Supreme Court Decisions

The Supreme Court issued two critical rulings. Although I am liberal I have always been pro-life and believed in self-defense. In the Bruen case the Supreme Court ruled that: 

"New York’s proper-cause requirement for obtaining an unrestricted license to carry a concealed firearm violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms."

If you wanted to conceal carry a firearm in New York--most notoriously New York City--the authorities could require that you proved "proper cause."  

If the state didn't like guns, didn't think people of a certain race should have guns, or just didn't like you, then the state could deny you a concealed carry permit. The Court decision changes the "may issue" standard to a "shall issue" standard. New York must have objective criteria for concealed carry. People who dislike guns claim this decision will result in greater carnage. 

Most other states including my own have "shall issue" standards. Legally armed conceal carry people are not the people murdering folks. 

Judge (Justice) Amy Coney Barrett and Liberal Despair

Judge Amy Coney Barrett moved one step closer to being confirmed as the newest Associate Justice on the Supreme Court. The Democrats on the Judiciary Committee claimed that the entire process was illegitimate and boycotted the final Committee vote. The Democrats argued that Committee rules required at least two members of the minority party to participate in order to have a quorum and conduct business. 

The Republicans said they didn't see it that way and proceeded to vote anyway. The result was that the vote was 12-0 to move Judge Barrett's nomination to the full Senate for a confirmation vote. Barrett could thus be confirmed as soon as Monday, barring some sort of last minute unforeseen stumble. Maybe someone will come out of the woodwork on Saturday or Sunday to claim that in the third grade Judge Barrett kissed him against his will and gave him cooties. That seems to be quite unlikely to say the least.

This made the Democrats so mad that they could just spit. They have no way to stop Barrett's confirmation. They have also realized belatedly that the Republicans, or at least a sizable minority of them, frustrated by what they've seen as liberal courts since at least the 60s if not before, have reached what they certainly hope will be the apotheosis of a multi-decade conservative effort to seize control of the courts back from liberal judges.

So many liberals, angered and frightened by the idea of 6-3 or 5-4 conservative Supreme Court decisions for the forseeable future and in particular the idea of a decision that overturns or further limits Roe v. Wade have floated ideas to limit the power of this reinvigorated conservative court. Some of these are silly or unconstitutional and just won't happen. Others are viable but come with their own risks.

Judge Brett Kavanaugh: Attempted Rapist???

Do you remember what you doing in high school? You probably do if like the fictional Al Bundy, from the sitcom Married with Children, high school turned out to be the high point of your life. Many of us however may start to forget some details of our high school career, especially once we get beyond our thirties or forties and/or move away from where we went to high school. 

So it goes. But if in high school you were a victim of attempted rape or assault or you committed a rape or sexual assault, I think you would probably remember that. Unfortunately, for those of us who weren't there, it is difficult if not impossible to discover the truth when one person accuses another person or persons of sexual assault thirty some odd years after high school. 

That is what happened to Judge Brett Kavanaugh, Trump's nominee for the Supreme Court seat vacated by Justice Kennedy. An anonymous constituent of Democratic Senator Dianne Feinstein apparently sent Feinstein and her Congresswoman a letter in July accusing Kavanaugh of attempted rape in the early eighties. Feinstein didn't share this letter with her colleagues until a few days ago.  On Thursday she referred the matter to the FBI. 
On Thursday, Senate Democrats disclosed that they had referred a complaint regarding President Trump’s Supreme Court nominee, Judge Brett Kavanaugh, to the F.B.I. for investigation. The complaint came from a woman who accused Kavanaugh of sexual misconduct when they were both in high school, more than thirty years ago.

Supreme Court Justice Anthony Kennedy Retiring

Anthony Kennedy, who often served as a swing vote on what otherwise would have been a solidly right-wing Supreme Court, is retiring. President Trump will get to make a second nomination to the Supreme Court. Both Kennedy and Roberts have occasionally fallen short of doctrinaire right-wing positions, so expect that conservatives will pressure Trump to select a replacement who is someone more trusted to vote as conservatives might expect a conservative justice to vote.  If Kennedy's replacement is in his or her forties or fifties then they could conceivably be on the Supreme Court for another thirty or forty years.

Democrats will make a fuss about this but right now they lack the muscle to stop it. The real shift in the court may come about if Trump is able to replace someone like Ginsburg or Sotomayor. It is a testament to how far the judiciary has shifted to the right that some liberals will be sad to see Kennedy depart. 

