Bear Pit: now the sole domicile of politics at LuLa

[faberryman]

The fact is they've gotten along fine for 150 years or so with 9 justices.  Extra justices won't matter as far as case load.  That's just an excuse Democrats are using to pack the court.

So let's say the court decides 100 cases a year. Someone has to write the opinions. So the chief justice divvies up the opinions among the 9 justices. That's roughly 11 each. If we had 13 justices, that would be roughly 8 each. So everyone would get to go home a little earlier. Of course, that only accounts for the main opinion. Lots of times justices write concurring and dissenting opinions, because the law is not black and white and reasonable minds can differ. I know you don't believe that reasonable minds can differ about simple things like constitutional law. You think it is all politics. The other alternative is that with 13 justices, the court could take on 143 cases and still everyone would get assigned 11 cases. I know caseload doesn't matter to you. You are not the one that has to write the opinions. I thank God for that.

I am not expressing an opinion about whether considering caseload is a good or bad reason to expand the court. What I am suggesting is that instead of just blurting out the first thing that pops into your head, you stop and think things though. Then we wouldn't have to read nonsense like this:

Extra justices won't matter as far as case load.

Here is something else to consider. Remember the four Kraken lawsuits that Sidney Powell filed, and that looney tunes case the Texas AG filed, all to overturn the election. The Supreme Court elected not to consider those cases. Given your theory of it's all politics when deciding Supreme Court cases, why didn't the conservative majority take the cases and toss out the election? Because conservative justices are saints, and if the shoe had been on the other foot that's exactly what the liberal justices would have done?

[Alan Klein]

No. A justice does not have to "hear the case to vote". If a justice has been ill or absent, they can decide the case and vote based on the written record.

When I refer to hearing the case, I meant more than just the one or two hours when verbal arguments are made in person by the litigants to the court if that's what you meant about reading the written transcript.  My point is they have to be involved in the whole process. Discussions and negotiations go on for months among the justices. If a justice was out sick for two months and wasn;t part of the ongoing discussions, they won't vote or shouldn't vote.  After all, there is no written record of personal discussions among the justices and clerks.  They discuss these things over lunch and one on one meetings.  Justices "sell" their arguments to the other justices.  If a justice wasn't around to be involved, they don't vote, or shouldn't.

Why didn't Barrett, the latest justice,  vote on some cases because she came late if she could have read the record?   Where are the lines drawn when it's acceptable to vote even though you haven't been totally or at least heavily involved?  Is this arbitrary or is there a formula?

[Alan Klein]

So let's say the court decides 100 cases a year. Someone has to write the opinions. So the chief justice divvies up the opinions among the 9 justices. That's roughly 11 each. If we had 13 justices, that would be roughly 8 each. So everyone would get to go home a little earlier. Of course, that only accounts for the main opinion. Lots of times justices write concurring and dissenting opinions, because the law is not black and white and reasonable minds can differ. I know you don't believe that reasonable minds can differ about simple things like constitutional law. You think it is all politics. The other alternative is that with 13 justices, the court could take on 143 cases and still everyone would get assigned 11 cases. I know caseload doesn't matter to you. You are not the one that has to write the opinions. I thank God for that.

I am not expressing an opinion about whether considering caseload is a good or bad reason to expand the court. What I am suggesting is that instead of just blurting out the first thing that pops into your head, you stop and think things though. Then we wouldn't have to read nonsense like this:

Here is something else to consider. Remember the four Kraken lawsuits that Sidney Powell filed, and that looney tunes case the Texas AG filed, all to overturn the election. The Supreme Court elected not to consider those cases. Given your theory of it's all politics when deciding Supreme Court cases, why didn't the conservative majority take the cases and toss out the election? Because conservative justices are saints, and if the shoe had been on the other foot that's exactly what the liberal justices would have done?

The only people complaining about caseloads are you and the democrats.  Justices aren't complain about it.  They each have many many law clerks who do most of the grunt work.  The court has stayed at 9 justices for 150 years, seemingly keeping up with their jobs.  They seem to be handling the work.  Justice Ginsberg, who was busy treating herself for cancer at an advanced age, never missed any cases except possibly at the end of her life.   

The only thing the court has said recently about this is that two of the justices have said that adding more justices would be a bad thing to do.  The justices themselves are opposed to packing.

I think the justices are smarter than you.

[jeremyrh]

Re: Kensington Ave thread

Another potentially interesting thread spoiled by Klein.

[faberryman]

The only people complaining about caseloads are you and the democrats.

You were so busy jumping to your keyboard to blurt out the first thing that popped into your head, you didn't read my post.

I am not expressing an opinion about whether considering caseload is a good or bad reason to expand the court. What I am suggesting is that instead of just blurting out the first thing that pops into your head, you stop and think things though.

