Waiting for the SCOTUS Hit Parade

SCOTUS backlog raises eyebrows.

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David Lat stands in for Host Emeritus once more to help Sarah catch up on the latest Supreme Court decisions. Too, they take a detour on penmanship.

-Why the justices make us wait

-On Puerto Rico’s sovereign immunity and Kagan’s stylistic quirk

-Durham Report

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  1. Sam19952005

    Great David substitute!
    What a good week of shows very good content and the lightness and laughing is always a great part of the brand and David was on cue and authentic and fun. Of course smart which I should have stipulated (by passing the Sarah test but it kind of goes without saying).
    Really enjoyed the 8-1 Thomas fun.

    Such a great podcast and while a fan, okay super fan of Jonah, I mean when he takes a break from his normal routine it is first in line assuming that Stirewalt pod from another place has been completed too. Just a pleasure. I always leave smarter and entertained (not the case for the other mentioned pods 😊)
    Too, love the ranking rivalry banter. Thanks you both for the great shows.

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  2. Andrew C.

    Just wanted to say that I really loved guest David. I hope he joins the podcast down the road as well from time to time

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  3. Priesa01

    When will you have Randy Barnett on the show?

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  4. Tom S

    On the SCOTUS backlog/workload issue, perhaps SCOTUS should work to significantly shorten their opinions focusing more on the result and the go forward rules and less on all the history and lengthy reasoning.

    Takes Dobbs as an example:
    1. Roe and Casey were egregiously wrong and are overturned.
    2. The Constitution doesn't grant women any rights to make choices about ending a pregnancy. That issue is left to the democratic process at the state or federal level.
    3. Rational basis is the review standard for any issue concerning abortion rights and women's rights to make reproductive health decisions.
    4. Other substantive due process rights may or may not be impacted by this decision.

    Or Bremerton:
    1. States should not be concerned with establishment clause issues.
    2. The Coach was engaged in private religious exercise.
    3. People offended by being impacted by other's religious exercises need to get over it.
    4. Unless there is massive, easily identifiable coercion of students to participate in religion against their will, the religious freedom of the individual will always carry the day.

    Both decisions could have been written in less than an hour.

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  5. Shadraq

    1. David II is a great substitute for David 1 - please have him on more often.

    2. "Too," to begin a sentence poses another problem. As Sarah read aloud the paragraph, when she read "too," the listener hears instead, "two," believing that this is the author's second point rather than the intention of modifying or clarifying the preceding sentence.

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  6. Mfitz

    David, you’d said: “If you are young, and superbly qualified, and diverse you have the inside track ”. What did you mean by “diverse”? It kinda came off as an off-putting euphemism for “not white”.

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    1. Davidbenjaminlat

      No, you're correct. I actually share your queasiness/distaste, but I'm generally a descriptivist on language, and the ship sailed on this long ago. Here's something I wrote back in 2012 on the issue:

      https://abovethelaw.com/2012/01/grammer-pole-of-the-weak-the-meaning-of-diversity/

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      1. Mfitz

        Thanks for responding. If I’m understanding your article you consider “diversity” to essentially mean anti-white discrimination (or possibly anti-male or anti-heterosexual), correct? If so, then why not just calling it what it actually is? If one is opposes discrimination then it would seem unwise to sugarcoat it with “pleasant and genteel”verbiage. Launch a new ship! :)

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        1. Davidbenjaminlat

          I'm very opposed to affirmative action, which I actually prefer to call "racial preferences"—see link below. But I still use the term "affirmative action" because I'm a descriptivist on language, and "affirmative action" is the most commonly used term for this policy.

          My views on affirmative action:

          https://davidlat.substack.com/p/affirmative-action-is-going-down

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          1. Mfitz

            Good reading! I’ll have to subscribe to your Substack. I completely agree with your position but wonder if ceded the ground linguistically is wise. There’s a reason most media outlets say anti-abortion and not pro-life. It wins the emotional argument which, if we’re honest, is the one that’s often more important.

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    2. Edward Moffett

      I would imagine that David meant "diverse" in skills and knowledge.

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      1. Mfitz

        That’s entirely possible and I might be totally misreading him.

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    Njh2005

    AO gets results! Kagan’s dissent in the Warhol case has no instances of “Too,”.
    https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf

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    Matt Sherman

    Not a lawyer but work in academia and have had enough interactions with various Ivies over the years that I have to say David is right in his suggestion priorities. Everything I see from Penn in how they organize and run things makes me surprised how poorly they stand up to their competitors.

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    John Will

    Concerning the "too" and "also" discussion. The two words are adverbs meaning the same thing. However, "also" precedes the verb in a sentence, whereas "too" follows it. For example, "I went to the store, too" and "I also went to the store". The problem is that Justice Kagan was using "Too," as a coordinating conjunction to replace ",and" and separate her long statement into two sentences about Congress and PROMESA respectively. With all due respect to the justice, she is wrong. It needs to be "Also,". I spent 30 years trying to pound the FANBOYS replacements into my hs students. Even they would not have used "Too,". It just sounds wrong on so many levels.

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      John Will

      The thing that is driving me crazy is that, yesterday morning before I listened to AO, I read an article in which the author did the "Too," thing, and I cannot remember who it was. It was WOTR, Lawfare, ISW, or Semafor, but I couldn't remember which or go back and find it. When I saw it, my delicate retired English teacher sensibilities were sorely offended.

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    Bill Dyer (aka Beldar)

    I preferred "Debentureholders," but my principal (whose description before her name begins with "The Honorable") preferred "holders of the Debentures" — which latter, accordingly, appears 42 times in an en banc opinion joined in by a total of 23 other U.S. Circuit Judges of the Old Fifth. I still prefer "Debentureholders," though.

    Thank you for mentioning the Miguel Estrada nomination, Ms. Isgur. "Disgusting" is the right word for how he was treated by the Senate Democratic Caucus, but because of the stakes, the anti-Kavanaugh jihad was worse.

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