WASHINGTON — Justice Anthony M. Kennedy announced on Wednesday that he would retire, setting the stage for a furious fight over the future direction of the Supreme Court. Justice Kennedy, 81, has long been the decisive vote in many closely divided cases. His retirement gives President Trump the opportunity to fundamentally change the course of the Supreme Court. A Trump appointee would very likely create a solid five-member conservative majority that could imperil abortion rights and expand gun rights. Justice Kennedy’s voting record was moderately conservative. 

He wrote the majority opinion in Citizens United, which allowed unlimited campaign spending by corporations and unions, and he joined the majority in Bush v. Gore, which handed the 2000 presidential election to George W. Bush. He also voted with the court’s conservatives in cases on the Second Amendment and voting rights. But Justice Kennedy was the court’s leading champion of gay rights, and he joined the court’s liberals in cases on abortion, affirmative action and the death penalty.

LINK

Supreme Court Upholds Trump's Travel Ban

As I long suspected and as this blog's legal expert predicted :" However, as it stands, the courts have basically taken the position that Presidents can freely use Section 212(f) as they see fit, so it is unlikely that Trump will lose this battle on the merits in the long run." the Supreme Court upheld Trump's travel ban. So that is that. 

WASHINGTON — President Trump acted lawfully in imposing limits on travel from several predominantly Muslim nations, the Supreme Court ruled on Tuesday. The vote was 5 to 4, with the court’s conservatives in the majority. The court’s decision, a major statement on presidential power, marked the conclusion of a long-running dispute over Mr. Trump’s authority to make good on his campaign promises to secure the nation’s borders. 

Just a week after he took office, Mr. Trump issued his first travel ban, causing chaos at the nation’s airports and starting a cascade of lawsuits and appeals. The first ban, drafted in haste, was promptly blocked by courts around the nation. A second version, issued two months later, fared little better, although the Supreme Court allowed part of it go into effect last June when it agreed to hear the Trump administration’s appeals from court decisions blocking it. But the Supreme Court dismissed those appeals in October after the second ban expired.

LINK

The Supreme Court may have gotten this wrong, though I don't think they did. I am no lawyer or legal expert. But to paraphrase a saying the Court is not supreme because it is always right; it's supreme because it's final. If Congress wishes to do so it can write a law to remove such authority from the current President and all future ones. We should remember that Trump, like Obama before him, will not be the United State's last President. 

Supreme Court Decision : Ohio Voting Rolls

If you live in Ohio, skip a few elections, and don't respond to state inquiries, you will be purged from the voting rolls. And the Supreme Court agreed that there's no problem with this.

WASHINGTON — The Supreme Court on Monday upheld Ohio’s aggressive efforts to purge its voting rolls. The court ruled that a state may kick people off the rolls if they skip a few elections and fail to respond to a notice from state election officials. The vote was 5 to 4, with the more conservative justices in the majority. The case concerned Larry Harmon, a software engineer and Navy veteran who lives near Akron, Ohio. He voted in the 2004 and 2008 presidential elections but did not vote in 2012, saying he was unimpressed by the candidates. He also sat out the midterm elections in 2010 and 2014. 

But in 2015, Mr. Harmon did want to vote against a ballot initiative to legalize marijuana and found that his name had been stricken from the voting rolls. Ohio is the only state that commences such a process based on the failure to vote in a single federal election cycle,” said a brief from the League of Women Voters and the Brennan Center for Justice. “Literally every other state uses a different, and more voter-protective, practice.” The United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled in favor of Mr. Harmon in 2016, saying that Ohio had violated the National Voter Registration Act of 1993 by using the failure to vote as a “trigger” for sending the notices.

A Reuters study in 2016 found that at least 144,000 people were removed from the voting rolls in recent years in Ohio’s three largest counties, which are home to Cleveland, Cincinnati and Columbus.

Neil Gorsuch: Should Democrats Fight or Roll Over?

