Open Thread: SCOTUS Release Day 2 of 2

This is an open thread focused on Supreme Court orders and decisions expected to be released today, Thursday June 23, 2022.

Check these Twitter accounts for more updates and analysis:

SCOTUS updates: – Updates

SCOTUSblog: – Analysis

Steve Vladeck: – Dedicated thread with updates and analysis

Chris Geidner: – Dedicated thread with updates and analysis

If you want to suggest any other Twitter accounts to follow for SCOTUS news and analysis, please share in comments.

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73 replies
  1. Rayne says:

    Absolutely must make it a priority to resize the court. The public should also be demanding Clarence Thomas step down. The decision in Bruen is absolute anarchy and ignores the ‘well regulated militia’ clause of the Second Amendment.

    • Bobby Gladd says:

      “ignores the ‘well regulated militia’ clause”

      They neutered that back in Heller.

      Even my constitutional hero Leonard Levy threw in the towel on “individual right.”

      Coming soon(?) SCOTUS rules that prancing around in cammies and Kevlar with a loaded AR15 is not only 2A protected but is also A1-protected “free expression.”

      • Rayne says:

        Scalia’s clerks have written about Heller being misconstrued. I’m not buying the clause is gone because the entire right to own a firearm is predicated not on self-protection but on the ability of the nation to muster arms in lieu of a standing army.

        And Thomas, whose wife has actively worked to overthrow our government, is furthering her efforts with the elimination of that predication. Thomas needs to resign or be removed.

    • ernesto1581 says:

      “The decision in Bruen is absolute anarchy ”

      that’s it. and alito’s concurrence re: buffalo is absolutely disgusting.

    • Marc in Denver says:

      OT/Topic adjacent: I went to Law School with the named Respondent in that case, Kevin Bruen

  2. harpie says:

    [Shout out to Ginevra diBenci!]
    11:11 AM · Jun 23, 2022

    The NRA got to help pick Trump SCOTUS picks, Anne Nelson said on Al Franken podcast. So we see.

    6/19/22 The Al Franken Podcast:
    Author Anne Nelson on the 60-year history of the vast right-wing shadow network
    Nelson lays out how this all brought us to January 6th.

    [Sorry I messed something up, Rayne. :-(]

    • harpie says:

      [I think everything after the ? can be deleted…sorry, I’m not familiar with podcasts] The actual interview begins at [7:30].

      [Everything after the ? identifies the specific podcast you’ve referred to; without everything after ? one’s browser will go to the main podcast page with all of Franken’s current and past podcasts. :-) /~Rayne]

    • Rayne says:

      He’s an American Monster™. He did us one slight favor with his remark about the Buffalo mass shooting and the state law not deterring it — he told us in essence the state law restricting hand guns which are for personal protection did not deter the use of an assault weapon.

      New York and all states should ban weapons which were designed for military use, like the AR-15, because it’s not for personal protection. This should include any weapons now labeled for sporting use if arising from designs for military use.

        • Rayne says:

          Exactly. They were never designed for personal protection but for use by the military to replace the M14.

        • Pete T says:

          I am know I am pissin’ in the wind here, but doesn’t an originalist/textualist reader of the Constitution takes – and here is where I may error – what was intended based on what existed in the time of writing. I mean “keep and bear Arms” in circa 1791 could not have foreseen the military style weapons of today based on what they had back then.

        • bmaz says:

          Heh, originalism and textualism are meaningless words. It’s just cover for SCOTUS doing whatever they want.

        • Tom says:

          I don’t think the Founders would have much difficulty understanding how modern firearms work. Despite the technological advances over the past 200-plus years, the basics are still a projectile fired from a metal tube by means of an explosive propellant charge.

          But I also think the Founders would be shocked at the amount of firepower the average citizen is allowed to possess these days, and appalled at the current level of gun carnage across the country. Washington and his colleagues were conservative men who devised the Electoral College because they didn’t trust the voters to directly elect the President. It’s difficult to imagine them holding that position on voting and at the same time thinking it’s fine and dandy for an 18-year-old to be able to walk into a gun shop and buy an AR-15.

        • Rayne says:

          Some ass argued with me recently there were automatic weapons which fired multiple rounds during the early days of the nation — a puckle gun which could fire nine rounds a minute.

