All posts by Gary Nolan

Your humble contributor is an avid political enthusiast, science junkie, former small business owner, limited government, constitutionalist, and all around lover of liberty. I make every effort to use logic and reasoning, not hate, ad hominem attacks, nor logical fallacy arguments.
SCOTUS For The Average Joe

Average Joe SCOTUS: United States v. Cooley

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As you may know, in the United States, long ago, there were people who lived here when Europeans showed up. Long story short, we moved in, and largely kicked them out. However, being prone to feeling a little guilty when we fuck people over, we reserved some land for them to live on, and we call that land reservations.

Within those reservations, they have their own laws, and their own police to enforce them, and those rules are for Native Americans, and not non-Native people, like my lily white ass.

Joshua Cooley was also a non-native, driving through the reservation during the wee hours of the morning, with his ankle biter in tow. Apparently, he’d had one helluva night, because he was tired AF, and decided to pull over and rest a bit.

The area he was in, is notable for spotty mobile phone reception, and Crow Highway Safety Officer James Saylor was driving by and stopped to help him. It’s pretty common for us non-native folks to get lost and find themselves on a reservation. So they do their best to help us out.

When Saylor approached the vehicle and asked if he could help, he noticed Cooley’s kid in the truck, that Cooley himself seemed kinda out of it, and that he also seemed non-Native. As such, Indian law says Saylor should have called the white fuzz. But he didn’t. He kept asking Cooley questions.

As he was talking to him, he noticed a few semi-automatic rifles in the truck, and then Cooley got the “crazy eyes” going as if he was about to go ape shit. So Saylor drew his weapon and asked him to get out of the truck, placed him in the squad car, and called the normal rozzers. He then went on to search the truck, and found some meth. So now it’s a fucking party.

Surprisingly, the issue here, isn’t about a search and seizure as you might suspect, it’s about the fact that a native American cop should be allowed to detain a non-Native citizens within a reservation for crimes like drugs and illegal firearms and shit. If this were a regular cop off the reservation, all of this would have been a normal Tuesday night.

During opening questioning, Counsel for the United States argued:

Eric J. Feigin

I think it’s pretty clear from Strate and I believe Your Honor’s opinion in Atkinson that the authority we’re talking about today is meaningfully different. The main logic of not subjecting non-Indians to tribal adjudication or legislation is that they have no say in making those laws.

Here, this is about the enforcement of laws to which they’re — the non-Indians are indubitably subject.

Essentially saying, the cops can do their part, native or not. But if there ends up being charges and an attempt at prosecution, then that would be the duty of the US government, and not the reservation.

In a unanimous ruling, SCOTUS sided with the United States (the native Americans) against Cooley. They basically argued you can’t handcuff native cops like that. If something is up, you can’t expect them to do nothing, while they wait for non-native cops to show up. That’s dumb AF.

Of course the white dude might be tried and prosecuted off the reservation, but at least those cops can mitigate the threat in the mean time.

Hear oral arguments and read about the case here

https://www.oyez.org/cases/2020/19-1414

SCOTUS For The Average Joe

Average JOE SCOTUS: Cedar Point Nursery v Hassid

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First things first, I fucking hate labor unions. They are the wart on America’s asshole. This case has done nothing to change my opinion of them. Nine years ago, I wrote about why I think they shouldn’t even be legal here. It’s a little dated, and I feel my writing and logical arguments are probably better know, so I should rewrite that shit. But anyway, moving on.

We all know those Californians loves them some fucking labor unions, and they have pretty favorable laws regarding those cunts (I use cunts in the British or Aussie way as a general pejorative, not the American way as a sexist attack on women. So back the fuck up off me with that noise). Well, Cedar Point Nursery owns a strawberry farm in California, and the United Farm Worker (UFW) cunts showed up on their land with bullhorns and shit, convincing some workers to come off their jobs and join protests, while most just kept on working. They are supposed to give notice ahead of the time, to let the site prepare for them, but they didn’t.

