Today's Challenge

by wj**

Today, the Supreme Court handed out three decisions. Two were unanimous -- including one which upheld the way Arizona drew its current electoral districts. But the third was more interesting.

Bank Markazi v. Peterson involves the Iran Threat Reduction and Syria Human Rights Act of 2012 (Bank Markazi is otherwise known as the Central Bank of Iran). But the fact that this dealt with the sanctions on Iran is not the interesting part. It also involves $1.75 billion dollars in claims. But that's not the interesting part either.

The interesting part was the 6-2 split among the Justices. Justice Ruth Bader Ginsburg, wrote the majority opinion, joined by Justices Anthony Kennedy, Clarence Thomas, Stephen Breyer, Elena Kagan and Samuel Alito. Chief Justice John Roberts dissented, joined by Justice Sonia Sotomayor. Think about that a second. Ginsburg and Thomas agreeing on something that was not unanimous.

For added interest, the majority opinion includes affirming Executive Order No. 13599. Just for all those who see Executive Orders as an ideological issue as well.

(I am hardly a student of Constitutional law. But I confess that I find Chief Justice Roberts' dissent, which starts on page 28, interesting as well. Although that may just be a case of me confusing justice with legality.)

So your challenge: figure out what ideological position is reflected by this split. Because, after all, everybody knows that the Court is divided on ideological/partisan lines.

** I thought about titling this "Ideology Ain't What It Used To Be." But grammer won.

Comments

[Ugh]

Roberts and Sotomayor are having an affair.

[Doctor Science]

My step one is always to go to SCOTUSblog, where Lyle Denniston says it's about actual judicial ideology and practice, not about how they align with the current parties.

Ginsburg et al. (the majority)

found that the six-year-old law did not flatly dictate the outcome of the victims’ claims but actually changed the controlling law underlying those claims, a typical legislative task. What Congress had left for the courts to do in deciding the case, she said, was not just a "fig leaf." She argued that the law was little different from many narrow laws that Congress has passed, some for the benefit of a single party in a lawsuit.

Dissenting, Roberts & Sotomayor

found that Congress "commandeer[ed] the courts to make a political judgment look like a judicial one," leaving the federal court in the Iran assets case with nothing to do but ratify the choice Congress already had made, awarding the assets to the victims and their families.

I wonder if the absence of Scalia's opinions, which were always very loud and claimed to be based on first principles (even though they often reflected the political needs of the moment), has freed up *all* the other Justices to think for themselves more. Now they don't have to react to/follow/argue against Scalia, so they have more energy to think about judicial issues.

It may be evidence that the Socratic method doesn't accomplish what it's supposed to, because you spend more time arguing with Socrates/Scalia/trolls than you do thinking for yourself.

[Nigel]

Is separation of powers an ideological issue in party terms ?

The dissent seems to be a disagreement with the majority in terms of how broad a precedent the decision might set - and if you read the footnotes, the majority rejects the analogy on which the dissent is based, and comes up with its own (more reasonable) one.
The dissent is a useful marker of neuralgic concern about the separation doctrine (and goes some way to usefully establishing a narrower application of the decision) ?

[Slartibartfast]

grammer won

While spelling lost?

[Countme-In]

Ouch!

That's OK. My proofreading required proofreading.