# A remarkable set of recent SCOTUS splits - is a message being sent? **URL:** \ **Category:** Politics & Elections\ **Created:** [June 18, 2019, 6:16pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701 "2019-06-18T18:16:53Z")\ **Posts on this page:** 19\ **Page:** 5
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 27, 2019, 3:31pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/81 "2019-06-27T15:31:55Z")
> [@CaptMurdock](#): > > Well, now… > > [Supreme Court tosses the citizenship question from the 2020 census form.](https://www.nbcnews.com/politics/supreme-court/supreme-court-tosses-citizenship-question-2020-census-forms-victory-democratic-n1014651) > > 🆒 The left has the playbook that gets Roberts’ vote every time: 1. After oral argument, write that the Court seems ready to side with (conservative position) 5-4. 2. Continue publishing articles with the tone that the decision has already been announced 5-4. 3. Publish more ominous arguments about how the Supreme Court is nothing but a 5-4 tool for Republicans. 4. Write stories about how the Burger and Rehnquist Courts were respected, but the Roberts Court is still unknown. 5. Keep it up. 6. John Roberts will get squicky and flip. Roberts is an embarrassment. He is more worried about his public image than getting the law right. ---
**Author:** ![CaptMurdock](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/captmurdock/32/11736_2.png) [@CaptMurdock](https://boards.straightdope.com/u/CaptMurdock)\ **Post date:** [June 27, 2019, 3:37pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/82 "2019-06-27T15:37:39Z")
> [@UltraVires](#): > > The left has the playbook that gets Roberts’ vote every time:[snip] You’re assuming he _reads_ this particular “playbook” > [@](#): > > Roberts is an embarrassment. He is more worried about his public image than getting the law right. No, he’s more worried about “The Roberts Court” being said in the same breath as the Dred Scott decision. In that, oft times, he gets the law right. ---
**Author:** ![CaptMurdock](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/captmurdock/32/11736_2.png) [@CaptMurdock](https://boards.straightdope.com/u/CaptMurdock)\ **Post date:** [June 27, 2019, 3:38pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/83 "2019-06-27T15:38:45Z")
> [@Fiddle\_Peghead](#): > > Presumably judiciaries that are not _federal_. Mmmm. Good point. :o ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [June 27, 2019, 3:46pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/84 "2019-06-27T15:46:18Z")
> [@UltraVires](#): > > The left has the playbook that gets Roberts’ vote every time: > > 1. After oral argument, write that the Court seems ready to side with (conservative position) 5-4. > > 2. Continue publishing articles with the tone that the decision has already been announced 5-4. > > 3. Publish more ominous arguments about how the Supreme Court is nothing but a 5-4 tool for Republicans. > > 4. Write stories about how the Burger and Rehnquist Courts were respected, but the Roberts Court is still unknown. > > 5. Keep it up. > > 6. John Roberts will get squicky and flip. > > Roberts is an embarrassment. He is more worried about his public image than getting the law right. Interesting. How many times has the left run this play? ---
**Author:** ![bobot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bobot/32/21622_2.png) [@bobot](https://boards.straightdope.com/u/bobot)\ **Post date:** [June 27, 2019, 3:49pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/85 "2019-06-27T15:49:26Z")
Keeping the citizenship question off is a wonderful ruling. I’ll tip a glass to the court, but it has to wait until later. Ironically, the gerrymandering ruling sucks, but that one really is in the hands of every voter to address. The eople DO have the power to stop that with our individual votes. (Not easy, no. But within our power.) The people had little to control over the citizenship question, however. And keeping it off now means that a truer voice of the people will be heard, and it is this same voice that CAN control the gerrymandering shenanigans. (So it’s up to the people, that CAN work out, but it requires participation. Talk about a double edged sword!) ---
**Author:** ![That\_Don\_Guy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/that_don_guy/32/538_2.png) [@That\_Don\_Guy](https://boards.straightdope.com/u/That_Don_Guy)\ **Post date:** [June 27, 2019, 3:52pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/86 "2019-06-27T15:52:58Z")
> [@CaptMurdock](#): > > Well, now… > > [Supreme Court tosses the citizenship question from the 2020 census form.](https://www.nbcnews.com/politics/supreme-court/supreme-court-tosses-citizenship-question-2020-census-forms-victory-democratic-n1014651) > > 🆒 IANALBIALIOTI (I Am Not A Lawyer But I Act Like One On The Internet), but the way I read the decision, it broke down like this: 1. Did anybody have standing to challenge the question in the first place? Yes (unanimous) 2. Did the Secretary of Commerce have the authority to ask the question in the first place? Yes (Roberts, Kavanaugh, Gorsuch, Alito, Thomas) 3. Can the question’s inclusion be reviewed? Yes (everybody but Gorsuch and Alito) 4. Does the question violate the Census Act’s provision that it can’t be asked if the information is elsewhere available (in this case, from Department of Justice data)? No (Roberts, Kavanaugh, Gorsuch, Alito, Thomas) 5. Does the question violate the Census Act’s requirement that all questions must be submitted in a report to Congess at least two years in advance? No, as the Act also provides for a supplemental report that includes the question(s), which was filed (Roberts, Kavanaugh, Gorsuch, Alito, Thomas) 6. In light of information made available after arguments were made, does the Court have the authority to ask that the case be brought back to lower courts for possible reconsideration? Yes (Roberts, Ginsburg, Breyer, Sotomayor, Kagan). ---