[Alan Klein]

You were so busy jumping to your keyboard to blurt out the first thing that popped into your head, you didn't read my post.

Frank, you spent 6 lines expressing your opinion about caseloads.  Then you said you're not expressing your opinion.  Huh?

Let me copy your whole post to remind you.

So let's say the court decides 100 cases a year. Someone has to write the opinions. So the chief justice divvies up the opinions among the 9 justices. That's roughly 11 each. If we had 13 justices, that would be roughly 8 each. So everyone would get to go home a little earlier. Of course, that only accounts for the main opinion. Lots of times justices write concurring and dissenting opinions, because the law is not black and white and reasonable minds can differ. I know you don't believe that reasonable minds can differ about simple things like constitutional law. You think it is all politics. The other alternative is that with 13 justices, the court could take on 143 cases and still everyone would get assigned 11 cases. I know caseload doesn't matter to you. You are not the one that has to write the opinions. I thank God for that.

I am not expressing an opinion about whether considering caseload is a good or bad reason to expand the court. What I am suggesting is that instead of just blurting out the first thing that pops into your head, you stop and think things though. Then we wouldn't have to read nonsense like this:

Here is something else to consider. Remember the four Kraken lawsuits that Sidney Powell filed, and that looney tunes case the Texas AG filed, all to overturn the election. The Supreme Court elected not to consider those cases. Given your theory of it's all politics when deciding Supreme Court cases, why didn't the conservative majority take the cases and toss out the election? Because conservative justices are saints, and if the shoe had been on the other foot that's exactly what the liberal justices would have done?

[faberryman]

Frank, you spent 6 lines expressing your opinion about caseloads.  Then you said you're not expressing your opinion.  Huh?

I spent six lines describing a hypothetical set of facts for your consideration. The opening three words I used "So let's say" are the dead giveaway that I am proffering a hypothetical. So that you would not make the unwarranted assumption that I was advocating expanding the court for caseload reasons, I specifically stated that I was not expressing an opinion one way or the other. Unfortunately, it was not enough. Notwithstanding that I told you I was not expressing an opinion, you went ahead and assumed I was expressing an opinion anyway, and then ducked addressing the hypothetical fact situation because that it what you do. And then you ducked the next set of questions I posed as well.

Here is something else to consider. Remember the four Kraken lawsuits that Sidney Powell filed, and that looney tunes case the Texas AG filed, all to overturn the election. The Supreme Court elected not to consider those cases. Given your theory of it's all politics when deciding Supreme Court cases, why didn't the conservative majority take the cases and toss out the election? Because conservative justices are saints, and if the shoe had been on the other foot that's exactly what the liberal justices would have done?

[Alan Klein]

I spent six lines describing a hypothectical set of facts for your consideration. So that you would not make the unwarranted assumption that I was advocating expanding the court for caseload reasons, I specifically stated that I was not expressing an opinion one way or the other. Unfortunatedly, it was not enough. Notwithstanding that I told you I was not expressing an opinion, you went ahead and assumed it anyway, and then ducked addressing the hypothetical fact situation because that it what you do.

A "hypothetical set of facts for your consideration" seems like a good definition for an opinion.  But I could be wrong, I suppose.  And I answered it.

[faberryman]

A "hypothetical set of facts for your consideration" seems like a good definition for an opinion.  But I could be wrong, I suppose.  And I answered it.

In what language is the definition of "opinion": "a hypothetical set of facts for your consideration"?

And you didn't respond to any of the questions raised in my caseload hypothetical, or this:

Here is something else to consider. Remember the four Kraken lawsuits that Sidney Powell filed, and that looney tunes case the Texas AG filed, all to overturn the election. The Supreme Court elected not to consider those cases. Given your theory of it's all politics when deciding Supreme Court cases, why didn't the conservative majority take the cases and toss out the election? Because conservative justices are saints, and if the shoe had been on the other foot that's exactly what the liberal justices would have done?

[Alan Klein]

In what language is the definition of "opinion": "a hypothetical set of facts for your consideration"?

And you didn't respond to any of the questions raised in my caseload hypothetical, or this:
Quote from: faberryman on Today at 08:57:13 am
Here is something else to consider. Remember the four Kraken lawsuits that Sidney Powell filed, and that looney tunes case the Texas AG filed, all to overturn the election. The Supreme Court elected not to consider those cases. Given your theory of it's all politics when deciding Supreme Court cases, why didn't the conservative majority take the cases and toss out the election? Because conservative justices are saints, and if the shoe had been on the other foot that's exactly what the liberal justices would have done?

