3600 words of profane exegesis below the cut.
Gonzalez v Trevino, retaliatory arrest
The opinion was issued "per curiam", meaning for the whole court, rather than being attributed to a single justice. That is historically meaning that the result is uncontroversial and clear and the court wants to speak with one voice.
Ha, HA HA ha ha
Not since Bush v. Gore it doesn't.
Anyway, Gonzalez was involved in city politics and got afoul of the city manager. She got a recall petition going. It got heated. At the end of one city council meeting, she (accidentally, probably) grabbed the petition as part of getting her shit together to leave. She was arrested, some time later, on the grounds of having intentionally removed a government record. The details are extremely shenanigans-y, but OK, whatever. The charge was dropped. She sued for retaliatory arrest.
Under precedent, you can't do that if there was probable cause for the arrest, and there probably was probable cause. But there's a "Nieves" case that provides an escape clause -- if you can show that if cops have probable cause but don't arrest most people in your circumstances, you can sue for retaliatory arrest even in the face of probable cause. Gonzalez showed that everybody arrested for her crime was arrested for wildly different stuff (mostly bogus ID cards). The Fifth Circuit said, no, you have to show that people who did exactly what you did weren't arrested.
Per curiam, five pages, the Court holds that that is too narrow, that Gonzalez's evidence is appropriate. Doesn't actually decide the case, but y'know, Rule of Continued Employment of Appellate Lawyers.
The real news is the goddamn extras. This is per curiam, so everyone has to show their asses.
Alito concurs, 16 pages because like he's got anything better to do. Gonzalez had a wacko second theory which I won't get into, and he spends some time whacking it on the head, but mostly he just wants to say Nieves is narrow and this isn't changing that.
Kavanaugh concurs, 2 pages, and he's dumb. He says this isn't a Nieves case, this is a mens rea case and Gonzalez conceded (unwisely) mens rea, and so the case should have been DIGged, but it wasn't and the per curiam opinion doesn't do any harm so fine. This is the fucking epitome of mediocre white man talking. I will 100% give you, the mens rea argument is half interesting, but the fact that no one else in the case is talking about it should give you a clue that it's not appropriate to the case at the bar.
Jackson concurs with Sotomayor, 2 pages, with a clapback at Alito and a suggestion that the acceptable evidence for a Nieves claim are even wider.
Thomas dissenting, 4 pages, he thinks the Nieves exception is moose poots and should be dropped, with his usual citation to imagined legal history where it was clear that any probable cause always defeats retaliatory arrest. SO UNIQUE YOU GUYS.
Moore v. US, taxation
Rich people hate taxation, and there are think tanks dedicated to making bullshit cases up in order to challenge laws that right wing culture warriors would like to get rid of. In this case, the Alliance Defending Freedom (who have several bullshit cases in their past and present, like both the mifepristone and EMTALA cases as well as the gay wedding website case). They have a history of making up shit; in this case, they lie to the court about how much the Moores invested, and their level of control and involvement in the company.
To a fair degree, it doesn't matter that this case is about a Trump-era tax on unrealized overseas profits; what this case is really about is an attempt to get it on record that wealth taxes as proposed by progressives like Warren and Sanders are unconstitutional. The constitution law on taxes has a long history and some fairly crucial terms of art that are not interesting enough to make up inventive profanity for, so I will merely say that the dispute is, more or less, whether it can be a "tax on incomes, from whatever source derived" if the income is imputed to you by tax accounting rather than you actually getting a check.
If you are familiar with business accounting, you know that you can book income as a credit if you've merely taken steps to secure the income, like sending an invoice. I don't understand this, but there are many, many things I do not understand about business accounting. But you can draw a direct line from that sort of thing to taxing income that is merely imputed, not actually in your possession.
The claim by the phony-baloney lawyers in the phony-baloney case is that the Moore's share of the profits of a foreign company aren't income because they weren't disbursed. Congress's law clearly says they are. Is Congress's law constitutional?
The answer is yes. Congress has been doing this sort of thing for a gazillion years (e.g. taxing shareholders and partners on business profits not disbursed), so there you go.
Kavanaugh for five (Roberts and the libs), Jackson concurring; Barrett for Alito concurring; Thomas for Gorsuch dissenting.
Kavanaugh 24 pages on the history of doing this sort of thing, but also plenty of caveats that they're not passing judgment on the wealth tax, whether income has to be realized by someone somewhere in order to be imputed to someone (e.g. pre-taxing capital gains before you actually sell, i.e. a wealth tax), etc.