          Except the damned thing was a flintlock revolver loaded manually with powder and shot or musket balls intended for naval use, and never became a commercial product.

          The founders would be aghast every day individual citizens possessing more firepower than their local militia members combined.

        • Tom says:

          I don’t think I’ve ever heard of the puckle gun. Thanks for the reference. It sure sounds like it was a fuckle of pun … er, puckle of fun … and they manufactured a grand total of two of them!

        • nord dakota says:

          There was a grammarian/historian amicus brief to Heller that explained all this perfectly, including the use of weapons at the time as well as grammatical practice. These guys don’t now HOW to be “originalist”. You don’t even have to foresee weaponry technology to realize they are wrong. They would have been wrong in 1789.

        • Bobby Gladd says:

          Scalia held in his Heller opinion that the “militia” thing was one valid justification, just not the ONLY one. To be fair, on page 22 he notes that the second amendment, just like the first amendment, is not “absolute.” Nonetheless, I would fully expect the assault weapons crowd to argue that they need their A.R. 15’s to fulfill their Second Amendment responsibilities. In addition to personal, home protection.

        • Raven Eye says:

          …and protection against the federal government.

          That’s a serious motivator for millions of them.

        • Pete T says:

          May there never be a civilian derivative of the new US military adopted XM5 6.8mm combat rifle.

          South Florida seems to have had a rash of full auto AK-47 drive byes in the last few months. It’s pretty insane.

        • Raven Eye says:

          “May there never be a civilian derivative of the new US military adopted XM5 6.8mm combat rifle.”

          Oh, there will be. Too much money to be made selling it to those needing male performance enhancement. But if there is a “retail” version, will have a longer barrel. The military version has a shorter barrel because of the suppressor, and thus needs significantly higher breech pressures to get enough velocity. The retail version could use a “reduced” load and all-brass case (necked down .308).

          Tangentially…The wing nuts are already blaming Biden for reducing the civilian 5.56 ammo produced at Lake City Army Ammunition Plant. These idiots probably know nothing about how Government Owned Contractor Operated GOCO) AAPs function. But if Lake City had to convert lines to the new bi-metal cartridge and make billions of rounds to field the new rifle, there is going to be less 5.56 NATO manufactured. Plain truth.

        • Anonymouse says:

          Check out the Paratus from DND Tactical. You can order it in a small backpack case or in a small Pelican waterproof briefcase. The rifle and a handful of 30 round clips all fit inside a small regular backpack.

      • gmoke says:

        I thought it was one man, one AR-15 now.
        Isn’t that in the Constitution?

        120 guns for every 100 people in USAmerica and 3% of gun-owners own half of all the guns.

        • Marc in Denver says:

          Which is 40 guns per person in that 3%. So those gun hoarder photos are basically the average gun-hoarder.

        • Peterr says:

          When I think about the hunters I know, most of them own more than one gun. “I use this one for squirrels, that one for deer, this one for clay pigeons, that one for elk, . . . ” Many of them also have what I’ll call “heirloom guns” that belonged to their grandfather or their great-grandmother back in the day, and have been passed down along with all kinds of other family heirlooms. They don’t have ammo for them, have never fired them, and don’t intend to fire them, but they hold onto them the way they hold on to other items passed from one generation to the next, along with all the stories that went with them.

          I’m not trying to say that the number of guns being waved around is just fine — it’s not — but simply pointing out that when you say 120 guns for every 100 people and equate that with one man, one AR-15, you are misrepresenting what those statistics illustrate.

        • Rayne says:

          This is one of those times when I’m going to take issue with the heirloom theory. My household has and will have heirlooms, but we’re talking about deer rifles and shotguns used for bird hunting — in all, three weapons which are used each year for obtaining our annual venison and game bird supply.

          This is the problem owner, the kind of owner of whom gmoke is likely thinking:

          This guy is like my uncle, who let my aunt go without a bunch of simple comforts during her last decade battling with cancer, while amassing a collection of 100 guns. He liked to shoot mice in his backyard with a .44 from the bathroom window for grins. None of his now-adult children hunt.

        • Peterr says:


          There are both folks like your uncle and folks like my parishioner who has Great Grandma’s gun hanging proudly over her fireplace, flanked by some other relative’s muzzle-loading pistols.

          I was simply trying to dial back gmoke’s 120 guns/100 people = 1 AR-15/person rhetoric.

