Daily Archives: October 6, 2021

SCOTUS For The Average Joe

Average Joe Scotus: Brnovich v. Democratic National Committee

Leave a comment

In Arizona, people can vote in person or do early voting by mail-in ballot. Forget the mail-in ballots for a minute, we don’t give a fuck about those. The issue here is in-person voting.

You see, in Arizona, counties can decide between two different in-person voting systems. Precinct-based, or voting-center based. What’s the different you may ask?

In voting center based counties, you can go to any voting center in your county and vote, and you’ll be good to go. But in precinct-based counties, you have to go to your particular precinct to vote. So if someone shows up to the wrong precinct, they can cast a provisional vote, but if it’s later determined that this is the wrong precinct, your vote will be tossed in the trash can, even if you live in that county, are a legitimate eligible voter, and made a legitimate vote.

Apparently, 90ish% of the counties in Arizona use the precinct-based system, which hurts the feelings of the DNC. Their argument is that this precinct-based system that discards legitimate votes because they were merely cast in the wrong precinct violates the Voting Rights Act, because it will disproportionately affect minorities, such as the large Native American, Hispanic, and black communities in Arizona.

If I may wax philosophical for a moment, isn’t this pretty fucking racist from the DNC? It effectively argues that these communities are too stupid and pathetic, compared to their white counterparts, to know how to properly cast a vote. I’ve always found this shit insulting AF, even if there is some observational evidence supporting it.

Going REAL abstract, I tend to think this is more about the economic class of the voter, not the color of their skin or their ethnicity. If you’re poor, you’re likely to be less involved in the political process, because you’ve got other shit to worry about, like how you’re going to pay fucking rent.

Since history has not been kind to many minorities, they tend to disproportionately fit into the “poor” category, which then leads to the data to suggest they’ll be the ones getting their votes tossed more. But that’s not racism, that’s a social status issue.

Anyway, there’s a second part to this shit—Arizona HB2023. You see, in Arizona, there were groups who might pick up your ballot, like if you were older than the Grand Canyon, and couldn’t really go to a polling place or drop off location. Republicans, in 2016, passed this bill to criminalize people from picking up your votes for you (except family members, caregivers, mail carriers and election officials), with a two-year stint in the pokey, and a $150,000 fine on the table if someone does it, arguing fairly that it would just make it easier to tamper with people’s votes, since there’s now a more complicated chain of custody.

There was no evidence this occurred in Arizona, mind you, Republicans were just afraid it would. So this leads the racists in the DNC to argue the Republicans are racist (classic diversion tactic), which is probably true on both counts more often that it should be.

So SCOTUS is being asked to decide if the precinct-based system which tosses ballots, and HB2023 violate the Voting Rights Act.

Michael Carvin for the state of Arizona (and the GOP) was asked by Kavanaugh about his brief, where he claims “ordinary” regulations don’t violate the voting rights act. Carvin was quick to paint the Democrats as essentially arguing minorities couldn’t possibly be asked to leave their house, or it’s an unfair and biased ask, which of course is ludicrous, and he was hoping the justices see it that way.

Brett M. Kavanaugh

Your brief says, “Ordinary race-neutral regulations of the time, place, and manner of voting do not violate Section 2.” And that, of course, will put a lot of pressure on the word “ordinary.” Can you tell us how courts are supposed to distinguish ordinary regulations from extraordinary regulations?

Michael A. Carvin

Well, I think the way the Court has done it countless times in the Anderson/Burdick line of cases and in Crawford, what are the usual burdens of voting? This is not some mystery.

We have a long history of about how people go about voting. They show up at precincts and they cast a ballot.

That requires you to leave your house, but that’s not an ordinary burden of voting — that’s a usual burden of voting. Whereas the other side says, you can never have a system which requires anybody to leave their house.

They claim that they can’t find the precincts because of socioeconomic disparities. They claim that they can’t get to mailboxes because of socioeconomic disparities, which means that the state needs to allow partisan operatives to go collect the ballots.

Well, if that’s true, of course, that means that the only system that would satisfy their test is something where the government is sent house to house to collect the ballots. And I’m just saying that that can’t come with any rational definition of the usual burdens of voting, which is you register and you go cast your ballot.

And that is not a very difficult burden, and it’s certainly not a difficult burden here when 99.8 percent of minorities were able to find the right precinct.