**Author:** ![suranyi](https://avatars.discourse-cdn.com/v4/letter/s/e36b37/32.png) [@suranyi](https://boards.straightdope.com/u/suranyi)\ **Post date:** [June 27, 2019, 4:23pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/87 "2019-06-27T16:23:49Z")
> [@CaptMurdock](#): > > On the other side of the coin: > > [Supreme Court allows severe partisan gerrymandering to continue](https://www.cnn.com/2019/06/27/politics/partisan-gerrymandering-supreme-court/index.html?cid=web-alerts&nsid=65293260) > > :dubious: > Really, Johnny? If the judiciary cannot fix it, who the hell is going to?? What he said is that this can be fixed in the states or in Congress by passing laws, or conceivably by a constitutional amendment. In other words by a political process. I don’t necessarily agree with this myself, but that is the decision of the court. It’s long been known that some things are political questions that cannot be settled by the courts. Just what those are is debatable. ---
**Author:** ![thorny\_locust](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/thorny_locust/32/431_2.png) [@thorny\_locust](https://boards.straightdope.com/u/thorny_locust)\ **Post date:** [June 27, 2019, 4:54pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/88 "2019-06-27T16:54:03Z")
Is what happened effectively that SCOTUS first said ‘yes, we are going to hear these cases’ and then said ‘we have no jurisdiction to hear these cases’? ---
**Author:** ![That\_Don\_Guy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/that_don_guy/32/538_2.png) [@That\_Don\_Guy](https://boards.straightdope.com/u/That_Don_Guy)\ **Post date:** [June 27, 2019, 5:02pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/89 "2019-06-27T17:02:15Z")
> [@thorny\_locust](#): > > Is what happened effectively that SCOTUS first said ‘yes, we are going to hear these cases’ and then said ‘we have no jurisdiction to hear these cases’? Sounds like it. It only takes four (three?) justices to agree to hear a case. And keep in mind the court said that state courts can still hear gerrymandering cases - just not federal courts. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [June 27, 2019, 5:03pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/90 "2019-06-27T17:03:19Z")
> [@CaptMurdock](#): > > Well, now… > > [Supreme Court tosses the citizenship question from the 2020 census form.](https://www.nbcnews.com/politics/supreme-court/supreme-court-tosses-citizenship-question-2020-census-forms-victory-democratic-n1014651) > > 🆒 Should be noted that they didn’t kick it off; they sent it back to the lower court for more fact-finding. It can still get on, but the effort to do so is going to start running into a time crunch. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [June 27, 2019, 5:04pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/91 "2019-06-27T17:04:20Z")
> [@CaptMurdock](#): > > On the other side of the coin: > > [Supreme Court allows severe partisan gerrymandering to continue](https://www.cnn.com/2019/06/27/politics/partisan-gerrymandering-supreme-court/index.html?cid=web-alerts&nsid=65293260) > > :dubious: > Really, Johnny? If the judiciary cannot fix it, who the hell is going to?? Not everything that is bad is unconstitutional. This is a classic example. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [June 27, 2019, 5:24pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/92 "2019-06-27T17:24:36Z")
> [@thorny\_locust](#): > > Is what happened effectively that SCOTUS first said ‘yes, we are going to hear these cases’ and then said ‘we have no jurisdiction to hear these cases’? “Jurisdiction” is a poor word to use here. The Court has subject matter jurisdiction over the general area. But the political question doctrine when applied results in the determination that the issue is non-justiciable. That is, it’s not a question of law before the court, but a question of political power. And that means it’s not really a “case or controversy”, as that terms is used in the Constitution, and cannot be heard by the federal courts. _Baker v. Carr_, 369 U.S. 186 (1962) sets forth a whole list of questions to consider when determining if an issue is a non-justiciable political question. At some point, if a non-justiciable question is presented to a court (political question, unripe question, moot question, advisory opinion, collusive suit, etc.), somewhere along the line the court system has to make that determination. Here, the determination was made finally in these cases by the Supreme Court of the United States. Since the issue had not been decided previously, it was important for the Court to grant the requested writs of certiorari so that it could reach a determination. Granting certiorari is not the same as saying, “yes, we have subject matter jurisdiction and this is justiciable.” ---
**Author:** ![Fiddle\_Peghead](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fiddle_peghead/32/3506_2.png) [@Fiddle\_Peghead](https://boards.straightdope.com/u/Fiddle_Peghead)\ **Post date:** [June 27, 2019, 7:16pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/93 "2019-06-27T19:16:14Z")
> [@UltraVires](#): > > The left has the playbook that gets Roberts’ vote every time: > > 1. After oral argument, write that the Court seems ready to side with (conservative position) 5-4. > > 2. Continue publishing articles with the tone that the decision has already been announced 5-4. > > 3. Publish more ominous arguments about how the Supreme Court is nothing but a 5-4 tool for Republicans. > > 4. Write stories about how the Burger and Rehnquist Courts were respected, but the Roberts Court is still unknown. > > 5. Keep it up. > > 6. John Roberts will get squicky and flip. > > Roberts is an embarrassment. He is more worried about his public image than getting the law right. Do you not suppose that Roberts would be more worried about his public image if he generally made decisions influenced by cunning liberals and their tactics, than if he made those decisions based upon his knowledge of the law and interest in “getting it right”? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 27, 2019, 7:42pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/94 "2019-06-27T19:42:56Z")