        • P J Evans says:

          We had one that belonged to a great-great-grandfather, a Civil War casualty (Confederate raiders). My brother, to whom my father left it, donated it to a museum rather than have it in his house. (Sis and I both would have taken it, but we live in apts.) I have photos….

      • Purple Martin says:

        Common winger talking point is that assault rifle bans are impossible because the term is undefinable. When I see that, I helpfully point out the gun industry helpfully gave their semi-automatic knock-offs of the military assault rifle a distinctive name—the “Modern Sporting Rifle” which may be defined as a long gun designed with two primary characteristics.

        1) Trade-off *accuracy* (especially the ability to hit small, single, static targets at long range), in favor of attributes promoting *agility*—the ability to hit multiple, human-sized moving targets at medium to short range.
        2) Look scary and menacing, like it is meant to violently kill people. Usually this takes the form of sharp angles, cooling fins, unnecessary molded plastic cladding, stark cut-away stocks, ‘open-eyes’ optical assist sights, etc.

        That specific Assault Rifle characteristic—look menacing—may provide the best explanation of its sales popularity. A weapon designed to look like it is meant to violently kill people, to look scary and threatening, purposefully attracts people who feel compelled to buy threatening items, who feel a need to be perceived by other people as threatening and dangerous. From various nutty political candidates, to unstable 18-year-olds, to everyone pictured on the Massie family Christmas card, there seems to be no shortage of such people in America today.

        As a thought exercise, should the desire to possess a Modern Sporting Rifle be considered a valid factor in identification of people prohibited from legally own a firearm? Personally, I think the assault weapon ban—once found not to be in violation of the Constitution but perhaps no longer—is a better idea then registering and tracking the Menacing Massies and angry loners about to turn 18.

        • Rayne says:

          Was the device originally designed for use by the military? That seems to be the easiest attribute to distinguish a weapon for personal protection or not, versus use by a militia or standing army. And if the Supreme Court is going to try to ignore the “well regulated militia” clause, lean hard into it by distinguishing which arms are the province of the militia/military and not for use by the average citizen.

          The tracking of angry loners under red flag laws not only tracks humans rather than property, but it has a dark flip side as well: what happens when that record of angry loners is weaponized by breach or other method?

        • Peterr says:

          As the church-state case from Maine illustrated earlier this week, SCOTUS has no problem ignoring the initial clause of an amendment in order to exalt a subsequent phrase to the point that the first phrase is all but dead.

        • Purple Martin says:

          Alas, narrow, specific definitions were one of the downfalls of the original assault weapon ban. Gun manufacturers got really good at creating Modern Sporting Rifles that fell just short of the legislative definition, or that could be home-modified back to the banned version, as the Buffalo shooter, per AP article:

          …admitted to illegally modifying the weapon in another way [following a YouTube tutorial to use] his father’s power drill to remove a state-mandated lock that prevented the attachment of magazines with more than 10 rounds of ammunition.

          Many manufacturers offer a $500 entry-level Modern Sporting Rifle chambered for rim-fire .22 caliber cartridges—something with no military use whatsoever. They typically start with a cheap .22 semiautomatic and add ‘tailfins’ to attract the ‘look menacing’ but low-income demo.

          I agree with you on the “dark flip” implications, and hence favor a ban of the center-fire, semi-automatic, Modern Sporting Rifle over my other Modest Proposal.

  3. Doctor Cyclops says:

    What makes the Sullivan Act so objectionable is the discretion given to the issuing authority. If you are Arthur Ochs Sulzberger or TFG, you are eligible, but a retiree in the south Bronx is out of luck.
    Connecticut is a “shall issue” state: our constitution provides that “Every citizen has the right to bear arms in defense of himself and the State.” Yet we have enacted a permit requirement for the purchase of any firearm or ammunition, a ban on high-capacity magazines, a workable red-flag law, and an [admittedly flawed] assault-weapons ban.
    Reasonable gun control is not inconsistent with the right to arms. The problem is that the politicians and lobbyists depend for their donations upon prolonging, not solving, the conflict.

  4. earlofhuntingdon says:

    Every right legitimately to be found in the Constitution must be steeped in historical tradition? The Court’s radical right wing seems mired in a past that privileges rich white men, living atop an apex built on servitude, sexism, and slavery.

