Supreme Court December sitting commences tomorrow (11/28/22) with a potentially blockbuster case in the caboose

Issue: Whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives … prescribed … by the Legislature thereof,” and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.

First of all. I do NOT expect the Supreme Court to unequivocally rule in favor of the Petitioners. If they did, it would literally be a bombshell bigger than Dobbs.

And it would be the wrong decision. State legislatures are subject to the constraints of their respective State Constitutions and the United States Supreme Court cannot strip away those constraints arbitrarily. And because State legislatures are constrained by their Constitutions, it follows that the several State Judiciaries can enforce those constraints.

However, I do expect the Supreme Court to limit the scope of State Judicial power and the remedies they may impose.

I also suspect they will void provisions relating to Independent Redistricting Commissions or permit State Legislatures to override those commissions.

Exactly WHERE the Supreme Court will draw the line I cannot say. I am confident they will not unequivocally rule for the Petitioners. I am equally as confident they will not unequivocally rule for the Respondents either. I suspect they will rule somewhere in the middle.

Other cases of interest:

Issue: Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.

Issue: Whether Bankruptcy Code Section 363(m) limits the appellate courts’ jurisdiction over any sale order or order deemed “integral” to a sale order, such that it is not subject to waiver, and even when a remedy could be fashioned that does not affect the validity of the sale.

This is the ongoing saga of the Sears bankruptcy.

Issues: (1) Whether state plaintiffs have Article III standing to challenge the Department of Homeland Security’s Guidelines for the Enforcement of Civil Immigration Law; (2) whether the Guidelines are contrary to 8 U.S.C. § 1226(c) or 8 U.S.C. § 1231(a), or otherwise violate the Administrative Procedure Act; and (3) whether 8 U.S.C. § 1252(f)(1) prevents the entry of an order to “hold unlawful and set aside” the guidelines under 5 U.S.C. § 706(2).

1 Like

Except the Constitution specifically mentions the authority of the legislature to make this decision. If it meant the Supreme Court, or the Governor of the state, it could have said that…or just stated that the authority lies with the state.

Please explain your use of the word caboose. Is that some SC slang?

It is simply the last case of the sitting. Caboose used to be the last car of a train. Archaic reference I admit. :smile:

1 Like

I wish there actually was a Blockbuster … I still have an old gift card…

tell us again, if the federal constitution says one thing and a state constitution something else… which one is void?

Both comments proceed from an excessively simplistic point of view and both fail in the premise.

The relationship of the United States and the several States is that of dual sovereigns. Both are governed ultimately by Constitutions. And it is the Constitutions of each sovereign that are supreme, not the institutions created by the Constitutions.

The United States Constitution delegates certain rule making authority to the State Legislature. But that delegation does not occur in a vacuum and the founders were quite aware of this. The Constitution clearly recognizes that States are dual sovereigns. As such, the basic layout of the State government and power of the legislature is subject to the State Constitution.

The Federal Government cannot unilaterally modify a State Constitution, except in the rare instance where civil rights or voting rights of individuals are violated. While it may delegate power to the State legislature, that grant of power is not either an expressed or implied carte blanche to violate the State Constitution while exercising that power. Several States have adopted Constitutional provisions that require the State Legislature to adhere to distinct standards in the drawing of Congressional and State Legislative districts.

These are Constitutional because at the end of the day, STATE LEGISLATURES ARE THE CREATION OF THE STATE CONSTITUTION. The State Constitution may rightfully regulate the conduct of the the entity it has created. Without the Constitution, there can be no Legislature and indeed the people could choose to change the Constitution to abolish one or both Houses of the Legislature, as was the case when Nebraska abolished its State House of Representatives and converted its State Senate to a single house legislature (the Unicameral).

The founders where well aware of this and INTENDED this when they set this nation up as a FEDERAL Republic, with dual sovereigns.

Simple common sense applies as well. Section 8 of Article I vests the following powers in Congress. But clearly that power vests in the United States as a whole. Congress enacts legislation, but the President actually carries the powers into effect after Congress has enacted statute and the Courts decide whether either overstepped their bounds.

It is the same with the vesting of rule making with State Legislatures. This vesting in no way changes the State Constitutional arrangement. The State Legislature enacts statute, the Governor carries it into effect and the State Courts decide if either has overstepped their bounds in accordance with the dictates of both the United States Constitution and their own State Constitution.

Section. 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; — And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

HOWEVER Which will be continued in the next post.


HOWEVER Continuing from previous post.

Provisions which forcibly strip the State Legislatures of redistricting power may very well be a step too far.

The United States Constitution does vest this power with the State Legislature and it is likely that ONLY the State Legislature could, by its own enactment, delegate this power to another body.

This also means that Judicial decisions that effectively rewrite redistricting plans may be a violation as well. Very narrow Judicial corrections, on the other hand, may be acceptable.

This is the area where the Supreme Court will have to draw the line.

1 Like

COVID…outranks the Constitution…according to some corrupt leaders and this needs to be settled.


And like that, the simplistic and precise statement of “the legislature thereof” becomes “the legislature or anybody and his dog thereof”. The writers of th constitution knew of the existence of state courts, and yet they did not leave open the possibility of the state giving this authority to those courts. The states agreed when they accepted the federal constitution.
I’m not saying the Supreme Court will rule based in that way, only that they should. They are good at finding penumbras when they don’t like the constitution.

Head out to Bend, OR, where the last remaining Blockbuster is still open.

Good news! There’s one remaining Blockbuster on earth.
Bad news … It’s in Oregon. Not bashing Oregon here, but it might be a tad inconvenient to use that gift card. You might try selling it on eBay…

Here is a case which I did not list in the OP, but which is of great importance. It was argued Monday morning.

Issue: Whether a private citizen who holds no elected office or government employment, but has informal political or other influence over governmental decisionmaking, owes a fiduciary duty to the general public such that he can be convicted of honest-services fraud.

The last link describes this morning’s oral arguments and the Justices (regardless of ideology) seem to be highly skeptical of the government’s arguments. It seems likely they will reverse the judgement of the Second Circuit and order the trial court to either dismiss Percoco’s conviction or issue a bench acquittal of Percoco.

I very much favor judgement in favor of Petitioner Percoco. As the Petitioner (and the Justices themselves) indicate, this law could be used to sweep in ordinary lobbyists for ordinary lobbying. I occasionally lobby on agricultural issues, so this case is of a very direct concern to me. Percoco was acting as a private citizen. As such, he cannot realistically commit honest service fraud.

1 Like

This one might be interesting.

The above article covers today’s very complicated oral arguments in United States v Texas.

The only thing that I would be confident of in this case is the court is likely to recognize that Texas and the other States have standing to bring this lawsuit.

Beyond that, it is a 100% crap shoot as to how the court will rule.

For well over a century from the nation’s founding the right of citizens to pursue a private prosecution of a public right was recognized … and now these fetid scumbags calling themselves “progressives” are so far corrupt that they want to remove even the hint that the States can challenge federal lawlessness.

1 Like