Nuking the Independent Legislature Doctrine

"Nah dawgs" falling from orbit.

By and
117

As the term rushes to an end, the Supreme Court wades eagerly into a mooted case in order to close the door on the “independent legislature doctrine.” But does it matter? David and Sarah disagree. Also:

-Nobody expects the Marbury v. Madison citations

-What counts as threats online? (Or: Is recklessness subjective?)

-NYT v. Sullivan holds strong

-Supreme Court bingo: The Countdown

-Supreme (court) ignorance

-“You only defend justices Thomas and Alito because they’re conservative.” Nope.

Show Notes:

-Marquette Law School Poll

-Moore v. Harper

-Counterman v. Colorado

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Comments (117)
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  1. Avatar photo
    Joseph Conquest

    Any thoughts on whether the NC Supreme Court specifically reanalyzed the case to try and moot it out after the disastrous oral argument by the legislature? Only to have the US Supreme Court hold tightly to the legal football, and “nah dog” the attempt to force a fumble.

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    Ben Connelly

    I agree with Sarah on having an institutionalist part of my brain and a Gorsuch part of my brain.

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  3. Ken Motamed

    I wish Sarah and David would pronounce Justice Gorsuch's name correctly. It's "such" not "sech." It should be easy enough to pull up the part of his confirmation hearing where he pronounced his name.

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    Jrstorella@gmail.com

    “Between you and I”? “Between you and I”?! Oh, Sarah.

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    PaulH

    In defense of Thomas and mootness, the rules that the PA Supreme Court put in place remained good law after 2020. So while the Court could not remedy any impact they had on the 2020 elections, it could have determined that they would not apply in the future. OTOH, even if the SC had agreed with the ISL theory, it is not clear what impact that would have had on North Carolina.

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  6. MathewA

    Reading through the affirmative action opinion and loving it. I can't wait for the pod!!!

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  7. Placid Paddler

    Here’s an idea that makes real sense for dealing with private jet rides:

    Get over it!

    It’s no big deal, and every time we continue to bow to these Marxist and populist inspired reactions it makes things worse for everyone who cannot afford a private jet and no one who can. Attacking the jets has virtually destroyed a great American industry - the manufacturing of piston aircraft used for affordable business and leisure travel. And, it’s led to more jet sales.

    Let’s first attack the misperception that a ride on a private jet has an outsized value that will warp the judgement of our top government officials. If that’s so, then let’s stop buying the very same jets for government and military executive travel. Ah, but those jets are not decked out in luxurious wood veneers, leathers, and fabrics with private attendants and fancy refreshments.

    Okay, then no visits to nice other places either? After all, if I invited you to a fancy gathering at a home or club in the same town where you work, wouldn’t you rather do that than get on a small plane for a couple hours each way for the same sort of gathering? Most Americans consider getting on anything smaller than a 737 to be undesirable if it’s not a private plane. That’s different because reasons. Well, if it’s all the finery, then why is the same or greater level of posh allowed on the ground?

    It’s all just cachet, and I’m sorry, I don’t want to go on your Gulfstream any more than I do United. I just want to go on United a lot less. The difference is I’ve owned a private plane, I’m a pilot, I’ve been on a few trips in decked out Gulfstreams, government jets, more utilitarian jets, and it’s just a plane ride in the end. Usually, it’s a ride with pretty mediocre catered food (because that’s what’s available near the airport). It’s pretty common to get deli food or fast food because what’s available is actually better quality than the fancier meals from the caterers. I would certainly hope our top national leaders are beyond being corrupted by a plane ride, but if not, they likely won’t be after a few.

    Also, I’m really, really tired of playing the game of accepting something looks bad and not pushing back with the truth. You talk about game playing with recusals. What about game playing with appearances? I’m glad a Justice pushed back on these sorts of spurious attacks by biased actors (ProPublica) who are actually trying to influence court outcomes by appealing to the misperceptions of the mob. Am I wrong that real leadership involves leading people to knowledge rather than playing to their ignorance? One might argue a politician is unwise to fight that way, but a Justice isn’t elected. Good on him for pushing back, and I’m disappointed with the rules changes.

    I love you guys, and I really hope you can figure out I’ve got a point here even though I’m certainly not a good writer.

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    1. Greg Clark

      If you're only getting something for free because you're a Justice, that's a problem.

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      1. Placid Paddler

        Sounds simple, except I’ve picked up friends in my airplane, and brought them to my river front condo. It was an international trip to boot! (Sounds much more impressive than it was, trust me). Friends from my previous job. So, pardon me if it’s not that simple.