President Donald Trump, and it still feels funny writing that, nominated Neil M. Gorsuch, Appeals court judge from the 10th Circuit, to serve on the Supreme Court. Gorsuch would replace the late Antonin Scalia and restore the Supreme Court to its full roster of nine justices. Gorsuch, is by the estimates of most of those who work or teach in the legal filed, or observe it closely, quite qualified. He has the requisite Ivy League education, pedigree and connections, clerkships, experience and judicial decisions that many would agree that you want in someone who is being considered to serve on the Supreme Court. Most people on the conservative side are predictably thrilled. They see Gorsuch as someone with the intellectual chops of Scalia and the same dedication to conservative outcomes. Of course they would claim that Gorsuch is only correctly applying the law as written. Even some liberal legal scholars are singing the praises of Gorsuch, stating that he's beyond reproach and actually someone even people who may not politically agree with Trump should nonetheless support.

Just as predictably some people on the left are saying that Gorsuch is a bad choice. And they can point to opinions or statements which would certainly back up their stance. In some respects this is all neither here nor there. Trump was not going to nominate a liberal justice. The only concern that many conservatives have is that Gorsuch doesn't turn into a David Souter-i.e. someone nominated and supported by conservatives who reveals himself on the bench to be a less than reliable conservative vote. Most conservatives seem to think that that won't be the case. Under normal conditions it would probably not be worth having a fight over Gorsuch, especially since he's replacing a conservative voice on the Supreme Court, not a liberal one.

Supreme Court Justice Antonin Scalia Dies at Age 79

Justice Antonin Scalia, arguably the United States Supreme Court's most conservative Justice, was apparently found dead today in Texas:

Per NY Post:

Associate Justice of the Supreme Court Antonin Scalia was found dead Saturday on a luxury resort in West Texas, federal officials said.

Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa. MySanAntonio.com said he died of apparent natural causes.

Scalia arrived at the ranch on Friday and attended a private party with about 40 people, the website of the San Antonio Express News said. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body

Obviously, this has huge implications not only for the current make up of the Supreme Court (which until Scalia's death was a 5-4 conservative majority), but it also places the issue of appointing a Supreme Court Justice front and center in this 2016 Presidential election at a time when things were already beginning to heat up.

Before we address the impact of Scalia's death on the current Political climate, let us take a brief moment to look back at the man, Antonin Scalia.


Scalia was born in Trenton, New Jersey in 1936 to Italian immigrant parents.  He attended the prestigious Xavier High School in New York City where he emerged as a brilliant scholar, and later went on to graduate with honors from Georgetown University and Harvard Law School where he earned a position on the Harvard Law Review.   After graduating from law school, he went to work for the Ohio office of the large and prestigious law firm Jones Day for several years before becoming a law professor at the University of Virginia.  A few years after he arrived in Virginia he was appointed by President Nixon to the Office of Telecommunications Policy, which placed him in the spot light of fellow conservatives who respected his intellectual firepower.  Nixon soon appointed him as Assistant Attorney General of the President's Office of Legal Counsel where he helped to defend the Nixon Administration during the infamous Watergate scandal.  Scalia leveraged his political connections from the Nixon administration to catch President Reagan's attention, and Reagan appointed him to the United States Court of Appeals for the D.C. Circuit in 1982.   He held that seat for four years until Reagan appointed him to the Supreme Court in 1986.  On September 17, 1986, Scalia, confirmed by the Senate 98-0, became the first Italian-American Justice of the Supreme Court.

Upon being appointed to the Supreme Court, Scalia earned a reputation as the intellectual powerhouse for conservatives.  His opinions often dismantled any liberal opposition with ease.  Towards the latter part of his career, however, Scalia's opinions began to border on conservative rants more appropriate for talk radio than for the Supreme Court.  We have written about him several times here, here, here and here.

As far as what this means for today's political climate, President Obama, in theory, will have the right to appoint another Justice to take his place.  However, any proposed Justice must be confirmed by the Senate, which is currently majority Republican.  This makes getting any Obama pick an uphill battle.  If Obama is able to get a confirmation through the Senate, that will significantly change the ideological make up of the Supreme Court from 5 conservatives, 4 liberals, to 5 liberals, 4 conservatives.  It is also a strong possibility that Justice Ruth Bader Ginsburg (age 82) would likely take this opportunity to also retire, giving Obama yet another opportunity to place another progressive voice on the bench.

To date, Obama has placed two Supreme Court Justices on the bench, and both have been women: (1) Sonia Sotomayor; and (2) Elena Kagan.  He will have the opportunity to place a third (and possibly fouth) Justice on the bench, which is historic for any President (the record being 11 Justices by President George Washington, and second place going to President FDR with 9 appointments).