In a 6:3 partisan vote, SCOTUS sides with Brnovich (Republicans), which I suppose was somewhat predictable. They deemed such precinct-based voting policies do not violate the Voting Rights Act, as they are not race based in any way, even if the DNC colorfully argues it will affect minorities more.
They also rejected the notion this creates some unusual burden to ensure they go to the right precinct. We live in an age where everyone has a smart phone or access to the internet, or at least access to someone who has the internet. Figuring out where to go in order to vote properly, is not some crazy difficult law.

The dissenters of course feel the majority essentially made a decision based on semantics, with no regard to ensuring everyone has an equal opportunity to vote.

Hear oral arguments and read about the case here
https://www.oyez.org/cases/2020/19-1257
SCOTUS For The Average Joe

Average JOE SCOTUS: United States v. Arthrex, Inc.

Leave a comment

Here’s a fun one. Imagine you’re applying for a patent, your patent will be reviewed by a team of Administrative Patent Judges (APJ). These people are appointed by the Secretary of Commerce, and and approved by the Director of the US patent office, similar to how the president appoints SCOTUS justices with review by the Senate. This was created as part of the 2012 America Invents Act.

Arthrex owned a patent for some medical device, and Smith & Nephew made something similar. So Arthrex sued Smith & Nephew, and Smith & Nephew fired back, asking the panel to review whether their gadget was even patentable. So these claims were subject to inter partes review, which is basically a fancy term meaning someone other than the patent holder challenged the legitimacy of the patent.

APJs reviewed Arthrex’s patent, and decided that their shit wasn’t patentable—win for Smith & Nephew. So then Arthrex was like, “We’ll show you, motherfuckers. We’re going to challenge your right to even fucking exist!”

You see, they argued that these APJs violate the constitution since they’re federal positions, where they can only be fired if they commit a crime basically, which Arthrex argues makes the “principal officers” and thus must be appointed by the president, and reviewed by the senate.

A circuit court agreed, and severed the part of the law that protects their tenure, and does allow for them to be fired, thus making them inferior officers, and no longer violating the appointments clause of the constitution.

All parties involved seemed bothered by this, because it removed Arthrex’s objection without providing relief, Smith & Nephew were pissed because the APJ decision was vacated, and the government was pissed because the court shit all over their statute.

Smith & Nephew along with the government say these APJs were always inferior because they are managed by the secretary of commerce, and director of the USPTO. But Arthrex is like, “Hey man, their decisions are final, and only reviewable by an appellate court. So sure they have fucking bosses, but if their decisions are final, they’re fucking principal officers.”

Counsel for Smith & Nephew came out swinging, that these APJs were already inferior officers. His opening salvo was:

Mark A. Perry

Mr. Chief Justice, and may it please the Court: Arthrex’s proposal for a bright-line administrative review requirement rests on a single line from Edmond noting that the military judges couldn’t render a final decision unless permitted to do so by other executive officers. The Court in that sentence was not announcing a requirement for inferior officer status.

It was commenting on the narrow scope of CAAF review, which followed its observation that the JAG could not provide advance guidance to the military judges. In sharp contrast, the PTO director can and does give substantive guidance to APJs. He also has unilateral institution and assignment power, and he can order review of any board decision. Moreover, only the director takes final actions by confirming or canceling patent claims.

APJs can’t render any decision unless the director permits them to do so.

They are inferior officers.

https://www.oyez.org/cases/2020/19-1434

Justice Thomas pushed counselor Perry to define the “test” as to what makes someone an inferior officer. The exchange went like this.

Clarence Thomas

Thank you, Mr. Chief Justice. What would be your test for whether someone is an — an inferior officer? The — it seems to be almost a totality of the circumstances.

Mark A. Perry

Justice Thomas, the — the — the principal officers sit at the right hand of the President.

They — the only ones this Court has recognized are the ambassadors and the cabinet officers, and the heads of agencies —

Clarence Thomas

Yes.

Mark A. Perry

— are one step removed. These individuals are three steps removed.

So, you know, the Secretary definitely is.

The director may be.

The APJs definitely are not.

And that’s the chain of command that the Court has described over and over again. That would be one test. The other, the — the Edmond totality- of-the-circumstances test is supervision and control.

And these officials are supervised and controlled in everything they do.

Clarence Thomas

And how much supervision and control are you talking about? Can it be partial supervision? Can it — does it have to be absolute supervision? I don’t — it’s really difficult to discern how much would be required under your test.

Mark A. Perry

Your Honor, the — the ultimate test is whether the President and his direct reports remain accountable for the operations of the agency.

So, if the Congress were to give total free reign to a — to a sleeper agent embedded within the agency, that might be a problem. But where the chain of command is preserved and the director and ultimately the Secretary and the President bear the responsibility and accountability, that is sufficient.

