mentioned in the Constitution.

          The question is what forms of the death penalty violate the 8th Amendment and which do not. Even Scalia concedes that certain popular punishments during the late 18th century like flogging and hanging, violate the 8th Amendment.Report

          • Avatar Jaybird in reply to Saul Degraw says:

            Strange that hanging would violate the 8th.

            Though I certainly understand how it would make the people in the viewing gallery uncomfortable.Report

            • Avatar Jaybird in reply to Jaybird says:

              To be honest, my main thought on the Death Penalty is that we can save a lot more innocent lives by cutting down on the hundreds of executions that happen without a trial than we are likely to by getting rid of the Official Death Penalty that happens following trials and appeals.Report

            • Avatar Michael Cain in reply to Jaybird says:

              Strange that hanging would violate the 8th.

              As I understand the historical record, the hangman is quite likely to make a mistake such that the drop doesn’t break the neck of the person being executed, leaving them conscious while they slowly suffocate. The whole three-drug protocol is premised on starting with a drug that induces deep unconsciousness before doing painful things.Report

          • Avatar Burt Likko in reply to Saul Degraw says:

            Even Scalia concedes that certain popular punishments during the late 18th century like flogging and hanging, violate the 8th Amendment.

            Thereby staining his purity on “original popular meaning” as the proper interpretive lens with which to understand Constitutional verbiage. All hail the doctrine of contemporary textual analysis!Report

            • @burtlikko

              So are you saying that he’s saying that people at the time who were glad flogging was available to punish people reacted to seeing the 8th Amendment ratified by saying, “Drat, now we can’t flog people anymore?”Report

              • No, that they were judicial activists. Flogging, and the stockade, and tarring and feathering, were all within the general understanding of criminal punishments to the pre-colonial Americans, so perhaps eliminating them from the lexicon of criminal punishments today is nothing more than unelected judges tearing down the bulwarks of democracy and replacing them with their own personal policy preferences.

                Alsotoo, flogging, and the stockade, and tarring and feathering, did not deprive the punished person of dignity because since they were administered at the hands of the government, they were incapable of doing any such thing. But that’s getting into Thomas’ dissent, which Scalia only joined.Report

              • Avatar zic in reply to Burt Likko says:


                I think that you might, if you decide to give up on joining the bench, have a bright future writing legal satire for John Oliver.Report

              • I swear I thought I read “maintaining his purity.” So I was confused in a whole different direction.Report

          • Avatar Chris in reply to Saul Degraw says:

            I can’t remember, was the 8th amendment written before or after the body of the Constitution? That’s not a slam dunk, of course, but it makes “it is mentioned in the Constitution” much less of one.Report

            • Avatar Glyph in reply to Chris says:

              I don’t know if you want to go down the road of “Amendments aren’t the REAL real Constitution” do you? Constitutional Amendments are still “the Constitution”.Report

            • Avatar Burt Likko in reply to Chris says:

              You’ve only got between two to four years’ separation. Original constitution was drafted in 1787, finally adopted in 1789; the first set of amendments mostly known as the Bill of Rights drafted and mostly ratified in 1791 (although one of them took until 1992, but that one’s not particularly relevant to this discussion).Report

        • Avatar gingergene in reply to Jaybird says:

          Liberal me has this view: clearly the death penalty is constitutional in theory, but we have never been able to make it so in practice. There is the “cruel” 8th amendment issue rejected today by the court, but there is also the “unusual” 8th amendment issue in Furman that IMO, has never been resolved, despite Gregg.

          The best hope for eliminating capital punishment is probably for the true dis-believers to unite with pragmatists. Unfortunately, this means we’ll be too busy talking about deterrence and costs to have the discussion we really need.

          I would heartily endorse an amendment to eliminate capital punishment, but I think before that happens, our country would have to sit down like adults and ask ourselves what the purpose of our criminal justice system is, and specifically what “justice” can realistically look like. We’re not good at having these conversations; we tend to avoid them until we are in a crisis, when cooler heads tend not to prevail (for ex: Security vs. Civil Liberties, our national “discussion” on race, etc.)Report

          • Avatar Murali in reply to gingergene says:


            The purpose of punishment is to inflict suffering on criminals for (and therefore in proportion to) the suffering they have culpably caused by their criminal acts. This is a good starting point. Any other justification stops being about punishment per se.Report

            • Avatar Burt Likko in reply to Murali says:

              Respectfully, @murali , this is tautological: to endure punishment is inherently to suffer, so the claim made here is that the purpose of punishment is to punish.