> [@DSYoungEsq](#): > > Should be noted that they didn’t kick it off; they sent it back to the lower court for more fact-finding. It can still get on, but the effort to do so is going to start running into a time crunch. I’m scratching my head at what the census department has to show on remand. What if it just said that it wanted to start asking the question again so that people would get used to seeing the question so as not to be afraid of it in the future (In addition to the VRA enforcement)? Roberts’ opinion cites a litany of cases showing how deferential courts are supposed to be to agencies, but in this case because the extra discovery, which was agreed should not have been permitted anyways, showed that Ross made the decision to add the question before contacting the DOJ to request the request to add it, then that couldn’t have been the real reason. Thomas does a good job in dissent explaining which this is not necessarily so. The rule seems to be only if you are going to tell lies, they don’t have to be good, but good enough that the judge could swallow it. And it sets a bad precedent. If I don’t like a federal regulation, I forum shop for a judge and during the case the judge rules incorrectly on almost every point of law, but I get to go on a fishing expedition and if I catch something, anything during my improper discovery phase, I win. ---
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [June 27, 2019, 7:57pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/95 "2019-06-27T19:57:01Z")
> [@DSYoungEsq](#): > > Not everything that is bad is unconstitutional. This is a classic example. Could a D Congress fix it? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 27, 2019, 8:39pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/96 "2019-06-27T20:39:53Z")
> [@DSeid](#): > > Could a D Congress fix it? Absolutely: [QUOTE=US Constitution, Article I, Section 4] The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators. [/QUOTE] So Congress could pass a law requiring districts drawn based upon no partisan considerations at all, or only allow say a 20% bump for the majority party. Then the courts could handle these claims as that would address Roberts’ objection that under current law, partisanship is permitted in drawing districts and courts had the problem of saying what was too much partisanship. ---
**Author:** ![suranyi](https://avatars.discourse-cdn.com/v4/letter/s/e36b37/32.png) [@suranyi](https://boards.straightdope.com/u/suranyi)\ **Post date:** [June 27, 2019, 11:54pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/97 "2019-06-27T23:54:09Z")
> [@suranyi](#): > > What he said is that this can be fixed in the states or in Congress by passing laws, or conceivably by a constitutional amendment. In other words by a political process. I don’t necessarily agree with this myself, but that is the decision of the court. > > It’s long been known that some things are political questions that cannot be settled by the courts. Just what those are is debatable. Oh, it could also be fixed by initiative referendum, which is how we did it in California. ---
**Author:** ![Fiddle\_Peghead](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fiddle_peghead/32/3506_2.png) [@Fiddle\_Peghead](https://boards.straightdope.com/u/Fiddle_Peghead)\ **Post date:** [June 28, 2019, 12:04am UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/98 "2019-06-28T00:04:40Z")
> [@Fiddle\_Peghead](#): > > Do you not suppose that Roberts would be more worried about his public image if he generally made decisions influenced by cunning liberals and their tactics, than if he made those decisions based upon his knowledge of the law and interest in “getting it right”? Also to **UltraVires** : And what about the gerrymandering vote by Roberts? Maybe the cunning left just wasn’t up to the task of cleverly getting him to vote for their side? Or what? How do you feel about that one? ---
**Author:** ![thorny\_locust](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/thorny_locust/32/431_2.png) [@thorny\_locust](https://boards.straightdope.com/u/thorny_locust)\ **Post date:** [June 28, 2019, 3:12am UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/99 "2019-06-28T03:12:05Z")
> [@UltraVires](#): > > I’m scratching my head at what the census department has to show on remand. What if it just said that it wanted to start asking the question again I could have sworn I posted in response to this already, but the post seems to have disappeared. Maybe I never actually hit ‘submit’? Anyway: AIUI, the census department didn’t want to ask the question in the first place. They were ordered to, over their objections, by the Secretary of Commerce; to whom the Congress some time ago delegated the power to do so. [https://www2.census.gov/cac/sac/meetings/2018-03/2018-08-16-census-response.pdf](https://www2.census.gov/cac/sac/meetings/2018-03/2018-08-16-census-response.pdf)? > [@](#): > > CSAC wishes to officially state our opposition to the last-minute inclusion of the citizenship question on the 2020 Census. We have concerns about the lack of adequate testing, about the implications for nonresponse {unit and item), implications for the cost, and implications for attitudes about the Census Bureau and concerns about confidentiality. There is a hierarchy of needs for the decennial census, with an accurate count of foremost importance, so any proposed changes should be evaluated in consideration of the potential impact on completeness and accuracy. [Previous page](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701.md?page=4)