And the totality of the circumstances here show that the latter is the case with respect to the Patent Office.

Perry went on to argue how they are inferior to a separate question Justice Kavanaugh by saying:

The APJs do not cancel patents. The patent in this case is still valid. The board has declared it to be unpatentable, but the director has not canceled it. So, to this day, three years later, nothing has happened because the director, the politically appointed directly accountable to the President individual, has not taken the action specified by statute. The Congress has made a different determination here, but it is absolutely consistent with the dictates of the Appointments Clause.

https://www.oyez.org/cases/2020/19-1434

In a narrow 5:4 decision, where Thomas sided with the left justices, SCOTUS sided with the United States. These APJs are unconstitutional. As such, Chief Justice Roberts required the director of the USPTO hold the ultimate authority to review a final outcome of such proceedings going forward.

Justice Thomas felt like it wasn’t for the court to solve, by making them have a boss, but instead, the court should have just ended the APJs altogether.

SCOTUS For The Average Joe

Average Joe SCOTUS: Lange v. California

Leave a comment

Arthur Gregory Lange is an odd motherfucker. Dude got crazy fucking drunk, like 0.245% fucking drunk, got in his car, and decided to have a rock concert on the drive home. Cranked his tunes up, opened the windows for all to enjoy, and even honked his horn randomly, so he could feel like he was part of the band.

Well, in comes detective Aaron Weikert, apparently not a music lover, who thought Lange’s behavior might be a little suspect. He was right. Did I mention this dumb fuck blew a 0.245%? That’s over three times the legal limit!

Anyway, Weikert followed this idiot, eventually flipped on the blues and twos, and attempted to pull Lange over. Lange, being drunk out of his god damn mind, didn’t even fucking notice Weikert, pulled into his driveway, opened the garage door, and pulled on in, Weikert in his drive way behind him, pretty confident at this point that Lange was ten kinds of fucked up.

So as Lange went to close the garage door, Weikert tripped the garage door detector with his foot, so it wouldn’t close, and walked into the garage to confront Lange. He noticed immediately Lange’s breath smelled like he drank all the alcohol on the west coast. So he took him to a hospital, where they obtained his blood alcohol level.

At the heart of this challenge, is whether Weikert had the right to step into Lange’s garage. At the time he did, Lange was listening to music loudly, and honking his horn at literally no one. Both are minor infractions, and not necessarily cause for an officer to enter someone’s home. So Lange and his attorney, doing their level best to protect Lange from being convicted of a felony he absolutely committed (drunk driving), by making a colorful argument that the officer didn’t have any lawful reason to enter his garage. I say colorful, because let’s not forget, Weikert flashed his lights and shit at Lange well before he got to his garage, and Lange was fucking oblivious to it. So Lange essentially has to prove it was reasonable he wouldn’t notice a fucking cop on his tail with lights and siren going, and thus wasn’t fleeing arrest, which would be a felony, and thus would be cause for the officer to follow him into the garage to affect an arrest.

Lange’s attorney tried to argue officer’s should have let him close the door, and simply knocked on the front door and confronted him in that way, versus entering his garage.

Roberts, being unimpressed by this argument, responded:

Mr. Fisher, I’m trying to figure out, going back to what Justice Alito was saying, what circumstance where there is a genuine hot pursuit do you think would not justify a police officer, just on the basis of the pursuit, believing that the person was trying to hide something, trying to perhaps destroy evidence, whatever the cause, why wouldn’t that justify a — wouldn’t the nature of the pursuit itself create a sense of urgency?

https://www.oyez.org/cases/2020/20-18

What I find most interesting in this, is that Lange is 100% guilty AF of what the officer suspected—that is inarguable. The officer, by any account, acted in a way I think most people would if they were a cop, and ran into this situation. But, as a libertarian, you have to worry a little about cops just walking into a part of your home without a warrant.

Lange’s attorney’s argument isn’t ridiculous though, if there was a dangerous situation, such as he was driving drunk, it ended when he parked in the garage. So the danger was over. Now the question was whether a crime was committed, and how may the cop investigate it. Basically saying, once he parked, and the immediate threat was over, it’s time to get a fucking warrant.

Justice Gorsuch offered up some rather libertarian thoughts:

Neil Gorsuch

Good morning, counsel.

I think my colleagues have kind of pointed out two difficulties with your argument.

First, Justice Breyer points out that different states have different rules about what a felony is and what a misdemeanor is, and it would seem odd that the Constitution would—in its meaning, would depend upon the happenstance of positive state law.