              What good result do we expect to happen as a consequence of the infliction of suffering upon a criminal? Alternatively but not exclusively so, is the suffering of a criminal an inherent good such that no further analysis of consequence is necessary?

              I identify four possibilities without necessarily endorsing them:

              1. Punishment of criminals is an inherent good.
              2. Punishment of criminals makes victims and the larger society of innocents feel better about having suffered a crime (aka retribution or vengeance).
              3. Punishment of criminals prevents additional crime in the future (aka deterrence, whether specific to the criminal or generally to other potential criminals).
              4. Punishment of criminals makes criminals better people (aka reformation or rehabilitation).

              Perhaps there are others. I have philosophical difficulty with the notion that suffering, even the suffering of the guilty, is an inherent good — particularly when placed in the same arena as the appealing notion that happiness, particularly the happiness of innocents, is an inherent good.Report

              • Avatar Murali in reply to Burt Likko says:


                Respectfully, @Murali , this is tautological: to endure punishment is inherently to suffer, so the claim made here is that the purpose of punishment is to punish.

                I know its tautological, that’s what makes it true and the people who question its truth seem deranged.

                If your aim is to rehabilitate people, punishing them may (or probably not
                ) not be the best way to do it. If your aim is to deter would be criminals, perhaps inflicting suffering on some scapegoat would do as well. If your intention is to satisfy the mob’s bloodlust, then the scapegoat would do just as well. The only answer is that punishing the guilty (provided the law is just) and only the guilty can only be justified by the principle that the guilty deserve it. i.e. it is inherently right to punish those who harm innocent others. On this account, desert is the currency of reciprocity. When the basic social institutions (property, government etc) exemplify reciprocity, the make it such the case that in the course of events, people who do good things for others will be rewarded in proportion to the good they do others and those who do bad, will be similarly punished.

                is the suffering of a criminal an inherent good such that no further analysis of consequence is necessary?

                Analysis of consequence will only take place at one or two steps removed. We might say that ultimately, reciprocity is good because it is necessary for the functioning of any reasonably functional society. By failing to punish the guilty, people stop having confidence that their social institutions embody reciprocity. It is only when people are rightfully confident that society embraces reciprocity that they will be willing to engage in social cooperationReport

              • Avatar gingergene in reply to Murali says:

                Ah, but @murali , look what you did: I asked what the purpose of the “criminal justice” system was, and you answered the question of what the purpose of “punishment” was. Then, as icing on the cake, you implied that @burt-likko and I were “deranged” because we didn’t see things the same way you did.

                You started in the middle, answered a question no one asked, and then insulted people who might disagree. Exactly the sort of difficulty in having the conversation that I was talking about.

                I reject the assertion that the primary purpose of the criminal justice system should be punishment. *I* want a justice system that rehabilitates as its primary purpose, with a secondary purpose of deterrence (I could be persuaded to a system with those two priorities reversed, I think). I value punishment only as far as it achieves those goals, and I want nothing to do with a system whose primary purpose is vengeance.

                Here in the US, I may very well be in the minority, but I want to have that conversation, I want us to revisit it regularly, and I want a chance to persuade people to my point of view.Report

              • Avatar Burt Likko in reply to gingergene says:

                Well, I do understand @murali ‘s fleshed-out point that punishment, for its own sake, is a marker of a society’s (putative) fundamental value of reciprocity and desert. It sufficiently satisfies my (implied) demand for an explanation of why punishment of crimes might be considered an inherent good. To some extent that dovetails with the concept of deterrence, but I distinguish between desert and vengeance.

                With that said, I don’t think it’s “deranged” to point out that a tautology is not an intellectually useful ploy. I’ve far too much respect for @murali to think he’d rest on a tautology.Report

              • Avatar gingergene in reply to Burt Likko says:

                But again, punishment serves other masters: in this case fairness. Punishment for punishment’s sake is cruelty, it’s sadism. We don’t punish those who are unable to comprehend either the crime or the punishment, even though the effect of their crimes are no less real; the person must understand the punishment to achieve our goal of justice, whether that goal is fairness, rehabilitation or deterrence.

                If, as @murali suggests, the goal of the criminal justice system is only “punishment”, to inflict suffering as retribution for suffering caused to others, then there is no need for an 8th amendment: why should punishment be proportionate? why shouldn’t it be humiliating? It’s because punishment is a tool to achieve other goals that we need to establish limits.