Jackson writes -- she's making kind of a theme of this to be honest -- that it's not the job of the courts to second-guess policy decisions of Congress, and taxation is almost a plenary (unbound) power of Congress, so y'know, back off, this ain't our job.
Barrett thinks Kavanaugh's opinion is wrong in every jot and tittle, reads all the precedents incorrectly, and would cabin the US's taxation authority much more strongly (including requirements that income be realized), but ultimately agrees with the outcome because … the Moores conceded that the tax is similar to a tax they conceded was constitutional and nobody briefed seriously that it wasn't, so they lose? That's pretty bogus there, Ofmitch.
Thomas of course thinks that anything that the US Chamber of Commerce doesn't like is unconstitutional. He would hold that realization of income is a constitutional requirement and that the Moores did not realize any income.
Note: There are at least four votes that realization is a requirement for an income tax, probably six, so a wealth tax that doesn't jump through some hopes IS going to lose if it gets passed when it gets to the court. Since the historical process that could result in a wealth tax will also result in a swing of at least two justices to the anti-plutocrat side, we don't have to worry about that scenario yet.
Chiaverini v. City of Napoleon, malicious prosecution
Napoleon cops arrested Chiaverini on fencing crimes. Charges were dropped. He sued for malicious prosecution. The courts below concluded that there was probable cause to arrest him on some of the charges, and therefore the malicious prosecution failed completely.
The Court holds that the Sixth Circuit's categorical rule is wrong -- a malicious prosecution claim is not per se doomed if any of the charges is valid. But of course they don't hold that Chiaverini's claim is good. No, they say "the parties and [the US as amicus curiae] have three different views of how [to analyze the rest of the case] when a valid charge is also in the picture. But this issue is not properly before the Court, so the Sixth Circuit should address it on remand."
The Rule of Continued Appellate Lawyer Employment, again.
Kagan for the liberals and non-BTA; Thomas with Alito dissenting; Gorsuch dissenting.
Kagan is very short and sweet, 8 pages. Even the Explainer can't spin a case where everyone agrees into a long dissertation.
Thomas, of course, would blow up precedent (that malicious prosecution is understood as a claim under the Fourth Amendment). Of COURSE HE WOULD. This is why he is the centerpiece of the bomb-throwing anarchist wing.
Gorsuch would also blow up precedent, but by using a slightly different formula for the bomb.
Diaz v. United States, Rule of Fuck That Guy
Diaz was stopped at the border; her vehicle was searched and found to contain a fricking mule load of meth. She was charged in a way that requires the government to prove that she "knowingly" transported drugs.
She claimed not to know about the drugs.
Under federal rules of criminal procedure, expert witnesses may not testify as to the state of mind of the defendant. The US's rebuttal expert witness testified that "most couriers know they are transporting drugs". Diaz appealed, continuing to try to get the expert witness excluded under the state of mind clause.
Held: Fuck that (in this case) girl.
To quote Ken "Popehat" White: "Look he didn’t testify that ALL Belgians is criminals. He just said that MOST Belgians is criminals. So it’s not, whatayacallit, discriminatory.”
That pretty much covers it.
Thomas (of course) for Hard Time Alito, Umpire John, Beer Me, the Professor No Not That One The Crazy One, and for some goddamn reason, Jackson; Jackson concurrence which better be one page, 48 pt font "i'm being extorted"; Gorsuch for the Best Justice and the Professor No Not the Crazy One The Other One.
Thomas relies on "most" not being "all" so it's not formally a violation.
How the fuck is "most drug mules know they're mules" probative of any fucking thing at all? What the actual fuck. Get this shit out of the rules. You just better fucking hope I'm never put in charge of shit, because THERE WILL BE CHANGES. I may complain about the BTA wing of the Court, but they ain't shit compared to what I would do.
Jackson's quisling fucking concurrence leans solely on "sauce for the goose, sauce for the gander". Like a fucking public defender is going to have an expert to duel with the feds. Judges don't even let fucking defense present evidence that discredited forensic analysis is discredited. Budgets don't exist to let capital defendants hire investigators. What the fuck does Jackson think is going to fucking happen if she points out "if the prosecution can say that some cows fart, the defense can say that some pigs jump over the moon"?
I disagree with her decision-making process is what I'm saying.
The dissent mock mind-reading experts and points out that this is an enormous fucking win for the government.
Hey, you know what? Fuck the government, and fuck DHS, DEA, and ICE specifically.
Texas v New Mexico and Colorado, water rights
I will repeat my rubric: State versus state cases west of the Mississippi are always about water rights. State versus state cases east of the Mississippi are about half about water rights and half about Revolution-era boundaries.
