Supreme Court roundup


  • Somin’s argument ignores the fact that Americans have rights, and those who want to enter the nation do not.

    And what are you going to do–outsource travel policy to federal judges?

    • As a matter of law, you’re wrong. Aliens do not have the same rights as US citizens, but they do have some rights. The courts have held that the Constitutional prohibition of discrimination on the basis of religion applies to aliens wishing to enter the United States. Aliens do not have a right to enter the United States (except possibly under international law if they have valid claims to asylum), but the decision as to who to admit and who not to admit may not lawfully be made on the basis of their religion.

      Travel policy has been set by Congress in legislation, and some policies barring discrimination flow directly from the Constitution. It is not “outsourcing” for federal judges to apply the Constitution and the law to determine whether actions of the President are valid.

      • An overseas alien generally will not have standing. And on the basis of religion/nationality—hmmmm you think that a US president couldn’t prioritize Christian refugees from the Middle East?

        • Standing affects who can file suit, not what the law is.

          A President could prioritize Christian refugees insofar as they are more likely subject to persecution in their home country. However, he could not prioritize Christian immigrants who were not at risk of persecution, nor could he prioritize Christian refugees over another category of refugee equally or more subject to persecution (e.g. Muslim homosexuals). Religion can to some extent be taken into account but only as relevant to another factor.

          • Sez you. The law appears to be otherwise.

  • Regarding the Ninth Circuit–it sure has eaten its share of per curiam summary reversals with opinion.

    Kim McLane Wardlaw has authored four opinions that have been so well-received at SCOTUS.

    • The 6th may well be the most reversed court now, but judging from my readings over the past decade or so, its because of their seeming disregard for the Anti-terrorism and Effective Death Penalty Act. They seem hard pressed to let a death sentence stand.

      Exclude that one hill on which the 6th has chosen (repeatedly) to die on, and the 9th rejoins its rightful place as most out of touch (generally) with the rest of the Nation.

      That’s my impression, anyways.

      • In terms of cases accepted for cert by SCOTUS vs reversals, the 9th has never been the worst.

        Overall, once SCOTUS agrees to hear a case, the average reversal rate is around 70-75%. The 9th is only a couple of percentage points higher than that. And there are two other circuits that are in the 80% range.

        The reason the 9th stands out is because they simply handle more cases than any other circuit, and thus have more appeals to SCOTUS.

        By population, the 9th is the largest of the geographically defined circuits and is nearly twice the size of the next largest circuit. With 13 (including DC) geographically defined circuits, the 9th has almost 20% (1/5th) of the total US population.

        • Wasn’t it the 9th that expressed “they can’t reverse them all” in response to concerns about their reversal rates? Percentages are unavailing when the courts are buried in volume – volume which may be wrong, but not so egregiously wrong that it requires reversal. Particularly when SCotUS will allow an incorrect ruling to stand, for a host of reasons.

        • O cruel one, be kind
          Accept a heart that’s yearnèd
          More often than the Ninth
          For you been overturnèd


          • Thank you – I was less certain of that association than many of my comments. Reinhardt seems comfortably in pocket for that particular quote.

  • So…

    In more than two decades, I have never figured out why Ford insists on taking the cases it does to Appeal and further. They seem to believe that, if only they try enough times, they will somehow disprove the old adage that “bad facts make bad law”.

    Not a terrible brief from the Alliance. There were times I used to weigh in on those. Honestly, don’t miss it.

    and a disclosure I’ve not had to make in a while – I’m not an attorney. I did spend a lot of my professional career working for a major automobile manufacturer in a job closely associated with litigation. That manufacturer, I will confirm, was not Ford. As that fact seems relevant here.