                IOW, Murali’s tautology isn’t applicable, because I’m not asking what “punishment” is, I am asking what Justice is.Report

              • Avatar Murali in reply to gingergene says:


                You’re missing the point of the tautology. Punishment counts as punishment only to the extent that it is proportional to and does not exceed the harm, culpably done by the criminal. When it so exceeds that, it becomes a fresh aggression and ceases genuinely to be any sort of punishment at all. Thus excessive punishment is an oxymoron.Report

              • Avatar Murali in reply to gingergene says:

                I forgot to add. If you have read some of my other stuff, I don’t think the 8th amendment makes much sense.

                That is to say that while I agree that punishments ought not to be excessively cruel, they are nevertheless cruel to some extent. And unusuality seems irrelevant.Report

              • Avatar Murali in reply to Burt Likko says:

                @burt-likko @gingergene

                Two points:

                1. I’m an analytic philosopher or at least trying to be one. Reducing everything to a series of tautological claims is what we do. *grin*

                2. Apologies on the “deranged” thing. I was aiming for gently poking fun. Sorry if it came out harsher than I intended.Report

              • Avatar Murali in reply to gingergene says:


                Ok, now my face is red. For some reason I thought you explicitly asked what criminal punishment is for. My mistake.Report

  4. Avatar Kim says:

    So, um, what’s the actual result of the mercury regs suit?
    Is it thrown back at the executive, who we have to wait further for?

    • Avatar morat20 in reply to Kim says:

      They get to start over, effectively. On the bright side, they already have all that information so the process might be swifter.Report

    • Avatar Burt Likko in reply to Kim says:

      As @morat20 said, the existing regs are stricken. New regs to be drafted with due consideration given to cost by the regulatory agency.Report

      • Avatar morat20 in reply to Burt Likko says:

        Betcha a donut that the EPA comes back with the same regs after doing their cost/benefit analysis. Cost is not the sole criteria for any EPA reg, as I understand it.Report

      • Avatar nevermoor in reply to Burt Likko says:

        Also, apparently the old regs are near-completely implemented (with none of the disastrous hand-wringing consequences industry swore would happen)Report

        • Avatar morat20 in reply to nevermoor says:


          Gets kind of old. Yes, stuff changes and you have to adapt. Put on your big boy pants and handle it. You’re a business, for God’s sake. If you can’t handle ‘change’ how are you still in business? The whole ‘unfettered free market’ you yearn for is nothing BUT change.Report

        • Avatar Kim in reply to nevermoor says:

          And the air’s cleaner already!
          (seriously, we did lose tons of coal plants to this one. Hallelujah! they’ve been grandfathered through 40 years of regulation! The EPA can sit back and know they’ve saved hundreds of thousands of lives from this one regulation alone).Report

      • Avatar zic in reply to Burt Likko says:

        Due consideration.

        But they still have to consider stuff like this, right?

        That’s my concern; it’s the local result of mercury. Our economy is based on natural-resource tourism; people come here to fish our pristine wilderness. Since the emissions despoiling those waters with mercury are up air-stream, this is of great concern to me.Report

        • Avatar morat20 in reply to zic says:

          IIRC, that’s a second-order cost (which the EPA estimates at pushing 100 billion) and not a first-order cost (which the coal industry claims is a few million, tops).

          As I understand it, the EPA considers second and third order effects like that. But they get a lot of push back, because the less direct and simple the connection, the more people can argue the outcome.Report

  5. Avatar Saul Degraw says:

    1. I agree with nevermoor that most partisan decisions are going to be viewed through a partisan lens.

    2. You are probably right on the makeup of the Supreme Court remaining the same until the next administration.

    3. As I said before, The U.S. has a problem with never having a monarchist party in that all parties (even when being anti-democratic) need to use the language of liberty and what not. I know there is a Glenn Beck-Tea Party meme that decries the 17th Amendment as being one of the worst things ever. Presumably because it moved the Senate to the left and they did not get their traditional role of being a quasi-House of Lords that blocked progressive agendas. The most Gilded Age of Gilded Age Republicans were in the Senate. Senator Aldrich of Rhode Island was basically a Senator for the Trusts during the late-19th Century. I must say I admit that the swipe against the 17th Amendment is surprising coming from the Chief Justice.Report

    • Avatar Burt Likko in reply to Saul Degraw says:

      I don’t interpret him swiping the Seventeenth Amendment. He’s swiping the majority for, as he sees it, translating a word into something it is not: the “Legislature” is not the “electorate.”Report

  6. Avatar Mo says:

    This time, he opens up by calling the voters of Arizona “chumps” for adopting the Seventeenth Amendment — because they could have transferred the mechanism selection of U.S. Senators out of the Legislature and directly to the voters through the manner Constitutional interpretation used by the majority in this case rather than through efforts to amend the Constitution itself.

