SCOTUS OT 2023

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Defenestrar

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  • #1
    This thread is for the discussion of the cases considered during the US Supreme Court Term starting in October of 2023 (i.e. October '23 through June '24). I'll attempt to maintain a hyperlinked calendar on this first post as long as the new forums allow - which was all term last year, so chalk up another win for the new forum!

    October
    "November"
    "December"
    January
    Out of Sequence February Emergency Docket and/or Cert Before Judgement Grants
    • Thursday, February 8
    • EPA Good Neighbor cases (now scheduled for regular February session)
    • Moyle v. US and related Idaho ER Abortion cases (now expected for April session)

    February
    March
    April
     
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    Defenestrar

    Defenestrar

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  • #2
    I'd suggest the same attempt we made last year to keep the scope for this thread mostly on the legal reasoning and practical implications for the US whenever possible. The "rightness" of things like morality and even more subjective emotional reactions (especially when substituted for analysis) are a harder topic and may warrant another thread (of which the SB has several). As has been pointed out, most of us here are really only going to be good for Monday morning quarterbacking levels of legal argument and opinion analysis. But discussion helps us learn and process - or at least it helps me learn and understand.

    Naturally we can't enjoin this activity with a pure legalese navel gazing as none of this happens in a vacuum. What is legally correct and morally correct do overlap (thankfully) and so will some of our discussion. That means we'll fall down the occasional rabbit hole, but hopefully we'll bring each other back on topic once the adventure in Wonderland becomes too perilous. As always, I'd ask that respect for persons using reason be extended even when conclusions disagree with one's own (this goes for Arsians and justices alike). I know I always appreciate it, and listen better, when my own errors (or differences) are dismantled with logical precision delivered with courtesy. I may have even had my mind changed once or twice.

    Also as a reminder, we have a Shadow/Emergency docket thread for SCOTUS things that happen out of the normal sequence of events.

    PS - and yes, I recycled plenty of opening text from last year.
     
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    Defenestrar

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  • #3
    This is a light start to the year with rarely more than one case per argument day. The Halloween cases have reared their head in a couple of ways over the last several years. These are questions about whether a government official can block a member of the public on their private social media account if they also use that account for communicating the government's message. The two cases are asking slightly different questions, but they're both in First Amendment territory.
     
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    Shavano

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  • #6
    Pulsiver is bizarre. How can there be any controversy whether "and" in the law means "and"? Wouldn't somebody have written "or" if they had meant "or?"

    Acheson Hotels could have a lot more impact than you might imagine. If an ADA tester can claim standing based on not seeing something on the website of a business they don't plan to use, it sounds like even more tenuous standing claims are about to be entertained - and could be used to uphold extreme reaches of standing, e.g. in abortion laws.
     
    Defenestrar

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  • #7
    Essentially Acheson is testing the government's model of incentivising private enforcement of things like the ADA. There are too many businesses for the government to go around checking compliance every time a small remodel happens or a website gets updated, and waiting for a disabled person to be inconvenienced isn't ideal, so opening up private suits gets them regulatory reach.

    It's more than simple standing (but it includes that), but it's a whole model for how our government regulates things when congress doesn't give them resources or the scope is too large for their inspection paradigm. But we've also seen state-level private enforcement politically weaponized for things the government otherwise couldn't regulate (i.e. abortion) as a way to get around standing.

    The problem is that a straight "no" here could set back accessibility and accessibility information. My hope is for a nuanced decision and really clear-cut tests for when the government can out-source regulatory issues by letting the private party take a part of the cut.
     
    N4M8-

    N4M8-

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  • #8
    Shavano said:
    Pulsiver is bizarre. How can there be any controversy whether "and" in the law means "and"? Wouldn't somebody have written "or" if they had meant "or?"
    Click to expand...

