SCOTUS to Congress: Do Your Job

Pork problems and wire fraud.

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While host emeritus is off for a week on a mysterious mission, David Lat of Original Jurisdiction rejoins Sarah to sift through the latest Supreme Court decisions. On the docket:

-Gettysburg update

-Attempting to answer when individual members of Congress can go to court

-The unsatisfying end to Pork Producers

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  1. A. Flores

    re: the issue with Pike balancing test - it seems this may implicate Title VII, and im curious what the podcasters think abt this. So a few of the justices say that judges can't balance economic burdens vs. the welfare of pigs. And to apply this to title VII, the statute uses the term "undue burden", which just means an inconvenience to the employer or an economic cost that outweighs the religious liberty interest at stake. David French argued against setting the line at "de minimus" which seems totally correct. But when judges take cases under Title VII, then they're explicitly called on to weigh the employee's religious liberty against the employer's convenience / economic interest. So then Title VII might not be good law in the first place because it's overly vague, by failing to set a more specific standard than "undue". The statute could basically be paraphrased as "religious accommodation must be made for employees unless it's too expensive or inconvenient". In my opinion the justices here are probably correct to be skeptical about being able to make this kind of balance. They seemed really puzzled when trying to do so in recent Title VII cases.
    Separate note Ms. Isgur and Mr. Lat make a great podcast duo!

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    1. Davidbenjaminlat

      You're correct to note that this is a challenging task and recurring theme throughout the law. It will be interesting to see what the justices who don't like Pike balancing have to say in Groff v. DeJoy, the case you mention about religious accommodations under Title VII.

      Thanks for the kind words!

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  2. Avatar photo
    PaulH

    I wonder how realistic it is to think that states' would try to require that products must be made in states where there is a living wage or where there are certain abortion rights/restrictions etc. I think that most red states would resist implementing such changes. And given how complex supply chains are, I think it is likely that few producers could actually comply if they couldn't include any components from red states.

    Also (too?), I don't know how California could import much from China or vast swaths of the world if it required living wages to be paid and abortion right/restrictions would implicate much of Europe. And I don't see on what rational basis California could have the law apply only domestically.

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  3. Smcutter

    For all of Sarah’s grammatical pedantry, I was a bit surprised that she uses ‘loan/loaned’ as a verb, instead of the more formally correct ‘lend/lent.’

    It’s something that I’ve grown quite used to ignoring, but I always smile in my heart when someone chooses to use the more correct verb.

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      Interesting! I’ve always thought lend/lent applied to tangible property and loan/loaned to financial interest. She lent me her scarf. She loaned me $20. Am I just wrong?

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      1. Smcutter

        I had worked in mortgage finance for 10 years when my then-girlfriend told me that I was using loan incorrectly as a verb. I set out to prove her wrong, but I couldn’t. A few days later I proposed, and now we’re married with two kids. She’s been right about damn near everything, linguistically.

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          PaulH

          Webster's says it is OK to use loan as verb: https://www.merriam-webster.com/dictionary/loan .

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  4. Philip Sutherland

    I think I lean more toward Gorsuch's view of the law because we are in effect punishing states who happen to happen to have large populations that incentivize private companies to adapt to their standards. If these pork standards were institute in Vermont, as Sarah points out, then nobody would care. This is the case with CAFE standards for cars. The Trump administration wanted to prevent California from imposing stricter mileage standards because it would effectively force care manufacturers to comply with with those standards in all the states.

    Why doesn't it make sense to simply give states the right to impose their own moral intuitions and let the economic chips fall where they may? In the case of CAFE standards, for example, car manufacturers can choose to change their manufacturing and produce different cars for different states if that is what the market demands. If consumers get fed up with the resulting higher costs, then that should lead to Congress finally intervening.

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    1. Davidbenjaminlat

      I think I'm with you on this. As the states get more and more aggressive about passing laws with extraterritorial implications, maybe Congress will finally rouse itself.

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    Martin

    It’s frustrating that we keep trying to criminalize what everyone recognizes as corruption - like bribing an official to get assigned a contract, or shutting down a bridge to hurt a political opponent - and the Court keeps telling us we can’t.

    So much for Congress doing its job. If the Court is determined to ensure corruption is legal, then what can be done?

