Thursday, July 2, 2020

The Ten Phases of Blue June

By Josh Blackman - July 02, 2020 at 07:30AM

Blue June has finally drawn to a close. It was a month unlike any other in recent memory. Now, with some distance (about 24 hours), we can begin to take stock of what happened. Later this summer, I will publish an essay in the University of Chicago Law Review Online, titled–fittingly–Blue June. For now, here is a compendium of my 43-posts published during this surreal period. I propose dividing Blue June into ten phases.


Phase 1: South Bay (May 29-May 30)

To be precise, Blue June officially began in May. Late in the evening on Friday, May 29, the Court decided South Bay United Pentecostal Church v. Newsom. That case was our first indication that something was up with Chief Justice Roberts. I wrote two posts in the immediate aftermath of this important entry on the shadow docket.

  1. Are houses of worship "comparable" to secular businesses like grocery stores, banks, and laundromats? Chief Justice Roberts said no. Justice Kavanaugh said yes.
  2. Did Chief Justice Roberts signal his Harry Blackmun moment?. Chief Justice Roberts, still haunted by the ghost of Lochner, may be trending towards Garcia v. San Antonio Metropolitan Transit Authority

Phase 2:  A Slow Start (May 31-June 14)

The first two weeks of June were fairly uneventful. The Court decided six cases. The only significant decision was Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC (the PROMESA case). June seemed quite sluggish. I even ventured some predictions on who would write the remaining majority opinions.

  1. Justice Kavanaugh Uses the Term "Noncitizen" as Equivalent to the Statutory Term "Alien." He included the same nomenclature in Barton v. Barr and Nasrallah v. Barr .
  2. More on Corona and the Constitution. I spoke with ReasonTV and the Little Rock Federalist Society Chapter. I am happy to speak to other groups as well!
  3. Mooting Corona Cases Before They Reach the Supreme Court. Blue states played "keep-away" with Free Exercise and Second Amendment cases on the shadow docket.
  4. Another Way to Think About South Bay: Why Allow Protest, But Not Prayer?

    Mayors and Governors admit they think prayer simply isn't as important.

  5. Who will write the remaining major Supreme Court decisions? My prediction: Roberts for Title VII, Roberts for DACA, and Roberts for Espinoza, and Roberts for Tax Return Cases

  6. The PROMESA Board Members Are Not "Officers of the United States." So What Are They? Article IV territorial officers hold "Office[s] under the Authority of the United States," and are bound by the Sinecure Clause.


Phase 3: Blue Monday (June 15)

But on Monday, June 15, our world was turned upside down. Blue Monday. At the time, I wrote:

In the span of 30 minutes, the Justices handed conservatives four defeats.

  1. The Court denied review in ten Second Amendment cases; Justices Thomas and Kavanaugh dissented.
  2. The Court denied review in President Trump's challenge of California's sanctuary state laws; Justices Thomas and Alito dissented.
  3. The Court GVR'd a Texas death penalty case; Justices Thomas, Alito, and Gorsuch dissented.
  4. The Court decided Bostock; Justices Thomas, Alito, and Kavanaugh dissented.

I pumped out eight posts over the course of two days, reacting to the events.

  1. Why did the Court GVR Andrus v. Texas, rather than grant cert? The per curiam majority and the dissent disagreed on many facts that would have benefited from argument.
  2. Why did the Supreme Court deny certiorari in the California Sanctuary City Case after 13 Relists? Justices Thomas and Alito would have granted certiorari. Justices Gorsuch and Kavanaugh, apparently, would not.
  3. The Court Calls for the Views of the Solicitor General in Texas v. California, An Original Jurisdiction Case. Texas challenges California's Interstate "Travel Ban."
  4. SCOTUS grants a "Motion for reconsideration of order denying leave to proceed in forma pauperis filed by petitioner": The IFP motion cited Magna Carta. And the Court grants the motion on June 15.
  5. SCOTUS Splits 7-2 Over Federal Easement Law: Justices Thomas and Sotomayor disagree about how federal law construes a "right of way."
  6. Twelve Years After Heller: The Supreme Court will continue to ignore the Second Amendment until it receives a petition it has to grant.
  7. Senator Hawley: Bostock "represents the end of the conservative legal movement.": "If we've been fighting for originalism and textualism and this is the result of that, then I have to say it turns out we haven't been fighting for very much"
  8. June 15, 2020: Blue Monday at the Supreme Court. Conservatives went 0-4.
  9. Many Republicans quietly breathed a sigh of relief after Bostock was decided. Hawley is right: Congress is "terrified about being held accountable for anything on any subject"
  10. My new approach to SCOTUS Decisions: read (and edit) first, then comment: No more hot takes.


Phase 4: The Fallout from Blue Monday (June 16-17)

Tuesday June 16 and Wednesday, June 17 were intermediary days. The sting from Blue Monday was fading, but the rest of the docket loomed. What would it bring?

  1. Anonymous Reactions to Bostock: Right-of-center lawyers send me their to thoughts on Bostock, Blue Monday, and the Conservative Legal Movement
  2. Judge Easterbrook admits what was implicit in Chief Justice Robert's South Bay Decision: "Feeding the body requires teams of people to work together in physical spaces, but churches can feed the spirit in other ways."


Phase 5: Blue Week (June 18-June 22)

On Thursday, June 18, Blue Monday turned into Blue Week. Chief Justice Roberts wrote the majority opinion in the DACA case. At that point, it became painfully clear that this term would be different.