    I am trying to figure out the difference between the two readings given:

    ¬ (A ∧ B ∧ C) = ¬A ∨ ¬B ∨ ¬C

    With the left side being what the Ninth Circuit Court holds and the right side being with the Seventh and Eighth hold.

    Mind you, the language in the grant of cert strikes me as imprecise as well:

    The question presented is whether the "and" in 18 U.S.C. § 3553(f)(1) means "and," so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point offense (as the Ninth Circuit holds), or whether the "and" means "or," so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3- point offense, or (C) a 2-point violent offense (as the Seventh and Eighth Circuits hold).
    Click to expand...
    The negation is meant to be distributed over the each of (A), (B), and (C) in the statement and it would have been cleaner to have written it that way:

    "...so that a defendant satisfies the provision so long as he (A) does not have more than 4 criminal points, (B) a 3- point offense, or (C) does not have a 2- point violent offense..."

    I am well aware of what forum I am on and have often decried the stereotype which seems so often to be unironically invoked here of engineering/science types behaving as if their knowledge and training in their particular fields allows them to make well-grounded statements about other fields. So please understand my great unease in what I have written thus far and moreover in stating this is what you get when you let a bunch of lawyers (whose undergraduate degrees are typically in things like English, Philosophy, Political Science, Economics, Finance) dabble in predicate logic without ever having had a course in formal logic or at least a Circuits course.

    That last statement may be less a reflection of engineering condescension than one of misplaced father issues as dad was a lawyer with an undergraduate degree in English. :judge:

    Or I could just be a bit bored on a Sunday morning and lashing out due to having too often seen people's code featuring wholly unnecessary parenthesis around AND clauses with nary a NOT or OR in sight.
     
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    Shavano

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  • #9
    N4M8- said:
    I am trying to figure out the difference between the two readings given:

    ¬ (A ∧ B ∧ C) = ¬A ∨ ¬B ∨ ¬C

    With the left side being what the Ninth Circuit Court holds and the right side being with the Seventh and Eighth hold.

    Mind you, the language in the grant of cert strikes me as imprecise as well:


    The negation is meant to be distributed over the each of (A), (B), and (C) in the statement and it would have been cleaner to have written it that way:

    "...so that a defendant satisfies the provision so long as he (A) does not have more than 4 criminal points, (B) a 3- point offense, or (C) does not have a 2- point violent offense..."

    I am well aware of what forum I am on and have often decried the stereotype which seems so often to be unironically invoked here of engineering/science types behaving as if their knowledge and training in their particular fields allows them to make well-grounded statements about other fields. So please understand my great unease in what I have written thus far and moreover in stating this is what you get when you let a bunch of lawyers (whose undergraduate degrees are typically in things like English, Philosophy, Political Science, Economics, Finance) dabble in predicate logic without ever having had a course in formal logic or at least a Circuits course.

    That last statement may be less a reflection of engineering condescension than one of misplaced father issues as dad was a lawyer with an undergraduate degree in English. :judge:

    Or I could just be a bit bored on a Sunday morning and lashing out due to having too often seen people's code featuring wholly unnecessary parenthesis around AND clauses with nary a NOT or OR in sight.
    Click to expand...
    I thought they taught symbolic logic in undergraduate philosophy classes. Do they not?
     
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    Shavano

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  • #11
    It comes down to "maybe the lawmakers didn't mean what they wrote" though, which should never be presumed without strong evidence. And even then, probably the right thing to do is assert that the law is what has been written, regardless of what they meant; if courts can't figure out what was meant, it's likely that lawmakers never really agreed either. They can change it if they want to.
     
    N4M8-

    N4M8-

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  • #12
    Shavano said:
    It comes down to "maybe the lawmakers didn't mean what they wrote" though, which should never be presumed without strong evidence.
    Click to expand...
    We agree. The question is what did they actually write (how do you interpret it). The intent of the people is not, to my knowledge, all that meaningful compared to actual text, hence all that business about fine print, deception, etc.--text is meaningful, intent is in the realm of divining tea leaves.

