SCOTUS Doesn’t do Anything Truly Terrible Today! Just Rather Terrible… And Some Good?

It is, unfortunately, noteworthy when our SCOTUS doesn’t do something truly awful when handing down opinions, or cynically manipulating the law with the “Shadow Docket”. We got a few opinions today and not all of them were terrible. Two of them I find notable and illustrative of the abuse of discretion contained in Robert’s new interpretive toy, the ‘Deeply Rooted’ test. Hat tip to our AZBlueMeanie today for bringing these new cases and commentary to my attention this morning.

One was certainly good for the safety of women and citizens in general. U.S. v. Rahimi has had those who advocate against domestic violence and provide services for victims of domestic abuse absolutely terrified. As a former Domestic Violence prosecutor and lifelong advocate against domestic abuse, I was certainly deeply concerned about this ruling… and am now deeply relieved at the Court’s ruling in this case. I certainly feared the worst, which would have resulted in potentially thousands more homicides of women by their domestic partners annually.

The outcome was somewhat surprising (given the pre-decisional commentary by the legal community regarding the history of weapons and domestic abusers), and once again highlights that this Court’s ‘deeply rooted in our history and tradition’ test, far from being in any way determinative or making the Court into amateur historians, is simply a means for Judges to do whatever the hell they want with unenumerated rights under the Constitution. We got lucky this time that 8 of the Justices didn’t want to see a massacre of women by their newly armed domestic abusers. One guess as to who simply didn’t give a shit about that…

From SCOTUSBlog. Emphases added.

We have the fifth and final decision of the day: United States v. Rahimi. It is by the Chief Justice. The vote is 8-1. Thomas dissents. [Of course he does…::sigh:: Can’t we just impeach him, please? Ed. MDB] Lots of concurring opinions in addition to the Thomas dissent.

The Supreme Court rejects the challenge to the constitutionality of a federal law that bans the possession of a gun by someone who has been the subject of a domestic violent restraining order.

The court holds that 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.

Roberts explains that “Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.”

Discussing the application by the lower courts of the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, Roberts writes that “some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber.” Otherwise, he explains, the Second Amendment would only provide protection to “muskets and sabers.”

Lots here elaborating on how lower courts should apply the methodology going forward. “Why and how the regulation burdens the right are central to this inquiry. For example, if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions of similar reasons fall within a permissible category of regulations.”

Applying that methodology to this case, Roberts looks at early English and early American gun laws and concludes that they “confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”

Although the federal law at issue here is not identical to those laws, Roberts concedes, they do “not need to be.”

Roberts rejects Rahimi’s argument that Heller established a blanket right to have a handgun in your home, which this law would violate.

Roberts explains that the U.S. Court of Appeals for the Fifth Circuit made two mistakes in invalidating the statute. First, it required the federal government to require a “historical twin” to the law rather than simply an analogue. And because Rahimi was arguing that the law is always unconstitutional (known as a “facial challenge”), the court of appeals should have focused on when the law was most likely to be constitutional, rather than (as it did) when it might “raise constitutional concerns.” “That error left the panel slaying a straw man.”

Sotomayor has a concurring opinion, joined by Kagan, in which she reiterates her belief that Bruen (in which she joined Breyer’s dissent) was wrong.  Sotomayor indicates that she “welcome[s]” the extent to which today’s ruling “clarifies Bruen’s historical inquiry” but says that she “remain[s] troubled by Bruen’s myopic focus on history and tradition, which fails to give full consideration to the real and present stakes of the problem facing our society today.” 

Link:
https://www.supremecourt.gov/opinions/23pdf/22-915_8o6b.pdf

SCOTUSBlog

Of course, for every reasonable gun opinion this SCOTUS hands down (BTW, I really hate that we have good reasons to use this casually imperial/royal sounding phrase for when the Court issues an opinion) has to be balanced with something awful, hence their bump stock ruling in Garland v. Cargill, which promises a new era in mass shooting lethality as the Court opens the door to increasingly deadly automatic weapons in civilian hands.

In the ‘rather quite bad’ column, we have State v. Munoz, in which the SCOTUS’ new ‘deeply rooted’ toy gets deployed to potentially rip apart married couples. So much for ‘family values’! It turns out that the ‘history and tradition’ of this nation does care much for the sanctity of marriage when one of the partners is a non-citizen.

Again from the SCOTUSBlog. Emphases added.

Next up is Department of State v. Munoz, by Justice Barrett.  It is 6-3. Sotomayor dissents, joined by Kagan and Jackson. Gorsuch has a short opinion concurring in the judgment.

This case is about whether the denial of a visa to the non-citizen spouse of a U.S. citizen violates a constitutionally protected right of the citizen and, if so, whether the government properly explained its decision to deny the visa.

The court holds that a citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country.

Barrett explains that Munoz’s argument is built “on the premise that the right to bring her noncitizen spouse to the United States is an unenumerated constitutional right. To establish this premise, she must show that the asserted right is deeply rooted in this Nation’s history and tradition” — but, Barrett writes, she cannot. “In fact, Congress’s longstanding regulation of spousal immigration–including through bars on admissibility– cuts the other way.”

The court holds that a citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country.

Sotomayor writes that “the majority today chooses a broad holding on marriage over a narrow one on procedure.”

Link to the opinion:
https://www.supremecourt.gov/opinions/23pdf/23-334_e18f.pdf

SCOTUSBlog

We remain in an entirely law-free, precedent-free era with this out-of-control radicalized SCOTUS. Our Court has become simply a means for the radically MAGA faction of the Court to do whatever they choose, regardless of precedent and logic, by merely creating their favored ‘interpretation’ of history, with increasingly flexible standards about what constitutes ‘deeply rooted’, what kind of laws are ‘analogous’, and where to look for the contents of our ‘history and tradition’. It seems increasingly and unavoidably obvious that Robert’s new toy is nothing more than a precedent-free license to rule over all of us arbitrarily by picking and choosing the damn teams, as well as the team managers, instead of ‘just calling balls and strikes’.

This is not how SCOTUS should be operating. Democrats and real conservatives with fidelity to our Constitution — rather than God, Guns, and Goddamn everyone but my own team — really need to rein in the power, discretion, and ethics of SCOTUS, and put it back on the leash where it is supposed to be, rather than at the throats of every vulnerable or marginalized minority in America and baying for a fascist Christian theocracy. Mandatory ethics rules, strict financial disclosure with penalties, term limits, subject matter limits to jurisdiction, and expansion of the Court should all be on the table to end this Court’s misrule.