The issue here though, is that California law forces companies to allow such unions on to their property to talk to their employees, which is fucking bullshit, in a country that is supposed to have property rights, but I digress.

Cedar Point is challenging such laws under the fifth amendment, considering it an unlawful takings of property. Think of it this way, if the government can basically just tell the property owner they have no right to control who comes on their property, and can’t even charge the people money who come onto their property, the government is effectively taking control of their property.

Counsel for Cedar Point opened with:

Joshua P. Thompson

Thank you, Mr. Chief Justice, and may it please the Court: An access easement that takes the right to enter, occupy, and use another’s private property effects a per se physical taking under the Fifth Amendment.

Any time limitations placed on access go towards the just compensation due, not whether a taking has occurred. The access regulation at issue in this case authorizes an easement on the property of Petitioners for the benefit of union organizers. Under the terms of the Access Regulation, organizers may occupy the businesses’ property for three hours each day, 120 days each year. This Court should hold that the taking of this easement violates the Fifth Amendment because it effects a physical taking without compensation, and the Court should so hold for two reasons. First, the appropriation of a real property interest triggers a categorical duty to compensate.

The Access Regulation authorizes the taking of a real property interest in the form of a continual right to occupy and use Petitioners’ property. And, second, at a more fundamental level, the Access Regulation denies Petitioners the right to exclude union organizers from their property.

Such an infringement on the most fundamental property right merits per se treatment. The Ninth Circuit, however, took a different tack.

It demoted the right to exclude to just another stick in the bundle and would give per se treatment only to those rare easements that authorize 24/7 occupation. Not even the Board supports that extreme rule.

But the Board offers no basis, much less a principled one, on which to distinguish access easements that merit per se treatment from those that don’t. If the government wants to take an access easement over private property, it has to pay for it.

Failure to pay just compensation violates the Takings Clause. I welcome the Court’s questions.

The Cedar Point people acknowledge that historically, such workers lived on the land, and thus, were really never able to be exposed to unions and shit, since they would never leave the property.

But now we have shit like internet and cars, and it’s pretty fucking easy for people to get info like this. Plus, most of those workers don’t live on the property anymore, presumably because others laws about being a landlord are a pain in the ass these days.

Not that I give a fuck about the California Board’s rules that support the union, but their argument is like, “Hey, we only come before and after work, and during lunch. That’s fair, isn’t it?”

Justice Barrett seemed to be willing to accept Cedar Point’s argument as absolute, when she opened this question at them.

So let me ask you this: What if California had a regulation that permitted union organizers to go onto the property of your clients one hour a day, one day a year.

Is that a taking subject to the per se rule?

Counsel agreed.

However, counsel had previously agreed that if people were living on the property, and didn’t have access to this info otherwise, he could see where such a rule allowing them onto the property could be an exception to a takings clause.  Barrett’s question was effectively saying, “I don’t even see how you allow that if you’re argument is true.”

Hard to tell if she believes in that absolutism, but if she does, I actually agree with her. Fuck those union pricks.

Once the California Board’s side stepped up, Justice Thomas had an interesting line of questioning.

Clarence Thomas

I’m quite interested in how related the inspection or the opportunity to be on private property has to do with the—how related does it have to be to the business operation. For example, could you have the exact same requirement, except during non-business hours for the property to be available for training of the — of the National Guard, for example, or the state police? Since it’s — since it’s open property, just simply say for three hours a day, not more than 120 days a year, but certainly not to interfere with the business, the state police could train there?

Counsel for California was of the opinion, this was very different, and would in fact be a violation of the property owner’s rights. But Thomas, seemingly unimpressed with that load of horse shit, pressed him that if the cops can’t come and train there after hours, why can the union come and agitate their workers after business hours.

Counsel salvaged himself by saying that the union workers are there on matters related to the work being done there, and to assist the workers, as opposed to the cops just using his land for their own personal gain.