    Take the Maine case involving overtime pay in regards to the following bit of law from Maine about who does not qualify for overtime:

    The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
    (1) Agricultural produce;
    (2) Meat and fish products; and
    (3) Perishable foods
    Click to expand...

    The intent was that those involved in delivering agricultural produce, meat and fish (note: here is a case where a strictly meat or strictly fish product are being spoken of as that is how they are commonly delivered and enjoyed is meant but the law is listing things so they word "and" is used because the items are being listed and everyone understands that "meat and fish products" are not referring to things made of beef mixed with salmon), or perishable food would not qualify for overtime. But because there was no comma after the word "shipment" the decision by the court was that those "packing for shipping or distribution" were not entitled to overtime while those just distributing (delivering) were. But in that case the textual reading is straightforward.

    The issue here is that there is an argument that the text can be read two different ways.
     
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    Shavano

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  • #13
    N4M8- said:
    We agree. The question is what did they actually write (how do you interpret it). The intent of the people is not, to my knowledge, all that meaningful compared to actual text, hence all that business about fine print, deception, etc.--text is meaningful, intent is in the realm of divining tea leaves.

    Take the Maine case involving overtime pay in regards to the following bit of law from Maine about who does not qualify for overtime:



    The intent was that those involved in delivering agricultural produce, meat and fish (note: here is a case where a strictly meat or strictly fish product are being spoken of as that is how they are commonly delivered and enjoyed is meant but the law is listing things so they word "and" is used because the items are being listed and everyone understands that "meat and fish products" are not referring to things made of beef mixed with salmon), or perishable food would not qualify for overtime. But because there was no comma after the word "shipment" the decision by the court was that those "packing for shipping or distribution" were not entitled to overtime while those just distributing (delivering) were. But in that case the textual reading is straightforward.

    The issue here is that there is an argument that the text can be read two different ways.
    Click to expand...
    And I agree with their decision. The legislature should have written what they meant if they meant differently.
     
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    Shavano

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  • #15
    N4M8- said:
    I am trying to figure out the difference between the two readings given:

    ¬ (A ∧ B ∧ C) = ¬A ∨ ¬B ∨ ¬C

    With the left side being what the Ninth Circuit Court holds and the right side being with the Seventh and Eighth hold.

    Mind you, the language in the grant of cert strikes me as imprecise as well:


    The negation is meant to be distributed over the each of (A), (B), and (C) in the statement and it would have been cleaner to have written it that way:

    "...so that a defendant satisfies the provision so long as he (A) does not have more than 4 criminal points, (B) a 3- point offense, or (C) does not have a 2- point violent offense..."

    I am well aware of what forum I am on and have often decried the stereotype which seems so often to be unironically invoked here of engineering/science types behaving as if their knowledge and training in their particular fields allows them to make well-grounded statements about other fields. So please understand my great unease in what I have written thus far and moreover in stating this is what you get when you let a bunch of lawyers (whose undergraduate degrees are typically in things like English, Philosophy, Political Science, Economics, Finance) dabble in predicate logic without ever having had a course in formal logic or at least a Circuits course.

    That last statement may be less a reflection of engineering condescension than one of misplaced father issues as dad was a lawyer with an undergraduate degree in English. :judge:

    Or I could just be a bit bored on a Sunday morning and lashing out due to having too often seen people's code featuring wholly unnecessary parenthesis around AND clauses with nary a NOT or OR in sight.
    Click to expand...
    As I read:
    (1)the defendant does not have—
    (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;​
    (B) a prior 3-point offense, as determined under the sentencing guidelines; and​
    (C) a prior 2-point violent offense, as determined under the sentencing guidelines;​
    Click to expand...
    (A) means only criminal history points from greater than 1 point offenses are to be included in the total; if the total, of 2 & greater point offenses is > 4, (A) is satisfied
    (B) if the defendant has a prior 3 point offense, B is satisfied
    (C) if the defendant has a prior 2 point offense, C is satisfied

    the logic is NOT (A and B and C) which is equivalent to ( not A or not B or not C ). So if a defendant has only 3 point offenses or only 2 point offenses, and not a mix of both, they'd qualify. It's unlikely anybody meant that to be the standard, but that's what it is. Who knows? Maybe the legislature wanted to go lighter on people with more serious convictions because they thought the sentencing guidelines would otherwise over punish them. I don't see how a court can decide that question.
     