    If that’s the touchstone, then every weapon in America should be a black powder muzzle loader, Alito should arrive at the Court in a litter carried by four slaves, one of whom would be Thomas, the rest of them should arrive via horse, and the women on the Court should clean house and prepare food, not worry their pretty little heads by reading too much.

        • bmaz says:

          It already looks to be worse than imagined. If that Alito draft is even close to the final product, I am not sure how women get very much healthcare at all since everything can affect potential to conceive and/or birth. It is moral sickness that is being engendered.

    • Raven Eye says:

      I hear the argument that rejects the evolution of weapons technology, but I don’t find the black powder reference compelling. Weapons technology has always evolved since my many-times-great-uncle Thog figured out that a pointy stick was better than just any old stick.

      The well-organized militia thing still vexes me, and probably because I am not aware of any governor operationalizing their authority as commander of the state militia. A commander (or commander in chief) has responsibilities and authorities regarding the type, caliber, and condition of weapons, use of force, training, etc.

      In a previous life I had to regularly demonstrate a level of marksmanship using an armorer-approved weapon, and an understanding and demonstration of federal use of deadly force requirements (and, potentially, situationally-based rules of engagement).

      It would be a very heavy lift for a governor, so maybe it just isn’t inside the “possible” frame.

      • earlofhuntingdon says:

        The issue is what is this radical majority willing to find and defend in the Constitution. According to its logic – but not its intent – modern weaponry is not included. Hypocrisy and intellectual deceit, thy names are legion.

        • Raven Eye says:

          Originalism seems to allow cherry-picking of historical references that sorta sound like something in the Constitution — used as an excuse to make stuff up to match whatever weird-ass theory you have?

          That notwithstanding, in the back of Thomas brain is there some idea that the Brown Bess was the technology of the Revolutionary period and the establishment of the national government. That “thinking” allows his consideration of AK/AR rifles as an equivalent technology when applying the originalist’s Constitution and government authority to the modern situation: The technology always moves forward (time only goes one way) but the authority of the Constitution is locked to the old technology in the world of the current technology.

          In that case, how can originalism ever work?

      • Molly Pitcher says:

        The Second Amendment was written in 1789.

        The bullet was invented in 1847.

        So if you really want to be an originalist, you can join a militia in aide of the government with your musket and your black powder horn. Otherwise you are packing outside the parameters which were drawn in 1789

    • earlofhuntingdon says:

      This radical majority is living in an ante-bellum mansion. It doesn’t care where the food, protection, wealth, and manicured lawns come from, and doesn’t want anyone else to ask.

  5. The Old Redneck says:

    Even that purported reliance on historical tradition is transparently garbage because, as the majority says, “when it comes to interpreting the Constitution, not all history is created equal.”
    Let’s be clear about what that statement means: we’ll cite the history which drives us to our predetermined conclusion, and ignore all the rest.

    • Bobby Gladd says:


      Another thing that cracks me up about what I call “Ouija board jurisprudence,“ — I would find it totally unsurprising to have some lawyers argue that even certain constitutional amendments themselves are “unconstitutional“ on textualism grounds. “History and tradition“ stuff (as gleaned from the “pertinent” texts) must rule. And, as you point out, “history“ stuff should be an empirical matter, but seems to be more of a cherry picking, confirmation bias thingy.

  6. harpie says:

    ot [sorry, but] just before today’s hearing:
    Jeffrey Clark’s home searched by federal agents:
    12:52 PM · Jun 23, 2022

    BREAKING – Federal agents searched the Virginia home of former Trump-era Justice Department official Jeffrey Clark on Wednesday morning, according to multiple sources with direct knowledge of the activity. Story coming from me […]

    > Feds search home of former DOJ official tied to Trump’s efforts to overturn election
    Clarke had sought to have Georgia investigate Joe Biden’s victory in the state. June 23, 2022, 12:53 PM

      • Raven Eye says:

        He must have had some hints dropped within the past few days. You don’t operate at that level without good networking. But on the other hand, he has seemed to operate in his own special little bubble. And deviant behavior, repeated, becomes normal behavior.

    • Raven Eye says:

      What a maggot. If reports of that Oval Office session are true, Clark set it up structured as a hiring/onboarding negotiation. You make me AG and I’ll send these letters to some states.