I never said that it's all politics.  I want a court that defers to what the constitution says, as conservatives tend to believe more than liberals, rather than using "current thinking" about an issue. That's political.  Regarding the Trump lawsuits, I assume the Supreme Court didn't take the case because there were no constitutional issues to decide, no requirement for judicial review. Facts are not decided at the Supreme Court level.  That's left to the trial court.

[Alan Klein]

I'm getting bored with the court.  I think we beat it to death.  Here's another important issue.  Hopefully, America and Russia can put this to rest and start getting on to dealing with more important issues between our two countries.

Russia Will Expel Diplomats in Retaliation for U.S. Sanctions
The Russian government announced the expulsion of 10 diplomats and a travel ban for some U.S. officials in a response to sanctions.
https://www.nytimes.com/2021/04/16/world/europe/russia-expels-diplomats-sanctions.html

[TechTalk]

When I refer to hearing the case, I meant more than just the one or two hours when verbal arguments are made in person by the litigants to the court if that's what you meant about reading the written transcript.

No. I didn't say "written transcript" or refer to oral argument in what I wrote. I said "written record". The written record would include the many legal briefs and filings from the litigants presenting their arguments and counterarguments; citations of case precedents and other legal references; the numerous amicus curiae briefs submitted by external parties; and of course, all of the court records and filings from all of the lower courts that have previously ruled on a case

Many Supreme Court opinions, orders, and decisions are made without ever having oral argument presented, based solely on the written record. The court receives thousands of petitions to consider cases every year (petitions for a writ of certiorari) and makes decisions on whether to accept or reject those petitions based solely on written records. Those are reviewed by the very busy law clerks working for them, who then give summary memorandums and recommendations to the justices for review, conference, vote, and decision.

It's actually in those petition decisions, which the justices make, that the vast majority of their recusals occur. The Supreme Court justices recuse themselves well over a hundred times per year on petitions to the court. Many of those are due to some past association with a case from their time before being seated on the court.

[Alan Klein]

No. I didn't say "written transcript" or refer to oral argument in what I wrote. I said "written record". The written record would include the many legal briefs and filings from the litigants presenting their arguments and counterarguments; citations of case precedents and other legal references; the numerous amicus curiae briefs submitted by external parties; and of course, all of the court records and filings from all of the lower courts that have previously ruled on a case

Many Supreme Court opinions, orders, and decisions are made without ever having oral argument presented, based solely on the written record. The court receives thousands of petitions to consider cases every year (petitions for a writ of certiorari) and makes decisions on whether to accept or reject those petitions based solely on written records. Those are reviewed by the very busy law clerks working for them, who then give summary memorandums and recommendations to the justices for review, conference, vote, and decision.

It's actually in those petition decisions, which the justices make, that the vast majority of their recusals occur. The Supreme Court justices recuse themselves well over a hundred times per year on petitions to the court. Many of those are due to some past association with a case from their time before being seated on the court.

Thanks for the description.  Why didn't Barrett read on the case and make a decision on it?  At what point do absences due to illness reach a point when the justice backs out of making a decision?  Are there standards that the justices are to follow promulgated by the Supreme Court's own rules?   

[TechTalk]

Why didn't Barrett, the latest justice,  vote on some cases because she came late if she could have read the record?

The Supreme Court's term begins on the first Monday in October. Barrett was sworn in on October 27th. The court issued its first orders for the current term on November 2nd for two cases which were decided without argument. Both were decided in a 7-1 vote with Thomas dissenting. Barrett gave a blanket recusal on those cases because she hadn't had time to "fully review the filings".

The next order they issued was on November 25th in which she did participate. It was also decided without oral argument, but by a 5-4 vote.

[Alan Klein]

The Supreme Court's term begins on the first Monday in October. Barrett was sworn in on October 27th. The court issued its first orders for the current term on November 2nd for two cases which were decided without argument. Both were decided in a 7-1 vote with Thomas dissenting. Barrett gave a blanket recusal on those cases because she hadn't had time to "fully review the filings". The next order they issued was on November 25th in which she did participate. It was also decided without oral argument, but by a 5-4 vote.

Thanks for that info.  Do you know if the Nov 25 case discussed after she started or before therefore requiring her to read the whole case?

[TechTalk]

Thanks for that info.  Do you know if the Nov 25 case discussed after she started or before therefore requiring her to read the whole case?