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    Shavano

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  • #18
    N4M8- said:
    The question I have is the district readings appear to be ogically equivalent, so what is being resolved?
    Click to expand...
    The other claimed reading (not based on the text) is:
    a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point offense (as the Ninth Circuit holds), or whether the "and" means "or," so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3- point offense, or (C) a 2-point violent offense
    Click to expand...
    that is, !(A v B v C), which is equivalent to !A and !B and !C.

    IOW, they satisfy it only if they satisfy all three elements, rather than just one. You would need to have fewer than 4 points (not counting single point offenses) and no 2 point offenses and no 3 point offenses.

    Let's take Defendant 1. He has a number of 1 point offenses, and a single 2 point offense. Under the rule as written, ! (A ^ B ^ C) = ! (true ^ false ^ true) = ! false = true. He qualifies. Under the fun house version, ! (A V B V C) = ! (true V false V true) = ! true = false. He does not qualify.
     
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  • #19
    Shavano said:
    The other claimed reading (not based on the text) is:

    that is, !(A v B v C), which is equivalent to !A and !B and !C.

    IOW, they satisfy it only if they satisfy all three elements, rather than just one. You would need to have fewer than 4 points (not counting single point offenses) and no 2 point offenses and no 3 point offenses.

    Let's take Defendant 1. He has a number of 1 point offenses, and a single 2 point offense. Under the rule as written, ! (A ^ B ^ C) = ! (true ^ false ^ true) = ! false = true. He qualifies. Under the fun house version, ! (A V B V C) = ! (true V false V true) = ! true = false. He does not qualify.
    Click to expand...
     
    N4M8-

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  • #20
    Shavano said:
    The other claimed reading (not based on the text) is:
    Click to expand...
    It is based on the text but with an eye towards how people informally use the language, and I just realized how.

    The text is:
    A defendant satisfies § 3553(f)(1), as amended, if he "does not have-(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines." 18 U.S.C. § 3553(f)(1) (emphasis added).
    Click to expand...
    "does not have" comes before a list of requirements. The question is if the "and" in the list of requirements is meant to be saying "these things all together are what we are looking at but each is meant to be negated"--(-A ∧ -B ∧ -C) which logically is equivalent to -(A V B V C) or it is meant as negation of the list of items all considered as one thing -(A ∧ B ∧ C).

    Consider if you your child was came home with a note saying, "Student will be allowed to participate in sports activities this semester if they do not have (a) a pre-existing heart condition, (b) a communicable disease requiring a course of treatment of more than a month, and (c) vision impairment beyond 20/30". You would understand it to be (-A ∧ -B ∧ -C) because no kid is going to have A ∧ B ∧ C all applying.

    Amongst the things I get to deal with regularly is people requesting reports from the patient accounts system, and I get to deal with his language and logic get used by the average person. It is why I am so strident on explicitly applying NOT to each element of a condition as it applies and connecting them with the appropriate con/disjunction. A lot of misunderstanding goes away then. But yeah, as written, with an eye towards formalism, it really is -(A ∧ B ∧ C).
     