In a 6:3 entirely partisan ruling, the conservative justices ruled in favor of Cedar Point Nursery, telling the labor unions to go eat a bag of dicks. This decision makes me want to cheer loudly. Fuck those labor union pricks in the ass. Government cannot force an employer to allow union assholes onto their property. Now fuck off with that noise.

I’m not even going to dignify the minority’s opinions with an explanation. Unions don’t deserve an ounce of such respect. It’s extortion and racketeering by any other name. Good riddance.

Hear oral arguments and read about the case here.

https://www.oyez.org/cases/2020/20-107

Drug Use, Libertarianism, SCOTUS For The Average Joe

Average Joe SCOTUS: Terry v. United States

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Eons ago, back in 2008, Tarahrick Terry, some random fucking crackhead, got his dumb ass busted with some crack—about 4 grams. To put that in perspective, a nickel is 5 grams. So basically, it was mountains of the stuff (sarcasm).

Because we have many drug laws written in an era that racism was still quite prevalent in government, crack cocaine, the drug of choice for the black community back then (it’s cheaper than regular cocaine), carries a much more severe penalty than regular cocaine, the drug white people tended to use, that is more expensive. At the time, it was a 100:1 ratio, which is fucking crazy. And while some people throw around racism pretty willy nilly, this law was in fact passed with intent to control the black population at the heart of it.

Terry was sent up the pokey for 188 months for his indiscretion! Over fifteen fucking years, for having some recreational crack on him. Fucking crazy!

In more modern times, this bill came to be a shining example of systemic racism, and in 2010, then president Barack Obama signed a bill reducing the 100:1 disparity down to 18:1. Because apparently the non-racist 1:1 number wasn’t deemed proper, a little racism is still apparently important to keep the wheels of justice turning.

Terry, seeing an opportunity to reduce his sentence by making the new standard retroactive, challenged his sentence in court. He was like, “Y’all motherfuckers knew this was wrong, and some racist bullshit, which is why you passed this new fucking law. I get it, I’m guilty and broke your dumb fucking laws, but my sentence is fucked up and you need to reduce it.”

In 2018, congress and Donald Trump passed the First Step Act, making sentencing reforms retroactive, allowing past offenders to be resentenced. Because you know, Donald Trump was a total bigot and hated black people (sarcasm). While I was no fan of Trump, I think the argument he was akin to some KKK person, was absolute nonsense, and while he was a grade A asshole, he was painted out to be an even bigger asshole than he really was. But anyway, moving on.

So here’s where it gets kinda silly. Aside from the 100:1 disparity, they also adjusted the tiers. The tiers were tier three = 0-5 grams, tier two = 5-50 grams, and tier one = 50+. The more you had, the bigger the sentence you got, since it would seem you were a dealer, not a user.

In the First Step Act, congress made tier one 280 grams and above, and tier two 28-280 grams. One would think then, that tier three was now 0-28 grams, right? RIGHT? Well, those no math doing motherfuckers didn’t fucking adjust tier three. It’s still 0-5 grams. So apparently, if you have between 5 and 28, you hit Bingo and and you’re free to go?

Now, here’s where Terry gets fucked. The First Step Act allowed for people whose sentences were modified by the law, to get resentenced. But as I just mentioned, tier three wasn’t fucking modified. So the courts were like, “Fuck you Terry, you aren’t part of this shit. Rot in jail, motherfucker.”

In a unanimous decision, the court ruled against Terry, and probably not uncoincidentally, the court’s only black justice, Clarence Thomas, wrote the opinion.

At first glance, one might think this is the court supporting systemic racism to it’s core. However, knowing the court still has three left wing justices who are the last people to support racism, it’s clear they were abiding by the text of the law, and effectively telling congress it’s their job to fucking fix this. That 5-28 golden spot is blatantly there for all to see, and it’s up to them to amend the law to cover that gap as they should have the first time they wrote it.