    Didn’t a bunch of states do exactly that? All the 17th did was make every state have to do it.Report

  7. Avatar Alan Scott says:

    The Glossip v. Gross ruling is pretty… gross.

    The majority, along with Breyer, seem to pass over the facts of the case entirely so that they can give a thumbs up or thumbs down to the death penalty as a whole–and in doing so just keep on giving states a pass for conducting badly vetted execution procedures.

    Man, we have plenty of execution procedures we know won’t subject the victim to ongoing pain. The choice to use one that might be excruciatingly painful is apparently aesthetic–guillotines and firing squads have bad optics. Sotomayor is right to say that Oklahoma should have the burden of justification. Shame on Alito and the majority for skipping over the facts of the case in their rush to uphold capital punishment, and shame on Breyer for skipping over the facts of the case in his rush to overturn capital punishment.Report

    • Avatar gingergene in reply to Alan Scott says:

      I read (somewhere on the Internet, of course) that the original idea was to follow veterinarian protocol- single overdose of barbiturates, but that it was rejected in favor of the three-drug cocktail to avoid the comparison of people to animals. Ironically, our concern over dehumanizing the executed has resulted in excruciating deaths for people vs. peacefully slipping away for our pets. (I also note with sadness that this is feature, not a bug for some people.)Report

    • Avatar Saul Degraw in reply to Alan Scott says:


      Breyer was in the dissent and came out with the idea that the death penalty was simply cruel and unusual:

      • Avatar Alan Scott in reply to Saul Degraw says:

        @saul-degraw ,
        Yeah. And I happen to think he has the right of it.

        But that isn’t was this case was about. Until at least one justice dies or retires, the issue of whether or not the death penalty is constitutional is quite settled–and if the only reason SCOTUS is taking these cases is to re-hash that argument again and again, they may as well not take them at all.

        Whether the midolazam cocktail is an appropriate method of execution was the question before the court. And neither the majority opinion nor Breyer’s dissent actually focused much attention on that question. Only Sotomayor’s dissent did that, and Breyer elected not to join it.Report

  8. Avatar Chris says:

    Proposed new constitutional amendment:

    Everyone who is in favor of the death penalty has to stand in a lineup for identifying suspects in a capital murder case whenever possible.Report

  9. Avatar zic says:

    @burt-likko did you see Dhalia Lithwick’s piece on Scalia’s odd behavior?

    But in addition to the twin dissents, Scalia announced—after the reading of the dissents—that he was concurring in the majority opinion but had some things to say about the dissents. Since no written summary of his statement was provided, you will need to take my word for it that what he read deviated from his written concurrence in some really odd ways. And while I don’t want to spend too much more time on Scalia acting oddly, this was very odd. He opened his statement—which seemed not to have been written down, and didn’t really track his written opinion—with: “Last Friday five justices of this court took the issue” of same-sex marriage away from the voters based on their “policy preferences” and then noted that today two justices sought to do that again, with the call to abolish the death penalty. In case you were wondering, he isn’t over Obergefell.

    Scalia went on to note that the death penalty is expressly contemplated by the words of the Constitution, and continued with the accusation that maybe it’s a good thing that “two justices are willing to kill the death penalty outright rather than just pecking it to death.”

    Weirder? He concluded with the oral statement that “not often in the law is it the case that so few have changed so much.” The latter may not be as pointed an indictment as the zinger at the end of his written concurrence, which accuses Breyer (but not his partner in crime, Ginsburg) of rejecting, well, “the Enlightenment.” But it’s a deliberate echo of Breyer’s lament in reading his dissent aloud in the 2007 Seattle schools case, that, “It is not often in the law that so few have so quickly changed so much.” This is really a doubly strange accusation since of course the two dissenters—unlike the majority in the schools case—have in fact changed nothing at all, since they are the only two willing to do away with the death penalty. It may simply be a frustrated reference to five justices changing so much doctrine in a few short days. But strange to go after Breyer and Ginsburg on a losing side of a lethal injection drug case for this. All that changed here, really, is their minds on the constitutionality of capital punishment


    • Avatar Burt Likko in reply to zic says:

      I think that Justice Scalia should ask his doctor about atenolol.Report

    • Avatar Michael Drew in reply to zic says:

      The sniping *back* at the oral dissent presentations is, to my mind, since it’s essentially never done, just ridiculously juvenile.