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  • #21
    N4M8- said:
    Amongst the things I get to deal with regularly is people requesting reports from the patient accounts system, and I get to deal with his language and logic get used by the average person. It is why I am so strident on explicitly applying NOT to each element of a condition as it applies and connecting them with the appropriate con/disjunction. A lot of misunderstanding goes away then. But yeah, as written, with an eye towards formalism, it really is -(A ∧ B ∧ C).
    Click to expand...
    Is it though? To me this comes across a bit like the whole: "I ain't using no double negatives, I am using negative concord, like the French do" thing. Which is to say: a bunch of stupid overly arrogant people thinking that because they use the language one way, and would never use a double negative, double negatives must be incorrect and actually mean a positive. Of course, standard French uses negative concord, thereby demonstrating the idea there stupid.

    People mean what they typically mean, and, frankly, the when someone says "not A, B, and C" it means (-A ∧ -B ∧ -C) in common usage, which, frankly, is the only meaning that can really be said to exist. If someone wanted -(A ∧ B ∧ C) they would say something like "someone who is not all of A, B, and C" or something similar. Because people know that "Not A, B, and C" is going to be understood as none of A, B, and C and typically phrase to avoid such misunderstandings.
     
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  • #22
    Lt_Storm said:
    People mean what they typically mean, and, frankly, the when someone says "not A, B, and C" it means (-A ∧ -B ∧ -C) in common usage, which, frankly, is the only meaning that can really be said to exist.
    Click to expand...
    While true, we are not dealing with something spoken but written. And while people often write as they speak, we do have some clues in the actual structure of the sentence--there is a hyphen separating "does not have" from the following list of items. What was written is not, "not A, B, and C" but "not--A, B, and C". Why insert the hyphen if you mean the former?
     
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    Shavano

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  • #24
    Lt_Storm said:
    Is it though? To me this comes across a bit like the whole: "I ain't using no double negatives, I am using negative concord, like the French do" thing. Which is to say: a bunch of stupid overly arrogant people thinking that because they use the language one way, and would never use a double negative, double negatives must be incorrect and actually mean a positive. Of course, standard French uses negative concord, thereby demonstrating the idea there stupid.

    People mean what they typically mean, and, frankly, the when someone says "not A, B, and C" it means (-A ∧ -B ∧ -C) in common usage, which, frankly, is the only meaning that can really be said to exist. If someone wanted -(A ∧ B ∧ C) they would say something like "someone who is not all of A, B, and C" or something similar. Because people know that "Not A, B, and C" is going to be understood as none of A, B, and C and typically phrase to avoid such misunderstandings.
    Click to expand...
    It's a mistake to interpret legalese as if it were informal spoken English. This is legalese, which is formal and subject to the rules of formal logic.
     
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  • #25
    Propublica has a new piece about Thomas’ attendance at a Koch fundraiser. And do you think Thomas’ opinion of Chevron was influenced by his billionaire “buddies”?

    www.propublica.org

    Clarence Thomas Secretly Participated in Koch Network Donor Events

    Thomas has attended at least two Koch donor summits, putting him in the extraordinary position of having helped a political network that has brought multiple cases before the Supreme Court.
    www.propublica.org www.propublica.org
     
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  • #28
    Thegn said:
    More likely some very rare issues of Hustler and Playboy, if the rumors of Thomas's peccadillos are accurate. D:
    Click to expand...
    Or videos depicting shenanigans at a fast food fish restaurant.

    Back on topic, this is a good reminder of just how thoroughly corrupted and politicized the Court is, and how legal analysis really is just a fig leaf barely covering their naked ideological agenda.
     
    halse

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  • #29
    More from ProPublica

    On Jan. 25, 2018, dozens of private jets descended on Palm Springs International Airport. Some of the richest people in the country were arriving for the annual winter donor summit of the Koch network, the political organization founded by libertarian billionaires Charles and David Koch. A long weekend of strategizing, relaxation in the California sun and high-dollar fundraising lay ahead.

    Just after 6 p.m., a Gulfstream G200 jet touched down on the tarmac. One of the Koch network’s most powerful allies was on board: Supreme Court Justice Clarence Thomas.