In their concurrence, they make clear that according to the law, if Terry were busted today for the same thing, he’d get the same sentence. So even if they overturn this, otherwise will befall the same fate. In her opinion, Sotomayor, made clear that the disparity between crack and cocaine was ridiculous, and was a clearly racist law. However, that was not the question they were faced. Hopefully, a new congress and a new president will see fit to fix this nonsense once and for all.

Read about the case and/or hear oral arguments at Oyez here or at SCOTUSBlog here.

SCOTUS For The Average Joe

Average Joe SCOTUS: PennEast Pipeline Co. v. New Jersey

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Congress passed the Natural Gas Act (NGA) which permits companies to use the federal government’s power of eminent domain, to make people let them put their pipe on their land.

So PennEast wanted to lay down 116 miles worth of pipe that would meander through Pennsylvania and New Jersey. They submitted their paperwork in 2014 with the Federal Energy Regulatory Commision (FERC). In 2018, after all the reviews and shit, they were granted a “certificate of public convenience and necessity” which basically gave them permission to go forth and conquer.

However, the whiny bitches in New Jersey that apparently want their people to freeze to death in winter, opposed the pipeline in their state.

But with permit in hand, PennEast started all their eminent domain suits against 42 properties owned by the state of New Jersey. Needless to say, New Jersey was like, “WTF?”

Going the creative route, New Jersey was like, “11th Amendment, motherfuckers.” You can’t sue a fucking state in federal court unless you’re the federal government yourself…which you ain’t. We have sovereign immunity, or whatever the fuck you call that shit.”

But a district court was like, “PennEast was granted these powers by the federal government, and therefore they are an agency of the federal government for this purpose, therefore they can sue away. So STFU, New Jersey.”

New Jersey wasn’t done though. They took their same shit argument to the 3rd circuit court of appeals and tried again. PennEast wasn’t going down without a fight, though. They were like, “Why the fuck would congress pass the NGA with that provision, if they didn’t explicitly intend to do this very fucking thing you dumb fucks.”

The 3rd circuit was less impressed with PennEast’s argument, and didn’t apparently give a fuck what congress intended—congress doesn’t get to vote away sovereign immunity.

In a 5:4 non-partisan vote, where Gorsuch, Thomas, Kagan, and Barrett dissented, PennEast came out gloriously victorious. That the NGA does indeed give the federal government the right to delegate the authority to condemn all rights-of-way, whether it’s owned by a person, or a state.

The dissenters argued that Congress’ power to take a state’s sovereign immunity away is quite limited, and there’s no reason that private condemnations should be a justifiable reason for this.

SCOTUS For The Average Joe

Average Joe SCOTUS: Mahanoy Area School District v. B.L.

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Today, we have a pretty straight forward 1st amendment issue between some gustapo scumbags at Mahanoy Area High School (MAHS) and a student Brandi Levy.

Back in 1969, SCOTUS ruled in Tinker v. Des Moines Independent Community School District to allow schools to regulate the speech of students if that speech might disrupt the course of business of teaching the other students.

WTF does that have to do with Brandi’s issues today? Well, you see Brandi tried out for the varsity cheerleading team, and ended up only making the reserve squad. Being the entitled little piece of shit every kid her age is, she decided it was unfair, so she went on Snap Chat and wrote, “Fuck school fuck softball fuck cheer fuck everything.”

To be clear, I know I colorfully make up things people didn’t actually say on Average Joe SCOTUS, but this is literally what she wrote.

Anyway, based on the 1969 ruling above, the school suspended her ass, since over 250 students saw what she wrote, and it was now the talk of the town.

So the question is pretty simple, can shit students say outside of school on their own time and own social media, be used against them in school? Can a school suspend a student for what they write on their own social media?