Texas wants more water; Texas and New Mexico have reached an agreement and would like the case to go away now. But the US intervened, because it's involved because it operates one of the water departments under dispute, and it thinks the Texas-New Mexico agreement is Carlsbad gold*.
Held: The case continues. Of course it does. The Court is still dealing with 80-year-old water rights cases, this one isn't even a decade old, what the fuck do you think.
Jackson for five; Gorsuch for Thomas, Alito, Barrett dissenting.
I refuse to read any of this any further.
*bat guano. If you expected decorum or maturity, what the fuck do you think you're reading?
State Department v. Munoz, immigration
Guess the result, without even me telling you anything further.
Munoz, a citizen, would like her El Salvadorian husband to be able to return to her in the United States. The consulate in San Salvador denied his application for a visa, with a vague reference to "reasonable ground to believe that entry would be in pursuit of unlawful activity".
Is Munoz entitled to a reason? Does she have any sort of right that the government is bound to respect regarding her husband?
Hah! No, and fuck no!
Have you not learned ANYTHING about US immigration? It's there to keep people like Munoz's husband out. That's all it's for, that's all it does, and thinking that you have any right or freedom or liberty or protected interest is a deep fucking laugh in CIS land.
Barrett for five, Gorsuch separate concurrence; Sotomayor for the three libs dissenting.
Gorsuch would dismiss the case, because the feds provided some idea of the reason why Munoz's husband was denied entry.
Sotomayor cites to Dobbs ON PAGE TWO. ohmigod I love this woman. She is slamming this shit back in their face every time she can. Here, she points out that Dobbs explicitly declaimed that undoing the right to abortion undermined no other rights such as "the right to marry" and "the right to reside with relatives" and yet HERE THEY FUCKING ARE doing exactly that. She is a fiery knight and I want her digitized so she can serve on the Court forever. Anyway, like Gorsuch, she says that the Court didn't need to decide that Munoz has no protected liberty interest in, y'know, her husband.
Erlinger v US, Armed Career Criminal Act sentence enhancement redux all over again
You know, if Congress did its fucking job, we wouldn't have these cases every other term.
The fun part of this case is that the US agrees with Erlinger, so the Court appointed an amicus to defend the lower court judgment.
The exact path that led us to this case is entertainingly twisty, but as it comes to us, the issue is whether a string of crimes Erlinger committed a long time ago were "different occasions" or part of one long bender. If they were different occasions, then his sentence in his "felon in possession" conviction would be godawful long instead of merely cruelly long.
The Court does not decide that. Of course they don't, pay attention.
Instead, the Court holds that, based on the salutary line of sentencing cases starting with Apprendi, any fact that increases a sentence must be proven beyond a reasonable doubt to a jury. So a jury has to decide whether Erlinger gets an extra fifteen years on his sentence for having a gun because a gazillion years ago he had a days-long bender that involved "different occasions" or whether his days-long bender was one occasion.
This takes a total of 84 pages, if you care.
Gorsuch for a mixed group of six: Umpire John, SO UNIQUE YOU GUYS, the best justice of all, the Explainer, and the Crazy Professor. Umpie and Uniquey have concurrences. Kavanaugh dissents with Alito, and with Jackson except for part III. Jackson dissent. Jackson better the fuck not be writing against the Apprendi line of cases or Ima be disappoint.
Roberts would hold that the error is subject to harmless error review; this is, of course, an invocation of the Rule of Fuck That Guy.
Thomas calls out a specific precedent that allows a judge to find the fact of a prior conviction without requiring it to be presented to a jury; he would blow that case up. I am a little surprised, but hey, any opportunity to overturn a precedent.
Kavanaugh would hold that if a judge can find the fact of a previous conviction, they can also find the fact of same-or-different occasions. Part III is about harmless error, so that's where Jackson would disagree.
Jackson has the longest goddamn opinion at 29 pages. What the fuck is she on about?
OH MY FUCKING GOD SHE THINKS APPRENDI WAS WRONGLY DECIDED. That's it, the bloom is off the rose of this fucking relationship. What the hell, Jackson. Am disappoint.
Smith v. Arizona, expert testimony, confrontation clause
Smith had a shitton of something that was probably drugs. The lab analyzed them and said, yeah, this is a shitton of drugs. BUT the technician who did the tests left the lab and so wasn't available to testify. So the lab sent somebody to read her reports and offer "independent opinion" about the tests.