    During the summit, the justice went to a private dinner for the network’s donors. Thomas has attended Koch donor events at least twice over the years, according to interviews with three former network employees and one major donor. The justice was brought in to speak, staffers said, in the hopes that such access would encourage donors to continue giving.

    That puts Thomas in the extraordinary position of having served as a fundraising draw for a network that has brought cases before the Supreme Court, including one of the most closely watched of the upcoming term.

    www.propublica.org

    Clarence Thomas Secretly Participated in Koch Network Donor Events

    Thomas has attended at least two Koch donor summits, putting him in the extraordinary position of having helped a political network that has brought multiple cases before the Supreme Court.
    www.propublica.org www.propublica.org
     
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  • #31
    Ecmaster76 said:
    I think this thread was intended to be about cases for the upcoming term

    Since there is probably going to be more about Thomas, having a separate scandal thread would be nice
    Click to expand...
    A member of the court's apparent corruption might be inseparable from talking about their judgment on cases.
     
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  • #33
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  • #34
    Anacher said:
    The Federal court appointed a group to tell Alabama what their new map is going to be.
    Click to expand...
    Good. If they can't play by the rules, they don't get to play at all. It'll probably result in 1 more Democratic (and black) member of the House.

    edit: or thinking that through again, it'll probably result in one more black (and Democratic) member of the House.
     
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  • #35
    Session starts on Monday!

    Also, in a big First Amendment and tech crossover event the court granted two cases related to social media. SCOTUSblog and Ars! has coverage.

    Docket page for the Texas Case.
    Docket page for the Florida Case.

    The court hasn't published the usual Question Presented document yet, but it can be lifted from the applications on the docket pages (above).

    Question Presented in the Texas Case:
    QUESTION PRESENTED

    Throughout our Nation’s history, the First Amendment’s freedoms of speech and press have protected private entities’ rights to choose whether and how to publish and disseminate speech generated by others. E.g., Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019); Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 570, 575 (1995); Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974).

    Over two decades ago, this Court held there is “no basis for qualifying the level of First Amendment scrutiny that should be applied to” speech disseminated on “the Internet.” Reno v. ACLU, 521 U.S. 844, 870 (1997). Today, many Internet websites publish and disseminate curated collections of expression generated by themselves and others.

    Nevertheless, the State of Texas—much like Florida before it—has enacted a viewpoint-, content-, and speaker-based law (House Bill 20 or “HB20”) targeting certain disfavored “social media” websites. HB20 Section 7 prohibits these websites from making editorial choices based on “viewpoint.” And HB20 Section 2 imposes on these websites burdensome operational and disclosure requirements, chilling their editorial choices. This Court has already ensured once that Respondent cannot enforce this law against Petitioners’ members. NetChoice, LLC v. Paxton, 142 S. Ct. 1715, 1715-16 (2022).

    The question presented is whether the First Amendment prohibits viewpoint-, content-, or speaker-based laws restricting select websites from engaging in editorial choices about whether, and how, to publish and disseminate speech—or otherwise burdening those editorial choices through onerous operational and disclosure requirements.
    Click to expand...

    Question Presented in the Florida Case:
    QUESTION PRESENTED

    Florida’s Senate Bill 7072 imposes unprecedented restrictions on the rights of private Internet companies to exercise editorial judgment over the content on their services. Responding to an alleged conspiracy by “‘big tech’ oligarchs in Silicon Valley” to silence “conservative” content, S.B. 7072 singles out a select group of private companies and saddles them— and only them—with a slew of content-based and discriminatory requirements. The law openly abridges the targeted companies’ First Amendment right to exercise editorial judgment over what content to disseminate on their websites via requirements that are speaker-based, content-based, and viewpoint discriminatory. Those mandates are designed to work hand-in-glove with burdensome disclosure obligations that compel speech, interfere with editorial discretion, and facilitate enforcement of the substantive mandates by, for example, requiring companies to disclose their policies and explain their decisions. In a detailed opinion that explained the law’s many flaws, the Eleventh Circuit unanimously concluded that most of S.B. 7072 cannot be reconciled with the First Amendment. But it then left a subset of the law’s compelled disclosure provisions standing, based on a cursory analysis that side-stepped the law’s pervasive viewpoint-discrimination, while overextending and misapplying Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985).