And, second, we live in a world in which everything has been criminalized. And some professors have even opined that there’s not an American alive who hasn’t committed a felony under some state law. And in a world like that, why doesn’t it make sense to retreat back to the original meaning of the Fourth Amendment, which I’m going to oversimplify but generally says that you get to go into a home without a warrant if the officer sees a violent action or something that’s likely to be—lead to imminent violence? That’s vastly oversimplifying, but why isn’t that the right approach?

https://www.oyez.org/cases/2020/20-18

Justice Roberts wasn’t through questioning the limits of what officers can do. He went on to ask a philosophical question as to whether a cop who sees what they presume is a teenager drinking a beer outside with his bros, the budding alcoholic decides to skidaddle when the fuzz comes on scene, and then runs into the house before the rozzers get to him. Can the cop bust into the home to verify he is both a teen, and it was in fact alcohol he was drinking?

The heart of his argument being, how bad must the thing the person is doing be before a cop can justify warrantless entry. So he gave a very benign example of a misdemeanor being broken, an d a severe example of a cop busting down the door, hoping for the counselor to offer some sort of line where it’s OK, if they’re to argue it’s ever OK. We all know that a felony could give probable cause, but at the point the officer followed Lange, remember, all he saw was that he was rocking out, and playing his horn to the beat. Which, let’s be honest, is probably a fair sign the person is drunk, but still. Not obviously, so.

Justice Thomas was curious as to whether this “Meandering pursuit” as he called it, qualified as a “hot pursuit” under the law, which then invokes the hot pursuit rule, which would have allowed the officer to enter the home. But Counselor Rice was adamant that this still qualified as hot pursuit. When Justice Breyer also pushed her on this, she responded:

Amanda K. Rice

Hot pursuit only allows officers to enter a home, Justice Breyer, when the suspect makes the decision to bring a public encounter inside a home.

So a suspect can always avoid any intrusion into a home by deciding not to flee inside, particularly in these sorts of silly cases.

I think, as Chief Justice Roberts suggested, if the suspect nevertheless decides to flee into a home, those might be the very cases where something worse is actually afoot.

https://www.oyez.org/cases/2020/20-18

Curiously, she’s arguing Lange chose to flee, even if it was at a snail’s pace. But that assumes he knew the cop was there and chose not to stop (you’ll occasionally hear that referred to as mens rea, knowing you’re doing something wrong, or your state of mind), when it seems he was fucking oblivious because he was hammered like a cheap prostitute.

In a unanimous decision, SCOTUS ruled for Lange. Pursuit of a fleeing misdemeanor suspect doesn’t create exigent circumstances that allow an officer to enter someone’s home without a warrant.

Hear oral arguments and read about the case here.

https://www.oyez.org/cases/2020/20-18

SCOTUS For The Average Joe

Average Joe SCOTUS: BP P.L.C. v. Mayor and City Council of Baltimore

Leave a comment

Back in 2018, the mayor of Baltimore, being the ambitious fuck that he is, decided that he was going to make his stand on climate change, and sue the major oil companies for damages he claims are their fault, as a result of climate change.

Such issues like sea-level rise, heat waves, and a ass-ton of rain, in his mind, are all these horrible oil manufacturer’s fault.

Never mind the fact that the biggest producers of climate change are actually animal farms with cows belching like your mom after her seventh beer on a Friday night. When there’s politicking to be done, and points to be scored with how woke you are to the left, going after “big oil” will make you a hero.

(For the record, the Logical Libertarian wholeheartedly concurs climate change is real, and is largely due to man-made activities. I just think politicians like this are being attention hounds, and aren’t actually doing anything worthwhile to make positive change)

Anyway, Baltimore sued in state court (Maryland), and the oil companies were like, “Woah, asshole. A lot of our work is done via agreements with the federal government, and therefore, we want this shit heard in federal court, not your punk ass little state court. Is Maryland even a fucking state? I’ve taken shits that were bigger than Maryland.”

But Baltimore, knowing the federal government is likely much less prone to put up with this dipshit’s political grandstanding, is fighting tooth and nail to keep that shit in Maryland.

So now SCOTUS has to decide who gets to hear this shit. State courts, or federal, and effectively rule on when such cases can be removed to federal courts vs. staying in state courts. They don’t even give a fuck about the beef these two assholes have.

In a 7:1 decision, where Sotomayor dissented, and Alito abstained, SCOTUS sided with BP. A federal appellate court can review an issue from a district court, and decide whether it should be removed from state court or not.

Hear oral arguments and read about the case here

https://www.oyez.org/cases/2020/19-1189