        Perhaps you’ve picked up some friends in your car and took them to dinner? Took someone out fishing in your boat? Are justices not allowed friends?

        Here’s something else. If you pay the Justice to speak, you can pick up all the expenses and give them a bri…err…check. I don’t know who your favorite government officials are, but I bet dollars to donuts they’ve taken a speaking gig. Likely, there was a nice hotel stay and covered expenses.

        Still simple?

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        1. Greg Clark

          Your life sounds super nice. But your and my life experiences are utterly irrelevant to what 9 people entrusted with this position should or should not do. If you can't live the life you desire because you're a Justice and more is expected of you, you can retire.

          Justices shouldn't be lobbied; politicians can be. Politicians are supposed to be responsive to the public. If you want to influence a Justice's opinion, put it in the brief.

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          1. Placid Paddler

            You’ve moved from only getting something free because you’re a justice, to justices must be cloistered. Perhaps you don’t realize this? Maybe you don’t understand the likely repercussions? I don’t think you really thought about my previous post.

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    2. Michael M

      My god this is a hollow, tone-deaf argument.

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      1. Placid Paddler

        Lol, if that’s all you got, you are just part of the problem. Seriously, you agree that the reality is that people who have irrational and classist reactions to business jets are all wrong, but pointing it out is tone deaf? Color me tone deaf. I choose honesty and candor.
        Here’s some tone deaf for you. How about the thousands of workers unemployed and their jobs gone after tax changes aimed at reducing the “subsidies” for Bizjets destroyed piston aviation and increased the pilot shortage? Those companies were finally recovered and continuing US dominance in light aircraft, but now they are mostly owned by China who no doubt used the tech transfer to improve their suicide drones. Brilliant policy!
        If you painted a Gulfstream in SWA livery and pulled it up to the terminal instead of the usual 737, half the passengers would complain. Oh, but a ride on a private jet is a bribe? And, I’m tone deaf.
        Your song still sucks.

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        1. Michael M

          I have nothing against business jets. I have a problem with supreme court justices being given rides on luxury jets, not disclosing it despite the clear obligation to disclose (the personal hospitality exemption did not then, and does not now, cover travel), sitting and ruling on a case before the court brought by the guy who gave him the gift, and then claiming that no reasonable person could question his impartiality.

          I have flown multiple times on a a GIVSP (and I’m quite sure Paul Singer’s jet is bigger and nicer), and you could slap a rent-a-wreck livery on it and anyone flying on it would realize it is dramatically more luxurious and exclusive that the nicest of the nicest first class commercial flights.

          Also I think you might have paranoia and an anger management problem.

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          1. Placid Paddler

            Rest assured, I have neither problem. Keep up the ad hominem nonsense and we can be finished. Attack the words or ideas, please.

            If you go back and read my post, you will see that talk about the jets being more luxuriously outfitted. It’s still time spent on a relatively small plane when most everyone considers being a passenger in a plane to not be a desirable state. I also pointed out that if time spent in luxuriously appointed spaces is the problem, then why pick on jets? Why not clubs, restaurants, personal homes, museums, etc?

            And why is “exclusive” of such great value to a guest? Exclusivity is a weird quality, and not always desirable. I’ll tell you what’s exclusive, dinner with a Justice. Every meal a Justice attends is exclusive. Truly, I think it’s exactly to my point. There’s actually no there, there. Calling it a “luxury jet” just enhances my point. It’s just cachet. If I gave someone unlimited use of a luxury jet on the condition they rode alone and always landed at the same airport, they would get bored with it before very long.

            Your slanted description of the situation merely shows your bias. If you want to attack the podcast’s description, you should be more specific and make your case. Furthermore, you exaggerate his defense to the point of hyperbole. Do better.

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  8. Chitown

    A separate question for advisory opinions fans. How do I search this podcast? I was curious to learn more about student loan forgiveness, but can't find an episode on that recently. Last one I found was Sept 29th.

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    Katie H

    I feel an emergency pod coming on…👩🏾‍⚖️👨🏼‍⚖️👨🏿‍⚖️🧑🏻‍⚖️

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  10. SRHuckaby

    I have to admit, I wonder about Thomas. He's consistent and I consistently wonder about him -- his decisions seem to be contrarian to the point of wondering if maybe that is the point? I don't want 'outcome based decisions' but to ignore outcomes is also not the answer.

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    1. Bradgreenwald

      wonder in what sense? Do you think the Court would be better if it had less diversity of approaches?

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