The Court previously said: a) The confrontation clause means that the defense has to be able to cross-examine the analysts who do tests (Melendez-Diaz) b) the confrontation clause means that you can't just substitute another analyst (Bullcoming) c) if you bring on another analyst to quote the analysis and then offer an "independent opinion" then flibberty flop wheep whop banana peel Gros-Michel hinkaboo (Williams)
That is, the Court's opinion in Williams was fractured. It mostly held that quoting the analysis was testimonial implicating the confrontation clause but it also held that Rule of Fuck That Guy, Williams loses on other grounds.
So THIS case gives them a fair chance to redo the Williams case, and this time, it's not gibberish.
(Note to self: See if you can find if you reviewed the Williams case when it happened. How consistent am I?)
Anyway, yes, quoting the analysis is factual and implicates the Confrontation Clause.
Kagan for the other 2 libs plus Kavanaugh and Barrett in total and Thomas and Gorsuch for I, II, and IV. Thomas and Gorsuch both have separate concurrences. Alito concurs in the judgement with Roberts. So this still pretty fractured but there's a clear majority for the result and unanimous for the outcome; Smith wins.
Thomas skips section III for essentially weird Thomas reasons (he'd limit "testimonial" to only that which was historically testimonial, like an affidavit). Gorsuch also disagrees with III's guidance on whether the reports were "testimonial" -- there are certain magic words in use here, like "testimonial" and "offered for truth" and so on, and they don't have any rational definition, they're magic words, so don't sweat it if you don't see the difference -- so he writes some of his own gibberish. If you're keeping track, that's three separate opinions about evaluating "testimonial", so it's fractured.
Alito's concurring in the judgment starts by calling the Court's main opinion extremely stupid ("a needless, unwarranted, and crippling wound"). He agrees with the Court's result largely by looking through all the way down to the analyst's actual testimony and agreeing that it was (essentially) hearsay and therefore inadmissible.
Finally
United States v. Rahimi, gun rights
Rahimi is a shithead who beats his loved ones (he has a domestic violence restraining order). Under federal law, he can't have a bang-bang on the reasonable grounds that assholes who beat their intimate partners who have bang-bangs regularly end up bang-banging their intimate partners to death. But people who worship at the altar of the bang-bangs think that nobody should ever not have a bang-bang, so lawsuit.
PROFANE AGGRAVATION, I'm tired of the gun worshippers. I'd like people to stop getting fucking shot to death, please.
This case was complicated by the Supreme Court's extremely stupid decision in Bruen (by fucking Thomas) that gun control laws must have exact analogues in early US history. Please go read actual stories about how stupid that decision was and how much shit the lower courts have had to deal with in its aftermath.
That is, since there wasn't any such thing as "domestic violence" in the early US, there's no such thing as a law that an asshole like that can't have a gun. Under Bruen, Rahimi has to get his bang-bang.
So the Court takes the ball away from Thomas and says, we're not fucking assholes, everybody stop being such stupid idiots, "when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment".
Bruen is rewritten to require "historical analogue" rather than "historical twin" for gun regulation.
Roberts for 8; Sotomayor for Kagan concurrence; Gorsuch, Kavanaugh, Barrett, and Jackson individual concurrences; SO UNIQUE YOU GUYS dissenting.
Hey, Thomas: Fuck you. F U C K Y O U. And your motor home, I hope you shoot a hole in the fuel tank and it burns to a shell.
Anyway, Roberts does a credible institutional job of pretending that he's not backing the hell away from Bruen as hard as he can while still ignoring all of Bruen's functional parts.
Sotomayor hits the nail right on the head: "the Court’s interpretation [of Bruen] permits a historical inquiry calibrated to reveal something useful and transferable to the present day, while the dissent would make the historical inquiry so exacting as to be useless."
Gorsuch defends Bruen as doctrinaire originalism, and Rahimi's case fails not because he's wrong but because it was a "facial" challenge (no possible constitutional use) rather than an "as-applied" challenge (unconstitutional as applied to the plaintiff). He ain't redeemed, he's still an originalist stooge.
Kavanaugh writes a 24-page law journal article "to review the proper roles of text, history, and precedent in constitutional interpretation". Yeah, it doesn't count if the only journal that'll publish you is the one you control, tool.
Barrett spends five pages making a subtler point clearer than K does in 24, discussing originalism and balancing generalization and specificity.
Jackson points out that lower courts' problem applying Bruen is the Supreme Court's problem for making such a decision, not the lower courts' problem.
Thomas would apply Bruen with fidelity, requiring an identical regulation to be valid. No one agrees with him here and they're all asking themselves why they let him take Bruen in the first place.
