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SCOTUS For The Average Joe

Average Joe SCOTUS: Yellen v. Confederated Tribes of the Chehalis Reservation

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You like drama? Well, here’s some drama. Back in 1971, trying to do something to be nice to native Americans, Congress enacted the Alaska Native Claims Settlement Act (ANCSA). This law created Alaska Native Corporations (ANCs). The ANCs are for-profit companies, within the native American community, that exist to help native Americans. But, they are not a tribe with a recognized government.

In 1975, congress created the Indian Self-Determination and Education Assistance Act (ISDA). The purpose of this, was to give power back to the Native American’s to manage their own fucking affairs, instead of Uncle Sam doing it for them. Since Native Americans and Uncle Sam have a troubled history, seems like a nice thing to do.

Within the ISDA, it defines an “Indian tribe” as “any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.”

So then along comes COVID, and it’s myriad of government actions to help people out, including native Americans. Within that law, they set aside money to help any Native Americans as defined in the ISDA.

In 1994, congress passed a List Act, forcing the Bureau of Indian Affairs to publish an annual list of tribes eligible for special benefits set aside for native Americans.

Here’s the drama part. ANCs aren’t in that definition above. You could creatively argue they are, but the text doesn’t really say they are.

So, since it’s a limited resource, all the other native tribes are like, “Hey motherfucker, the ANCs are not fucking tribes, and therefore they shouldn’t get a slice of our pie. They’re for-profit companies who are already making bank. They don’t need this money, but we do!” Basically, they’ve got beef with ANCs because they’re corporations to help the native American tribes, not the tribes themselves.

But the ANCs are like, “Dude, seriously? This is relief meant for native Americans, we’re native Americans, and the text is pretty easy to argue it includes us, even if we’re not specifically named. So go fuck yourself.”

A district court sided with the ANCs, despite them traditionally not being considered a tribe, since the text seems to pretty clearly include them, even if not explicitly listed. But then the DC Court of Appeals was like, “the text is the text motherfuckers. If congress had wanted to help the ANCs in the Cares act, they should have fucking mentioned them specifically.

Counsel for the government, who wants to help the ANCs, was like, “In that definition above, they say ” including any Alaska Native village or regional or village corporation,” and then go on to say, ” recognized as eligible for the special programs.” We agree that the ANCs aren’t typically recognized as tribes. But if we’re to believe these dumb cunts across the aisle, they’re saying congress included us in the first part of that definition, only to exclude us in the last part of it? Give me a fucking break! How fucking dumb to you have to be to come to that conclusion?”

During Breyer’s questions, he struggled to understand how ANCs were included, since they typically are not considered tribes. But counsel Guarnieri pointed out that in other laws, when congress has mentioned the ISDA definition, it has went on to exclude the the ANCs, which only makes sense if they believe the definition included them by itself. Otherwise, why exclude them if they’re not included in the first place? Justice Breyer was like, “thanks bro, makes total sense now.”

Justice Sotomayor decided to have a completely separate issue. Apparently worried about rocking the boat, she asked:

How do we rule in a narrow way that affects only the CARES Act and not the many other acts that are involved where ISDA mentioned the Johnson-O’Malley Act, the Snyder Act, which I think is now the Indian Health Improvement Act, and the Transfer Act?

Basically she was like, “If we side with you, this will affect like a million other laws and shit, because we’ll be redefining what the fuck qualifies as an Indian tribe for the purposes of all federal legislation.

In a non-partisan 6:3 decision, SCOTUS ruled in favor of Yellen (Secretary of the Treasury). As such, the ANCs are Indian Tribes under ISDA, and entitled to those benefits.

Hear oral arguments or read about the case here.

https://www.oyez.org/cases/2020/20-543

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: 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: 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: 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

SCOTUS For The Average Joe

Average Joe SCOTUS: Guam v. United States

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As you may know, during the Spanish-American War, the United States busted Spain’s ass, and took Guam for their troubles. In 1950, they gave Guam power to rule themselves, while still remaining a territory of the United States.

In 1940, the US needed a place to dump military waste, like old ammo and even some hazardous chemical warfare shit like DDT and Agent Orange, using that dump through both the Korean and Vietnam wars.

It wasn’t a great dump, though, and it leaked that shit into the Pacific Ocean, prompting the EPA to declare it a serious priority to address in 1983 after passing the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). CERCLA was designed to deal with hazardous wastes at dump sites.

Five years later, the government said the Navy was the major asshole causing all of this, but because Guam ruled itself, the EPA told Guam to come up with a solution.

But Guam was like, “You assholes admit the Navy caused this, and we don’t rule the fucking Navy, you do. So the Navy should figure this shit out and clean it up. Why the fuck would we be on the hook for this?”

in 2011 a district court appointed some fucktwit who closed Ordot, the dump in question, and estimated it’d be like $160M to clean that mess up.

At one point during questioning of Guam’s counsel Garre, Justice Sotomayor went into full disrespect mode, interrupting counsel before he could answer most of the questions posed to him, and even at the end when he was trying to answer, cutting him off with a rather terse “Counsel, please!” I believe she was out of time, but still, it was incredibly unbecoming.

However, she must’ve had a change of heart, because her along with the other eight justices sided with Guam. They can sue the federal government to clean that shit up. CERCLA clearly has language for liability, and the Navy is clearly liable. Enough said.

Hear oral arguments or read about the case here

https://www.oyez.org/cases/2020/20-382