How the Media Lied About Chevron Deference and the Supreme Court | Sarah Isgur and David French

Kannon Shanmugam and his summer associates return to Advisory Opinions to look back on the SCOTUS term and discuss the state of “text, history, and tradition.”
The Agenda:
-Big themes from this SCOTUS term
-Was this the administrative law term?
-Should we stop thinking about SCOTUS “terms”?
-The health of the First Amendment
-“The media now owns Amy Coney Barrett”
-Justice Thomas’ dissent in Rahimi
-Sarah’s summary of this term
-Questions from summer associates
To get show notes:
thedispatch.co...
#law #supremecourt #politics #politics

[@jem7636]

I am not as familiar with legal doctrine as David and Sarah. However, I did minor in history and have studied it as a hobby for over 50 years. I think many people believe history is objective and unchanging. Both assumptions are incorrect. History reflects the views and desires of society. The history books I read in high school had lost cause and white supremacy themes (i.e. How reconstruction and U.S. Grant is treated has changed enormously). History is also influenced by new discoveries and methods of inquiry. For example, statistical historic analysis was very rare 50 years ago.
Historical analysis is not a hard science, but it is a skill that can be learned and developed (similar to legal analysis). There is no reason to believe that judges have that skill (none of the federal judges I am aware of have post-graduate history degrees). The reaction of actual historians to Supreme Court use of history has been dismay. Even historians cited in cases invariably think the justices misused and misrepresented their work.
Two implications originalists have not considered are the impact of historical theory changes and what historians are. History professors are much more liberal on average then law professors (there is no federalist society network in history). Now that the courts are using their work, more historians will produce liberal works relevant to legal questions (for example in the explosion of research in gun control history). In addition, historians are constructing versions of history that liberals can use. Future liberals (when they have the numbers) can use the liberal history to overturn conservative history.
I remember a history professor saying the only historical universals are "it's complicated and it depends."

[@scottpandich3972]

As I said in response to another one of these videos, it feels like if you look at the administrative cases and the immunity case together, what you see is the Court trying to reinforce the separation of powers. In the administrative cases, the Court is saying the executive branch cannot undermine the power of the legislative and judicial branches by interpreting existing laws to give itself more de facto lawmaking power, while in the immunity case the Court is saying the legislative and judicial branches cannot undermine the power of the executive branch by criminalizing legitimate exercises of executive power.
Basically, they're saying everyone needs to stay in their own lane, and from that perspective, I guess the Section 3 of the 14th Amendment case also kind of fits, with the Court saying that, no, states can't act on their own on this; Congress has to set the rules.

[@rustyrebar123]

The court feels more 3-3-3 to me than 6-3

[@VirginiaBronson]

Couldn’t help but notice y’all didn’t mention Grant’s Pass, allowing for criminal penalty of homelessness, which is truly evil. But that doesn’t fit your preferred narrative…

[@rustyrebar123]

Not so sure that is really an accurate description of it, but everyone has an opinion I guess.

[@VirginiaBronson]

@@rustyrebar123 sure, if you want to get into the weeds of it, what the Supreme Court did was allow criminal penalty for sleeping outdoors. The practical impact is that they criminalized homelessness. The practical impact is really all that matters.