Whether Obama is able to appoint Scalia's replacement or not, the appointment of the next Supreme Court Justice is guaranteed to rise to the forefront of the 2016 Presidential Election. Look for both sides to use this issue to their advantage on the campaign trail in order to motivate people to vote.

Your thoughts?

The Supreme Court, ObamaCare and Moral Claims of Freedom

The Supreme Court has spoken. The constitutional battle over ObamaCare is over. The President and his much derided solicitor general won on most of the legal merits and the policy implementation. Even as the Supreme Court (rightly in my view) rejected the Administration's argument that the Commerce Clause allowed a mandate to purchase health care coverage, it (wrongly in my view) allowed the individual mandate to stand by wrongly characterizing it as a tax. Very few people besides Lauryn Hill, Wesley Snipes or Irwin Schiff question the government's ability to tax and spend so the Supreme Court called the mandate a tax and allowed it to stand.


So that is that. Short of a (currently unlikely) Romney victory and (quite unlikely) total Republican November sweep of the House and Senate, the Patient Protection and Affordable Care Act is a settled issue. There are some Republican governors who are threatening, as is their right, to refuse to set up exchanges or expand Medicaid while for the 33rd time the House voted to repeal the law but those are die-hard responses that won't "pull up ObamaCare by its roots" as some desired.


One thing that I've noticed is that partisans on either side make the mistake of personalizing the Patient Protection and Affordable Care Act (hence the name ObamaCare). This explains the insane "I will break him" attitude of many Republicans and the joy of some PPACA supporters who didn't really look at the fine print.

Too many PPACA supporters make the mistake of assuming that all opposition must, by definition, be based in dislike for the President. This is not the case. There are two major objections to the PPACA, which are shared in different ways by principled dissidents on both the left and right as well as some libertarians across the board.
First, there has been a reduction in freedom. This is the critical issue to people who tend libertarian and/or are opposed to the mandate. 


Unfortunately many people on the left and/or supporters of PPACA miss this entirely. They assume that anyone who invokes this concern is either a useful idiot (if they're leftist) or a liar (if they're on the right). Well maybe. But remember we talked recently about how many people on the left place equality and compassion as the highest and in some cases only moral values. This is an excellent example of that. In order to supposedly move towards equality and compassion the people who support the mandate are perfectly willing to reduce your freedom to make choices about what sort of health care you want. Now think about some of the other power-mad people that are in executive office around the nation. Can you imagine what a President Bloomberg might do with such powers? What sort of nation do you want? Do you want an activist relatively unrestrained centralized government?

I live in Michigan which has a higher than normal amount of truly obese people of all races. It's especially bad for Hispanics and Blacks. All else equal, obese people cost the public and private sector more in medical coverage. They clog the health care system with their (preventable) diseases and conditions. The slender, underweight, normal sized or moderately overweight workers pay money into a system that transfers much of that money to obese care. Why should I pay money to subsidize some free-loading fattie? So OBVIOUSLY we need a mandate that obese people (BMI of 31 or greater, or body fat pct of 32% or higher) join a health club and maintain that membership until their BMI falls to 28 or lower. To make it nice and constitutional we'll just levy a tax on porcine people who refuse the new mandate or can't lose the weight. Sound good?? Well if I happened to own a health club I would love this idea. 
People that drive trucks use more gasoline, contribute more to global warming and damage roads more quickly. And those doggone people won't stop buying trucks even as gasoline stays above $3/gallon. So OBVIOUSLY we need a mandate that everyone purchase either a Volt, a Focus, a Leaf, or a Nano. So those of you who like your Rams or F-150s sorry pal. You're hurting the economy. But why stop there?

There's a doctor shortage, This affects health care. And that's commerce. Too many smart people are going into law or finance. This is an OBVIOUS resource misallocation. Don't these people know that they owe it to us all to make the right choice? We'll just mandate that certain people become doctors. After all chances are that they're receiving some form of government tuition assistance. And should they disagree well that's no problem, we'll just refuse them student loans and make them pay added penalties on any income earned outside of the medical field. We'll soon have more doctors to treat the expanded patient base.
Now that we've accepted that anything (including inactivity) that impacts commerce can be taxed and mandated why not just go for broke. Business hiring decisions have a much larger immediate economic impact than health care provision health care. Corporations are sitting on trillions in cash and refusing to hire people. This hurts the economy. In fact it's economic treason. So let's just mandate that corporations hire people until the unemployment rate is at 5% or lower. Those companies that refuse will have to pay a penalty tax. The Secretary of Commerce and the Secretary of Treasury will oversee this program.