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    1. Davidbenjaminlat

      A fair point. There are certainly times when Congress takes action and the Court shoots it down. E.g., Dickerson v. United States (Congress can't overrule Miranda v. Arizona); City of Boerne v. Flores (Congress can't overrule Employment Division v. Smith).

      But here I think Congress was just lazy when it came to the honest-services statute, 18 U.S.C. § 1346. The law reads in its entirety as follows: "For the purposes of this chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services."

      In other words, they couldn't be bothered to come up with a criminal statute that listed the elements of the offense. Instead, they tried to glom on to the pre-McNally case law. But the problem, as Justice Gorsuch pointed out in his Percoco concurrence, is that this case law was all over the place on a whole host of key issues.

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        Martin

        Thank you for the explanation! Makes sense.

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    Nikkimemmott

    Re: Queen Charlotte…. I was a little frustrated in the last episode to hear Sarah call it “soft porn”, and disappointed again to hear her call it “trashy” this time.

    I admit, I haven’t seen the whole series yet. And I’ll concede that there has been more nudity earlier than usual, especially for a Georgian period romance, but the wedding happened in episode 1 and not episode 8 or 10, so not totally surprising.

    I just can’t help feeling that if this wasn’t a romance genre show there would not have been such a dismissive characterization of the show. It was especially disappointing to me to hear it described in terms that have been used over the years to denigrate romance- a genre that has been written by and for women in a way that most are not.

    Which is not to say I expect everyone to like the show. Or even to be comfortable with the amount or graphic nature of sexual content. But there is arguably as much or more in a lot of other non-network shows that aren’t romances, and we don’t call them “trashy” or “soft porn.”

    Even aside from the very interesting concept of the great experiment, I love seeing the way the actresses portraying the younger Queen Charlotte and Lady Danbury echo the facial expressions, mannerisms, and inflections already established in the original series. I won’t pretend the interaction with Brimsley and Reynolds early on didn’t catch me off guard, but seeing that connection early in and them watching them struggle to balance that personal connection with their loyalty to their charge and their interests, not to mention the secrecy required of them - is really engaging to me. Even if it’s not everyone’s thing, it’s a far cry from porn designed merely to titillate.

    If the topic continues to come up on the show - which I hope it does. I’m curious to see what Sarah thinks as the experiment in the show continues - I just hope the show at large doesn’t have to be addressed in derogatory terms.

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    Dougherbert

    David Lat did an excellent job of filling in for the other David, but the timing was perhaps unfortunate as we were deprived of what would undoubtedly have been a tongue-tied, deeply embarrassed response by David French to Sarah's coitus interruptus simile.

    I guess it's too much to ask for Sarah to pose the question to David F about whether the coitus interruptus simile was particularly apt in a case about pork.

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    1. Davidbenjaminlat

      Ha! That would have been a great moment.

      But no, I can't say I was fazed by Sarah's coitus interruptus comment. I've certainly made spicier comments than that while offering legal commentary, during my time at Above the Law and Underneath Their Robes before that.

      (Original Jurisdiction is pretty tame, though, reflecting my evolution from being a single gay guy in Manhattan to a married dad in the New Jersey suburbs.)

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  9. Kyle C

    In regards to the dueling injunctions, couldn't the Supreme Court just start denying certiorari? Then the problem would just sit there and they could call on congress to fix it

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  10. Timothy Sinclair

    I've been listening for months now, and I'm still confused on what an "institutionalist" is. And what is the difference between a high and low institutionalist?

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      Sarah Isgur vertical-nib Author

      Totally fair. Let me try again here. High institutionalist is someone who thinks precedent should be upheld even when wrong, that you should consider whether a new test will be easy for lower courts to apply, what the national ramifications of the outcome of a case may be. After all, what good is a history and tradition tests if the lower courts can’t apply it consistently. That’s judicial chaos.

      A low institutionalist only thinks about the exact facts of the case in front of them. If a past precedent was wrong, overturn it. If the result will let a famous serial killer out to hunt again, so be it. Not my problem, says the low institutionalist! Apply facts to law and let the chips fall.

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      1. Sinclair

        Very helpful!! Thank you!

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