Counsel for the school attempted to argue that Brandi berated her teachers and shit with this speech, to which Justice Sotomayor quickly responded, “We can quibble about that.” It’s pretty fucking obvious, since she didn’t tag anyone, or call anyone’s attention to her speech, they were shown it by another party, that she didn’t fucking berate anyone. She vented on social media.

Yeah, I’m biased. I think the school couldn’t be more out of line here, and their arguments are bullshit.

Justice Kavanaugh invoked the great one, Michael Jordan in an impassioned speech/question.

Brett M. Kavanaugh

I want to focus on the facts of this case a bit and my reaction to it.

As you say and I think helpful for you, the context here is a team and a coach, not the school more generally.

But, as a judge and maybe as a coach and a parent too, it seems like maybe a bit of overreaction by the coach. So my reaction when I read this, she’s competitive, she cares, she blew off steam like millions of other kids have when they’re disappointed about being cut from the high school team or not being in the starting lineup or not making all league. And just by way of comparison about — and to show how much it means to people, you know, arguably, the greatest basketball player of all time is inducted into the Hall of Fame in 2009 and gives a speech, and what does he talk about? He talks about getting cut as a sophomore from the varsity team.

And he wasn’t joking.

He was critical 30 years later.

It still bothered him. And I think that’s just emblematic of how much it means to kids to make a high school team.

It is so important to their lives, and coaches sweat the cuts, and it guts coaches to have to cut a kid who’s on the bubble, and — and good coaches understand the importance and they understand the emotions. So maybe what bothers me when I read all this is that it didn’t seem like the punishment was tailored to the offense given what I just said about how important it is and you know how much it means to the kids.

I mean, a year’s suspension from the team just seems excessive to me. But how does that fit into the First Amendment doctrine or does it fit in at all in a case like this?

Lisa S. Blatt

Well, it — it — I don’t think it does because the — it’s analytically distinct whether the coach could act at all versus due process considerations about the extent of the punishment and I think the rule — but, I mean — and also, this is the — the remand point, the district lost on this issue and the Third Circuit did not go on this rationale because there was evidence of the — the team cohesion. But I — I think, you know, whether — I understand that Michael Jordan was upset, but, at some point, presumably, he was respectful to his coaches, and there’s a line that coaches always have to — coaches have to know their team and know what — what works.

They have to act in the best interest of all teammates, team — team participants.

Amicus counsel for the United States in favor of the school, when confronted by Justice Thomas about the one year suspension seeming a pretty heavy-handed punishment for some frustrated speech on Snapchat with a few F-bombs, counsel creatively tried to argue, “Hey man, it’s just a ban from cheerleading, not the whole fucking school. What’s the big deal, guy?”

Opposing counsel, when pressed by Justice Gorsuch conceded some ground when he suggested that if the school had written prior policy telling students this wasn’t allowed, and if they did so, they could be disciplined, they’d have been OK with this. His argument is that the student had no reason to think this would result in disciplinary action, and therefore wouldn’t have known she should refrain from doing it or else. A principle pretty similar to the “Constitutionally vague” principle often used to strike down a law by SCOTUS.

In an 8:1 decision where only justice Thomas dissented, SCOTUS ruled in favor of miss Levy. They made it clear that while a school can regulate speech on campus, students don’t just lose their first amendment rights when they’re off campus. While they conceded if off-campus speech disrupted school activities and such, the school could potentially act, miss Levy didn’t do any of that shit. She just vented on social media.

Hear oral arguments and/or read about the case here.

https://www.oyez.org/cases/2020/20-255

SCOTUS For The Average Joe

Average JOE SCOTUS: United States v. Palomar-Santiago

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This is a pretty straight forward case about Mexican Refugio Palomar-Santiago, who legally came to the US and was granted permanent residence in 1990. A year later, he was apparently so excited to be an American, he got drunk as a skunk, and jumped behind the wheel of a car, drove like shit, and got popped for DUI.

In California at the time, a DUI was considered a violent crime, and as such, was a deportable offense. So the US told Refugio he could fuck right off back to Mexico.