      For that forum, that is. I mean, sitting around the conference room or chopping it up in the combox – great. But this is the Supreme Court. Not in the building; not in chambers. *In the court.*

      Come on.Report

  10. Avatar Kolohe says:

    Oklahoma needs to change their death penalty proctool to Hellfire Missile from Predator Drone; that way, they’re won’t be any strenuous objections anymore from liberals.Report

    • Avatar Jaybird in reply to Kolohe says:

      “So what should I think about this? If it had been my call, I wouldn’t have gone into Libya. But the reason I voted for Obama in 2008 is because I trust his judgment. And not in any merely abstract way, either: I mean that if he and I were in a room and disagreed about some issue on which I had any doubt at all, I’d literally trust his judgment over my own. I think he’s smarter than me, better informed, better able to understand the consequences of his actions, and more farsighted. I voted for him because I trust his judgment, and I still do.”
      –Kevin Drum

      “Honestly, I think we should just trust our president in every decision that he makes and we should just support that, you know, and, um, be faithful in what happens.”
      –Britney SpearsReport

  11. Avatar crash says:

    Hi Burt: Re the EPA case, a couple questions for you (or anyone else):

    My understanding is that the EPA rule-making process (for purposes of this case) goes something like this:

    Step 1. The EPA determines whether regulation is “appropriate and necessary.” Step 2. If it is appropriate and necessary, the EPA then proposes some regulations that limit the emissions. These proposed rules would go through the normal process, with public comment etc. In reality Step 2 would be a bunch of steps.

    Majority says EPA must consider costs not just at Step 2, but also at Step 1–this is basically the holding?

    It appears the EPA did do a cost/benefit, but it’s not clear to me when they did it. Did they do the cost/benefit after they had already decided Step 1? This seems to be the case but I am not sure. Scalia says the “EPA concedes that the regulatory impact analysis ‘played no role’ in its appropriate and necessary finding.” [Slip opinion p. 4]. I guess it doesn’t matter when the analysis was done, if the EPA concedes it played no role in its Step 1 decision?

    Was this because the EPA made an oversight (it had already done the impact analysis when it made the Step 1 decision, but it didn’t bother to cite it)? Or because when it made the decision in Step 1, it hadn’t completed the impact analysis yet, and therefore couldn’t rely on it?

    OK, so it’s remanded and the Circuit Court asks the EPA to consider the costs in Step 1. Does the EPA just basically re-submit the exact same materials, with the phrase “in making our Step 1 determination, we relied on this cost/benefit analysis” added to the cover letter? I’m assuming there’s more to it than that?


    • Avatar morat20 in reply to crash says:

      The EPA argued that it didn’t need to consider costs until step 2, wherein it had considered costs. It was sued because it didn’t consider costs in step 1. Now it’s got to go through the process again — officially, including public comment — and consider the costs in Step 1, even though it’s not going to change it’s mind.

      (The industry claims it’s a 4 billion cost to say a few million. The EPA claims that secondary savings are in the 80 to 90 billion range. The only numbers quoted by SCOTUS were the industry ones, which should be taken with a grain of salt for obvious reasons.).

      So basically the EPA will redo their process from start to finish, but consider cost in the beginning and not later. And the end result? The EPA rules are unlikely to change. Mercury emission isn’t really an edge thing.Report

  12. Avatar Doctor Jay says:

    This is a bit off-topic, but I read a piece over the weekend that framed CJ Roberts’ dissent in Obergefell as a warning to a conservative movement intended to revive Lochner as good law. The Chief’s dissent could be read as “over my dead body”. And it’s true, I’ve read a few hand-wringy pieces from conservative media saying, “Hey, what’s wrong with Lochner?”

    It’s an interesting angle, and it seems plausible to me. Sadly, I was unable to find the piece this morning.Report

    • Avatar zic in reply to Doctor Jay says:

      Was it this Think Progress piece by Ian Milhiser, Chief Justice Roberts’ Marriage Equality Dissent Has A Hidden Message For Conservatives?

      It was interesting; and leaves me wishing @burt-likko would do a post on Lochner, my grasp on it is still vague; the jurisprudence implications and consequences could bear some light here.

      But with that lack of nuance admitted, I though this fascinating:

      The Chief Justice of the United States, in other words, sent a clear message to the increasingly vocal forces that wish to use the Supreme Court to enact a sweeping economic agenda — not on my watch. His Obergefell dissent explicitly disavows the new Lochnerian evangelism that captured much of the Federalist Society. And his King opinion shows them that further efforts to politicize the judiciary may lead to punishment — in the same way that King punished conservatives by rendering Obamacare immune to many future legal challenges.


      • Avatar Doctor Jay in reply to zic says:

        Yes, that’s the piece. And sure enough, I’ve found several pieces in places like Forbes and WSJ saying, “Hey, Lochner is great!” Even in the WaPost, which is a bit sad.

        And yes, I too would like an essay on Lochner.Report