And so on. You may think I am being ridiculous. Maybe I am. You may think there are political, legal or constitutional barriers. You may even think some of those are good ideas. But I don't think any of them are good ideas. And I think they are slightly more likely than they were a month ago. The government has unparalleled coercive powers. I don't think it's a coincidence that after the PPACA was upheld we see NYT editorials endorsing the idea of using eminent domain to seize homes that are underwater and give them to other investors for resale or using the power to draft to create a national service cadre of lower paid/unpaid young workers that would undercut unionized labor.


Secondly, the law doesn't solve the problem it was meant to solve. It does not bend the cost curve. How could it? Big pharma maintains protection from cheaper generic drugs. Hospitals have greater incentives to merge. There is no legal mechanism to limit or prevent premium increases. All else equal there will be greater demand for roughly the same supply of services. That means, premiums will increase, as mine already have. It makes it more difficult, if not impossible to push for a single payer program in the US and may increase medical costs abroad.

Who are the people who lack health insurance. Well some are the long-term unemployed. Others are illegal immigrants, who will still be uncovered under this plan and will still be seeking assistance in the ER. Others are people with conditions that are simply so expensive to treat that their insurer has kicked them off their plan and/or other insurers have refused to cover them. Others are employed people who either can't afford coverage or who work somewhere where coverage isn't offered. And finally there are people who, affordability aside, have made a rational choice they they don't currently need health care insurance. 
This last group (the smallest) has received much scorn and opprobrium for supposedly driving up insurance premiums. People speak of them with contempt. They tend to be younger and/or in better health so they are much desired as customers by insurers because they will tend to pay premiums but cost very little in coverage. I don't understand why it is okay to speak with disdain of people standing on their own two feet but if someone has an unkind word to say about a welfare recipient, who is taking from the system, then that's a bad thing. At the very least it's safe to say that this law will have some unintended consequences.


Obviously some people are not fans of the 9th amendment, the 10th amendment or of a Federal Government with limited enumerated powers. That's fine. Evidently portions of the Constitution don't mean what I thought they meant. Cool. Hey I'm no constitutional scholar. I'm just an IT guy.


But, if we did decide that we really really really wanted a Federal Government with limited and enumerated powers and that the 9th and 10th amendments were actually meaningful amendments rather than the redheaded ugly stepchildren of the Bill of Rights, what changes would we need to make to the Constitution since evidently some parts just aren't clear??? This is not a rhetorical question. My concept is that government should stick to its limited roles but otherwise leave me alone.

Now that the issue has been settled, at least in the courts:

What are your thoughts?

Do you at least understand the opposing side (whatever side that is)?

Do you think this will be an issue in the November election?

Do you want a limited federal government or a large unlimited federal government?

Supreme Court Approves Violent Video Games, Scalia PWNS Fellow Conservatives

Congratulations to all of you kids out there on your recent legal victory, even though you're probably too busy playing Call of Duty right now to know what the heck I'm talking about.  In case you were wondering, your days of playing shoot 'em up video games have been secured for many years to come by the nation's highest Court in a 5-4 decision, Brown v. Entertainment Merchants Assoc., which held that the First Amendment does not allow the States to ban the sale of violent video games to minors. The Supreme Court, in a majority opinion authored by Justice Antonin Scalia and joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan (a rare combination indeed), ruled that video games (even violent ones) qualify as First Amendment "Free Speech" just like books, movies, plays, cartoons and comic books.  Pursuant to this holding, the Court struck down a California law that sought to make it illegal to sell what it defined as "violent video games" to anybody under the age of 18, irrespective of whether the kid had his or her parents' permission or not.  What was also particularly interesting about this case is that conservative Justice Scalia, in rare form, went IN on his fellow conservative Justices, Clarence Thomas and Samuel Alito, who departed from his opinion on this issue.