Since then, three years later, the Ninth Circuit decided in a separate case, that calling a DUI a crime of violence is fucking stupid. So they quashed that law, and made it retroactive so that anyone prosecuted under that law, would no longer be deemed a violent criminal. In 2004, SCOTUS also came to the decision in Leocal v. Ashcroft, that this was bullshit.

Refugio was like, “Sweet” and made his drunk ass back to the US, but this time he came in illegally. He was eventually busted, so he was like, “Hey assholes, you decided the reason you kicked me out the first time was bullshit, so I have a right to be here. I should’ve never been kicked out the first fucking time. You’re just lucky I’m not asking you to cover my travel expenses.”

But the government was like, “Listen fuckhead. There are rules in coming back into the US. You don’t just get to violate them because the reason we kicked you out has been rendered invalid. You still gotta go through the proper channels, or you’re here illegally.”

Their opening argument points out that Refugio had options available to him for judicial review and shit, but he didn’t pass go, he just collected $200.

In a unanimous decision, SCOTUS sided with the US, and told Palomar-Santiago to haul his ass back to Mexico. Had he went through the proper channels to get his removal order invalidated, he’d be fine. But he broke the rules coming back, and that shit ain’t allowed.

Hear audio from the case, or read about it here.

https://www.oyez.org/cases/2020/20-437

SCOTUS For The Average Joe

Average Joe SCOTUS: HollyFrontier Cheyenne Refining LLC v. Renewable Fuels Association

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In it’s desire to combat climate change and shit, congress passed the Energy Policy Act in 2005, which added some new guidelines to the Clean Air Act. The idea was to incentivize companies to move from fossil fuels to renewables and shit.

One of the measures was to push oil and gas refineries to use blends, such as methanols at increasing levels, so it’s more plant based fuel, and less petroleum based fuel.

Within this legislation, they allowed for smaller refineries to have exemptions if complying with their rules, would cause serious problems for them, disproportionate to the impact it might have on larger companies, which can afford to make such changes easier.

So the question the court is being asked, does this law indicate that you have to have a continuous string of hardships, year after year, to keep qualifying for this extension? Or is it that once you jump that hurdle, and are deemed able to comply, are you barred from asking for an extension the following year.

As SCOTUS Blog points out, this hinges on the definition of the word extension. Because the petitioner is saying, they can apply for an extension at any time, but the respondent is saying, “Hey look, how can you extend something that isn’t currently happening?”

During oral arguments, Justice Kagan brought up a compelling argument for the petitioner:

Elena Kagan

Good morning, Mr. Keisler.

In thinking about the ordinary meaning of this word, “extension,” I guess I’m wondering if you would comment on this hypothetical. Suppose that I rented an apartment five years ago and I rented it for a year, and then I decided to give it up, and five years later I’m now really tired of where I’m living now and I want to move back, and I call the landlord and say: I’d like an extension of my lease.

What would the landlord say?

Peter D. Keisler

I think the landlord would scratch her head and think that’s a very strange context in which to be using the word “extension.” I agree with that. And that, I think, is like the government’s examples of the hotel guests or the people parking their cars.

I think those may have a different connotation in part because they involve rights, the physical occupation, and because you go away and you then come back, and we think of that as discontinuous. And that’s why we think the much more apt context here is how Congress has used the word in the context of government benefits and programs that existed, lapsed, and resumed.

In a 6:3 decision, and weirdly sexually divided, where Barrett, Sotomayor, and Kagan dissented, SCOTUS ruled in favor of HollyFrontier. That they can indeed file for extension, even if there was a time when they didn’t need said exception. Since the law didn’t include words like “successive” or “consecutive” it kinda leaves the door open that they don’t need to be year after year. A simple hardship can trigger an exception.

Hear oral arguments or read about the case here.

https://www.oyez.org/cases/2020/20-472