The case was a request for injunctive relief presented to the court on November 12th. After reviewing briefs from multiple parties, the relief from injunction was granted on November 25th.

https://www.scotusblog.com/case-files/cases/roman-catholic-diocese-of-brooklyn-new-york-v-cuomo

[TechTalk]

As an example of what I mentioned earlier of justices recusing themselves in petitions for a writ of certiorari (petitions to the court to hear a particular case) due to previous involvement with a case prior to being docketed with the Supreme Court, see the link below. "Petition DENIED. Justice Barrett took no part in the consideration or decision of this petition."

https://certpool.com/Supreme Court Docket Number 20-7115

Justice Barrett recused due to the case originating from the U.S. Seventh Circuit Court of Appeals where she previously served. The court only accepts a small percentage of the petitions it receives to review cases. Just in the first weeks of service, Barrett recused many times on "cert" decisions from Seventh Circuit cases due to previous work on that court and will many many additional times. Should any of those Seventh Circuit cases actually make it thru to being accepted, she will then have to decide whether to recuse or participate. To get an idea of just how many cases have already been denied this term from Barrett's former place of employment, see the link below.

https://certpool.com/from/circuit/Seventh Circuit/denied

[Alan Klein]

The case was a request for injunctive relief presented to the court on November 12th. After reviewing briefs from multiple parties, the relief from injunction was granted on November 25th.

https://www.scotusblog.com/case-files/cases/roman-catholic-diocese-of-brooklyn-new-york-v-cuomo

So she was available for all discussions. How does that work when they're not? At what point do absences due to illness reach a point when the justice backs out of making a decision?  Are there standards that the justices are to follow promulgated by the Supreme Court's own rules?   

[TechTalk]

To the best of my knowledge, unless a justice has recused themself from a case, they can vote on a case. There is an article below regarding the Notorious RBG continuing to participate while recovering at home from January 7, 2019.

https://apnews.com/article/Ginsburg misses Supreme Court arguments for the 1st time

WASHINGTON (AP) — Justice Ruth Bader Ginsburg is missing arguments for the first time in more than 25 years as she recuperates from cancer surgery last month, the Supreme Court said.

Ginsburg was not on the bench as the court met Monday to hear arguments. It was not clear when she would return to the court, which will hear more cases Tuesday and Wednesday, and again next week.

Court spokeswoman Kathy Arberg said the 85-year-old justice is continuing to recuperate and work from home after doctors removed two cancerous growths from her left lung on Dec. 21.

Ginsburg was discharged from a New York hospital on Dec. 25.

Chief Justice John Roberts said in the courtroom Monday that Ginsburg would participate in deciding the argued cases “on the basis of the briefs and transcripts of oral arguments.”

Ginsburg did not return to the court until February 19th after being absent for two months, but decided on 11 cases while recuperating at home.

https://www.npr.org/2019/02/19/695773628/ruth-bader-ginsburg-returns-to-supreme-court-bench-after-lung-cancer-surgery

The 85-year-old liberal feminist icon underwent surgery for lung cancer in late December and since then has been recovering at home. In January, for the first time in her 25-year tenure, she missed being in court for oral arguments, but she participated in the decision of those 11 cases based on the written briefs and transcripts of the arguments.

[Alan Klein]

As an example of what I mentioned earlier of justices recusing themselves in petitions for a writ of certiorari (petitions to the court to hear a particular case) due to previous involvement with a case prior to being docketed with the Supreme Court, see the link below. "Petition DENIED. Justice Barrett took no part in the consideration or decision of this petition."

https://certpool.com/Supreme Court Docket Number 20-7115

Justice Barrett recused due to the case originating from the U.S. Seventh Circuit Court of Appeals where she previously served. The court only accepts a small percentage of the petitions it receives to review cases. Just in the first weeks of service, Barrett recused many times on "cert" decisions from Seventh Circuit cases due to previous work on that court and will many many additional times. Should any of those Seventh Circuit cases actually make it thru to being accepted, she will then have to decide whether to recuse or participate. To get an idea of just how many cases have already been denied this term from Barrett's former place of employment, see the link below.

https://certpool.com/from/circuit/Seventh Circuit/denied

In New York State I joined the defendant, the City of New York, to fight against the plaintiff who was trying to get my award of a contract cancelled.  We were the low bidder.  we were really fighting the electrical union because we weren;t union.  In any case, we won at trial.  Then they appealed and the we won in the Supreme Court unanimously and then the Appeals Court unanimously.  (In NY, the Appeals Court is above the Supreme Court and the highest court in the state). 

However, in a separate Federal case where my company was a defendant, I lost but never appealed it.  I ran out of money to pay the lawyers.  It's very expensive to appeal.   At one point during the trial phase, my lawyer pulled out and asked the judge to approve that leaving me to get another new lawyer.  So we had a meeting with the trial justice in his chambers at Federal Court of the Southern District in Manhattan.  After he listened to my complaint of unfairness, he, a past loyal lawyer before he became a judge, defended my lawyer quipping to me when he denied my request to keep my lawyer on the case, "You know, Mr. Klein, the American jurisprudence system is not always fair."  I was stunned by his remarks.  But that's the way it is.