SCALIA'S MAJORITY OPINION:
Scalia basically starts off by acknowledging the general rule in First Amendment free speech cases which is this:  government cannot make laws that restrict our freedom of speech.  That's the general rule.  As with most general rules, there are, of course, a few recognized exceptions:  (i) fighting words, (ii) speech that incites people to violence, (iii) defamation or slander and, last but not least, (iv) obscenity.  Now when it comes to obscenity, the Supreme Court is very specific and very cautious as to what constitutes "obscenity," since, after all, one man's obscenity could be argued as another man's art.  Scalia notes that, to date, the Court has "been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of sexual conduct."  Majority opinion at 5 (emphasis supplied).  So, by Scalia's view, that distinguishes this statute from a statute that, for example, attempts to make it illegal to sell pornography to minors.  Scalia goes on to say that kids in America have been exposed to violence for centuries, and, as evidence of this fact, he cites to common children's literature such as Grimm's Fairy Tales, Cinderella, Hansel & Gretel, Homer's Odysseus, and Lord of the Flies, which all have violent episodes at some point during their respective stories.  He concludes that California's law against video games does not pass the First Amendment's "strict scrutiny" test for 2 reasons: (i) the law is underinclusive because it was only aimed at violent video games as opposed to being aimed at ALL violent images that effect children such as cartoons, comic books, etc.; and (ii) the law is overinclusive because it would have penalized children who actually received the green light from their parents to play violent video games.

ALITO'S CONCURRING OPINION:
Alito concurs with the Court's ultimate decision to strike down California's law, but he doesn't agree with how the Court arrived at its conclusion.  Alito basically takes the position that violent video games are not like anything our kids have ever been exposed to before.  He goes on at length to describe how wrong violent video games are for kids, stating that:

In some of these games, the violence is astounding.  Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws.  Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces.  They cry out in agony and beg for mercy.  Blood gushes, splatters, and pools.  Severed body parts and gobs of human remains are graphically shown.  In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed...this experience is different from reading a book, listening to a radio broadcast, or viewing a movie."  Alito concurring opinion at 14-17.

Scalia sharply disagrees with Alito's argument, saying:

Justice Alito recounts all these disgusting video games in order to disgust us - but disgust is not a valid basis for restricting expression.  Majority opinion at 11.  Justice Alito accuses us of pronouncing that playing violent video games "is not different in 'kind'" from reading violent literature.  Well of course it is different in kind...[r]eading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat.  But these cultural and intellectual differences are not constitutional ones.  Majority opinion at 9, n. 4.

THOMAS' DISSENTING OPINION:
Justice Thomas, in a rare departure form his conservative brethren on the bench, completely disagreed with Scalia's analysis. Thomas takes the "Originalist" approach and argues that the "original meaning" of the First Amendment "does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians."  Thomas dissenting opinion at 1.  In other words, kids don't have any free speech rights and neither do video game producers who sell their games to kids because the founding fathers didn't intend to include them in the First Amendment when they wrote it way back in 1791.   Scalia, who is usually joined by Thomas in every opinion that he writes, seems to have had enough of Thomas' so-called Originalism on this issue and comes back hard on Thomas:

Justice Thomas ignores the holding of [Erznoznik v. Jacksonville], and denies that persons under 18 have any constitutional right to speak or be spoken to without their parents' consent.  He cites no case, state or federal, supporting this view, and to our knowledge there is none.  Majority opinion at 7-8, n. 3.

It is one thing for the Justices to disagree from time to time about the precedent used by the other Justices on a particular issue.  It is an entirely different matter altogether for a Justice to say that another Justice has NO precedent for their argument whatsoever.  Folks, this is the equivalent of a Supreme Court Justice turning to another Justice and saying "Dude, you obviously have no idea what the F*#@ you're talking about!!!"

BREYER'S DISSENTING OPINION:
We don't tend to hear too much about Justice Stephen Breyer.  Along with the 3 ladies of the Court, he is usually the fourth member of the progressive voting block on all the hotly contested issues that are divided 5-4 down ideological lines.  But, other than that, he sort of just stays quiet and hangs out in the background, rarely writing an opinion one way or another on a given case.  Breyer argues that the California law actually does pass the First Amendment's "strict scrutiny" test because:

The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child from or adolescent from obtaining a game provided a parent is willing to help.  All it prevents is a child or adolescent from buying, without a parent's assistance, a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17.  Breyer dissenting opinion at 10.

So Breyer, unlike the Majority, doesn't see anything wrong with the law as it is written - a point so basic that Scalia doesn't really bother to launch a counter-attack against Breyer the same way he did against Alito and Thomas.

This case presents many good questions:


1. Who has the best argument of the 4 opinions and why?
2. Is the "Originalist" method of interpretation no longer a valid way to interpret the Constitution?
3. Should we as a society keep violent video games out of the hands of our kids? 
4. Do you believe that violent video games make the people who play them more prone to violence.