    The question presented is: Whether S.B. 7072 in its entirety, and its compelled disclosure provisions in particular, comply with the First Amendment.
    Click to expand...
     
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  • #36
    The Economist has a good summary of the administrative/agency cases: The new Supreme Court term takes aim at the administrative state

    A wonky-but-weighty hearing will greet the justices on their second day back in robes. In the snappily named Consumer Financial Protection Bureau (CFPB) v Community Financial Services Association of America, the court will review a decision of the fifth circuit court of appeals, America’s most conservative circuit court, undercutting the consumer-watchdog agency established in the wake of the financial crisis of 2007-08. The fifth circuit ruled that the CFPB has an unconstitutional funding structure. Article I, section 9 of the constitution mandates that “[n]o money shall be drawn from the Treasury, but in consequence of appropriations made by law”. Since the CFPB has a permanent funding stream allocated annually not by Congress but by the Federal Reserve, the plaintiffs argue that its financing is illegitimate.

    If the justices find that this arrangement violates the constitution, everything the agency has done over its 12 years—from cracking down on predatory lenders to breaking up fraudulent debt-collection schemes—could be deemed unlawful, too. The fallout from such a ruling would be “deeply destabilising”, the federal government warns. A friend-of-the-court brief from the housing finance industry predicts “catastrophic economic consequences” should challengers to the CFPB prevail, including “severe instability” in the mortgage market from uncertainty about the status of the agency’s lending rules.

    Similarly significant effects could flow from Securities and Exchange Commission (SEC) v Jarkesy, another fifth-circuit decision coming to the Supreme Court later in the autumn. The case was brought by George Jarkesy after his company, Patriot28, appeared before an administrative-law judge (ALJ) in 2014 for alleged securities fraud involving two hedge funds. After the ALJ found him liable, assessing $300,000 in civil penalties and disgorging $685,000 of illicit profits, Mr Jarkesy sued the SEC, contending that its enforcement procedures are unconstitutional. A fifth-circuit panel found that Mr Jarkesy had a seventh-amendment right to a jury trial, that Congress has handed the SEC too much power and that ALJs are too hard to remove. If the Supreme Court agrees, the SEC will become less nimble in its ability to protect investors. Other agencies using ALJs to enforce regulations, including the Equal Employment Opportunity Commission and Environmental Protection Agency (EPA), could get caught in Jarkesy’s wake.

    A third case threatening the independence of administrative agencies—Loper Bright Enterprises v Raimondo—may pull the plug on a precedent that has been on life support for years. When Chevron v Natural Resources Defense Council came down in 1984, conservatives faithfully applied the deference it afforded to administrative agencies’ own interpretations of ambiguous laws. As long as agencies like the EPA or the Occupational Safety and Health Administration issued “reasonable” regulations in the face of statutory ambiguity, Chevron held, judges should butt out and let the bureaucrats do their work.

    But over the decades justices on the right have soured on Chevron’s long leash for agencies and their progressive regulations. In 2015, in a case involving enforcement of the Clean Air Act, Justice Clarence Thomas wrote that Chevron had enabled the EPA to enact “policy goals”—usurping Congress’s job. Last year, Justice Neil Gorsuch characterised Chevron as “judicial abdication” and argued that although courts now seldom invoke it, the ruling “deserves a tombstone no one can miss”.
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    Frankly, this term could be more impactful than the last, even if the rulings are individually less inflammatory. Particularly with Congress being a clown show and unable to clarify laws or assign more explicit powers.
     
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