  7. paper says:

    i have a fantasy in which 20-30 years from now a different SCOTUS says, over and over, “lol, that decision? overturned.”

  8. silcominc says:

    Over the past forty years, we have seen the biggest giveback to the elite from the average American. SCOTUS has led the charge to give corporations and special interests all the power and remove it from regular Americans. Now, America is where Corporations have more inalienable rights than individual Americans and local governments have been stripped of their ability to regulate their lands. And there is no longer a separation of church and state. They got what they wanted but we have to live here.

  9. Makeitso says:

    A line that will live in infamy:

    The Second Amendment “is the very product of an interest balancing by the people” and it “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense. – Clarence Thomas today

    I cannot even snark that.

    • Raven Eye says:

      So how does Justice Thomas intend that we determine what “…law-abiding, responsible citizens…” are?

      Is that just a random remark, or a capstone argument that can be operationalized by state governors and legislators?

      • Makeitso says:

        Beats me. He also wrote this gem:

        Thus, even if these colonial laws prohibited the carrying of handguns because they were considered “dangerous and unusual weapons” in the 1690s, they provide no
        justification for laws restricting the public carry of weapons that are unquestionably in common use today.THOMAS

        • Raven Eye says:

          Statements like that make my eyes go out of focus.

          My shot-in-the-dark (not sure I should say that) suggestion is that state legislatures enact statutory criteria that allow for determining whether state residents are “law-abiding and responsible”. “Responsible” could include marksmanship, liability coverage, training and testing on shoot/no-shoot situations, etc.

  10. punaise says:

    Not sure where to plop this, so I will lean on the “open thread” aspect of this one.

    Non-attorney Josh Marshall is out with a piece that will probably give bmaz conniption fits. I don’t think it is in the paywalled area.

    The DOJ is now escalating its claims that the Jan. 6th Committee is stymieing and endangering its prosecutions, particularly the seditious conspiracy charges against the Proud Boys and other violent domestic extremist groups. All of this strikes me as the weakest kind of blame-shifting crap.

    There may be a deeper story we don’t know. But on its face it looks like the committee’s hearings are pushing the DOJ to move more aggressively. DOJ officials are now somewhat lamely tossing out these complaints to make it seem like it was the committee slowing them down all the time.

      • Troutwaxer says:

        Yeah, first hearing, the DOJ got a million phone calls saying, “Why aren’t these folks in jail?” So suddenly they want what the committee has, because the committee came a lot closer to starting at the top and working down…

  11. OldTulsaDude says:

    And when can we expect the SCOTUS to resurrect dueling as a cost-saving and business friendly (think Funeral Directors and mortuary owners) alternative to civil courts?

  12. Anonymouse says:

    Cant wait to leave some churches the same way that they left my rights. In a pile of ashes.

    [Avoid incitement or encouragement of violence. It’s not permitted here. /~Rayne]

  13. LaMissy says:

    Seen on the interwebs:

    Stop saying the system held.
    It didn’t hold. The Supreme Court fell.

  14. wetzel says:

    Here is a tantalizing, uncorroborated piece of reporting at Politico. Forgive me for writing a longer comment to summarize the piece and give my thoughts which are unfounded because it may not have happened.

    The British documentarian Holder traveled with then-President Trump on Sunday, Oct. 25 nine days before Election Day on Air Force One. A planned interview was nixed, according to Holder’s recollection, Mark Meadows told him, Trump was on a phone call with Putin.

    “My memory is,” Holder told us, “that the chief of staff sort of came over and said that the interview couldn’t happen today because the president was on the phone. And I believe, if I remember correctly, that he said that he was on the phone to the president of Russia, VLADIMIR PUTIN, which is why the interview had to be postponed.”

    My personal belief is that the Jan 6 coup happened at the nexus of at-home fascism and Russian active measures that were bearing fruit. Putin called to threaten a compromised President a week before the election. Maybe this didn’t happen, but I think Putin’s absolute plan for success in invading Ukraine depended on Trump. Trying to understand how Trump could imagine seizing and holding power. How were we supposed to become a fascist state? Who was making the path? The Jan 6 coup can’t just be Trump’s ego-defensive panic. I can’t believe amoral GOP operatives coalesced out of the blue. Whether the planning impetus was from home or from Russia, Trump was not the originator. Trump was the vehicle for an attempt.

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