  1. Understanding Chief Justice Roberts's DACA Decision. CJ Roberts rejects the A&C analysis of the 2nd, 9th, and D.C. Circuits, and tentatively embraces the 5th Circuit's analysis about DACA's benefits
  2. Blue Monday turns into Blue Week, and likely Blue June: Conservatives are 0-5 this week. A new #SCOTUS short list will not help.
  3. Why the DACA Rescission Failed CJ Robert's APA "Severability" Analysis: The DHS Secretary erred because she rescinded the entire DACA policy, rather than just the parts CJ Roberts suggested might be unlawful.
  4. The Equal Protection Issues in the DACA Case: Eight justices found no equal protection violation, but there was no majority opinion on why.
  5. DOJ Should Not Let Chief Justice Roberts Decide Anything Concerning the SDNY U.S. Attorney: Generally DOJ is eager to appeal anything, and everything to the Supreme Court. Not during Blue June.
  6. Where did CJ Roberts's Anti-Saving Construction in the DACA Case Come From?: It was hinted at in the D.C. Respondent's brief, but the Chief's "severability" analysis was a John Roberts blue plate special.
  7. The Unresolved Separation of Powers Questions in the DACA case: Justice Thomas's echoes Cato's brief about the Non-Delegation Doctrine, the Major Question Doctrine, an "Adverse Possession" theory of Executive Power, and the Take Care Clause.
  8. Justice Thomas concludes that the "freedom of speech" is a Privilege or Immunity under the 14th Amendment: Justice Thomas again rejects substantive due process incorporation.


Phase 6: That's it? (June 22-June 25)

On Monday, June 22, the Court teased us with a single decision: Liu v. SEC. And on June 25, the Court released only one case: DHS v. Thuraissigiam. But these assignments helped us narrow down, by process of elimination, who would author the outstanding decisions.

  1. Justice Sotomayor writes majority opinion in Liu, and my predictions for Blue June are still on track: Four cases are pending from the pre-Covid arguments, 10 cases are pending from the May siting.
  2. "Roberts has also been in the court's majority more than any other justice, at 98 percent of the time.": From SCOTUSBlog's Interim Stat Pack.
  3. Why didn't the Trump Administration rescind DACA in a proper fashion?: Making the correct legal argument would have cast doubt on other elements of immigration law, and the acting DHS Secretary refused to say that DACA was a bad policy
  4. Justice Alito wrote Thuraissigiam; Chief Justice Roberts and/or Justice Breyer will wrap up Blue June: June Medical, Espinoza, and Seila Law remain from the pre-COVID cases
  5. Where does DHS v. Thuraissigiam stand?: The Court's first major Suspension Clause case since Boumediene.
  6. Originalism and the Suspension Clause in DHS v. Thuraissigiam: The majority and dissent vigorously disagree about the role history should play in this Suspension Clause case.


Phase 7: Awaiting the End of Term (June 26-June 28)

Over this weekend, we all waited on pins and needles. How would the Supreme Court would decide the three remaining cases: June MedicalSeila Law, and Espinoza? I predicted that all three would go left. I got 2/3 right.

  1. New on NRO: "Justice Gorsuch's Half-Way Textualism Surprises and Disappoints in the Title VII Cases": Randy Barnett and I explain where Justice Gorsuch went wrong in Bostock
  2. Justice Brennan rejected the "literal" meaning of Title VII in United Steel Workers v. Weber: This landmark Title VII case relied on the "familiar rule" from Church of the Holy Trinity v. United States.


Phase 8: Blue June Glooms On (June 29)

On Monday, June 29, the Court decided Seila Law and June Medical. Roberts wrote both majority decisions. In both cases, he distorted precedent in the name of following precedent as part of his quixotic "long game." The June Gloom continued. But the next day would bring a ray of hope.

  1. Blue June Glooms On: The Chief feints left on abortion, tiptoes to the right on the CFPB, and Thomas is still waiting for Godot
  2. The Chief Justices Battle over the Removal Power: Roberts and Kagan present two very different conceptions of the separation of powers.


Phase 9: Rosy End to Blue June (July 30-July 1)

The Chief gave conservatives a rosy parting gift to end Blue June. Espinoza! All the sudden, things didn't look so bad. Plus, with the Chief's rose-tinted glasses, the writing on the wall become clear for Whole Woman's Health.

  1. A Rosy End to Blue June: Is Espinoza enough to make conservatives look past the Chief's never-ending chess match?
  2. The Roberts Court Slowly Inters Justice Kennedy's Ephemeral "Jurisprudence of Doubt": Blue June buries Boumediene, Whole Woman's Health, and Trinity Lutheran Footnote 3
  3. Justice Kagan on Hamilton in Federalist No. 77: Hamilton said that Senate must consent when a new President "displaces," that is substitutes an old officer with a new officer.
  4. Chief Justice Roberts Rewrote Morrison v. Olson: Roberts's fidelity to stare decisis does not include following precedents as written. And we all know it.
  5. Stare Decisis is an Old Latin Phrase that Means "Let the Decisions of the Warren Court Stand": Halfway Stare Decisis, like Halfway Textualism, Allows the Court to be Ruled by the Dead Hand of William Brennan.

Phase 10: Overtime (July 2—Who knows?)

The term that never ends will now go into overtime. Who knows when it will end?

from Reason Magazine Articles