The Saving Construction in NFIB and the Anti-Saving Construction in Learning Resources
Every delay has consequences.
Blackman is still having a meltdown over the tariff ruling. He's now suggesting there were six votes in the government's favor because three liberal justices didn't rely on MQD. Shortly after the oral arguments he said there were at least five votes to reverse, so now he's essentially claiming, "I wasn't wrong -- the justices refused to acknowledge Trump won."
Three justices clearly found that the "straight-up" reading of the statute, without the major questions doctrine, supports the government: Kavanaugh, Thomas, Alito. Three justices would have necessarily needed to find that the "straight-up" reading of the statute, without the major questions doctrine, supports the government: Roberts, Gorsuch, Kavanaugh. I count six votes for this position. Three justices found that the statute can be read, under the major questions doctrine, to support the plaintiffs: Roberts, Gorsuch, and Barrett.
Six should beat three. So why was this case a reversal? The simple answer is that Justice Kagan, Sotomayor, and Jackson stated that they concurred in the judgment. But concurring in a judgment does not create a judgment. The judgment should be determined based on which interpretative position garners the most votes. Here, there are six votes to reject the lower court's reasoning on the statute. This is not a case like Marks where no single interpretive position garners a majority. There is a majority, but the Justices do not wish to acknowledge it. You cannot turn a dissent into a concurrence by labelling it as concurring in judgment. Here, a majority of the Court squarely rejected the plaintiffs' statutory argument, and only three members adopted the plaintiffs' backup argument under the MQD. Why did the government lose?
Every delay has consequences.
Blackman is still having a meltdown over the tariff ruling. He's now suggesting there were six votes in the government's favor because three liberal justices didn't rely on MQD. Shortly after the oral arguments he said there were at least five votes to reverse, so now he's essentially claiming, "I wasn't wrong -- the justices refused to acknowledge Trump won."
Three justices clearly found that the "straight-up" reading of the statute, without the major questions doctrine, supports the government: Kavanaugh, Thomas, Alito. Three justices would have necessarily needed to find that the "straight-up" reading of the statute, without the major questions doctrine, supports the government: Roberts, Gorsuch, Kavanaugh. I count six votes for this position. Three justices found that the statute can be read, under the major questions doctrine, to support the plaintiffs: Roberts, Gorsuch, and Barrett.
Six should beat three. So why was this case a reversal? The simple answer is that Justice Kagan, Sotomayor, and Jackson stated that they concurred in the judgment. But concurring in a judgment does not create a judgment. The judgment should be determined based on which interpretative position garners the most votes. Here, there are six votes to reject the lower court's reasoning on the statute. This is not a case like Marks where no single interpretive position garners a majority. There is a majority, but the Justices do not wish to acknowledge it. You cannot turn a dissent into a concurrence by labelling it as concurring in judgment. Here, a majority of the Court squarely rejected the plaintiffs' statutory argument, and only three members adopted the plaintiffs' backup argument under the MQD. Why did the government lose?
The Saving Construction in NFIB and the Anti-Saving Construction in Learning Resources
Every delay has consequences.
Blackman is still having a meltdown over the tariff ruling. He's now suggesting there were six votes in the government's favor because three liberal justices didn't rely on MQD. Shortly after the oral arguments he said there were at least five votes to reverse, so now he's essentially claiming, "I wasn't wrong -- the justices refused to acknowledge Trump won."
Three justices clearly found that the "straight-up" reading of the statute, without the major questions doctrine, supports the government: Kavanaugh, Thomas, Alito. Three justices would have necessarily needed to find that the "straight-up" reading of the statute, without the major questions doctrine, supports the government: Roberts, Gorsuch, Kavanaugh. I count six votes for this position. Three justices found that the statute can be read, under the major questions doctrine, to support the plaintiffs: Roberts, Gorsuch, and Barrett.
Six should beat three. So why was this case a reversal? The simple answer is that Justice Kagan, Sotomayor, and Jackson stated that they concurred in the judgment. But concurring in a judgment does not create a judgment. The judgment should be determined based on which interpretative position garners the most votes. Here, there are six votes to reject the lower court's reasoning on the statute. This is not a case like Marks where no single interpretive position garners a majority. There is a majority, but the Justices do not wish to acknowledge it. You cannot turn a dissent into a concurrence by labelling it as concurring in judgment. Here, a majority of the Court squarely rejected the plaintiffs' statutory argument, and only three members adopted the plaintiffs' backup argument under the MQD. Why did the government lose?
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