"[T]he court overruled its 91-year-old decision in Humphrey’s Executor v. United States... [M]ore broadly, Monday’s decision was a major victory for proponents of the 'unitary executive' theory..."

"... the idea that the president should have complete control over the executive branch. Under this theory, the president should be able to fire any member of the executive branch, and laws – like the one that the court struck down – that restrict his ability to do so violate the separation of powers. Writing for the majority, Chief Justice John Roberts contended that 'the President must have the assistance of officers he can trust. Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President’s power are subject to removal by him. Then, and only then, can they remain accountable to the President, and the President to the people.'..."

I'm reading "Supreme Court allows Trump to fire FTC commissioner and overturns major restraint on presidential power" by Amy Howe at SCOTUSblog, writing about yesterday's Trump v. Slaughter.

"In a 36-page opinion... Roberts first emphasized that the Constitution gives the president '[t]he executive Power,' as well as the responsibility to 'take Care that the Laws be faithfully executed.' The Framers of the Constitution, Roberts explained, wanted to create a system in which the one person, the president, was in charge of the executive branch. The officials who work for him, Roberts continued, are there to help him, but the president must be able to fire them if they are not performing well – so that he can carry out his own job.

"What is clear is that the majority today forecloses future reliance on Sosa and shuts the courthouse doors to almost any claimed violation of international law under the [Alien Tort Statute]."

"That includes torture. See, e.g., Filartiga v. Pena-Irala, 630 F. 2d 876, 878 (CA2 1980) (ATS suit brought by plaintiff alleging that his son had been kidnapped and tortured to death in retaliation for the plaintiff’s political beliefs). It includes forced labor. See, e.g., Licea v. Curacao Drydock Co., 584 F. Supp. 2d 1355, 1359 (SD Fla. 2008) (ATS suit alleging that the defendant trafficked Cubans to Curacao, held them in captivity, and forced them to work repairing ships and oil platforms). It also includes perhaps the most universally condemned crime in the modern era: genocide. See, e.g., Kadic v. Karadzic, 70 F. 3d 232, 236–237 (CA2 1995) (ATS suit alleging 'brutal acts of rape, forced prostitution, forced impregnation, torture, and summary execution, carried out by Bosnian-Serb military forces as part of a genocidal campaign'). 'Like the pirates of the 18th century,' whose conduct so concerned Blackstone and the First Congress, 'today’s torturers, slave traders, and perpetrators of genocide are "hostis humani generis, an enemy of all mankind."' Nestlé, 593 U. S., at 647 (opinion of SOTOMAYOR, J.). As to each of these offenses, as to each of these enemies of mankind, the majority decides that there is simply no way that a suit could possibly proceed without offending Congress. Noticeably absent from the majority’s analysis is any evidence that Congress would be offended by these suits. Of course, there may be reasons why allowing an individual ATS suit to proceed would be unwise. That possibility, however, should be addressed on a case-by-case basis...."

Writes Justice Ketanji-Brown Jackson, dissenting in Cisco Systems v. Doe, announced this morning.

"President Donald Trump plans to sit in on Wednesday’s Supreme Court hearing on birthright citizenship, making him the first sitting president to attend oral arguments at the nation’s highest court."

AP reports.

It’s not the first time Trump has considered showing up for a high court hearing. Last year, Trump said that he badly wanted to attend a hearing on whether he overstepped federal law with his sweeping tariffs, but he decided against it, saying it would have been a distraction....

“I’m going,” Trump said, when the upcoming arguments in the birthright citizenship case were mentioned. To a follow-up question clarifying that he planned to go in person, Trump said, “I think so, I do believe.”

He sat in court when they were trying him for those crimes they convicted him of. He knows how to sit in court.

From the transcript of the press conference:

"I no longer can bear to be restrained by what judges can say publicly or do outside the courtroom."

Writes Mark L. Wolf, 78, who has been on senior status as a federal judge since 2013. He's stating a downside of being a judge.Wolf's column, in The Atlantic, is called "Why I Am Resigning/A federal judge explains his reasoning for leaving the bench" (gift link). It begins:

In 1985, President Ronald Reagan appointed me as a federal judge. I was 38 years old. At the time, I looked forward to serving for the rest of my life. However, I resigned Friday, relinquishing that lifetime appointment.... When I became a senior judge in 2013, my successor was appointed, so my resignation will not create a vacancy to be filled by the president. 

Despite being a Reagan judge at the time of appointment, Wolf handed the power to appoint the next judge to President Obama. Wolf is sloughing off senior status to gain a power for himself, the power to speak freely. And what he wants to talk about is Trump's "assault on the rule of law." He ends the column by quoting RFK Sr. — "Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope" — and the poet Seamus Heaney — the “longed-for tidal wave of justice can rise up, and hope and history rhyme.”

ADDED: For more detail on that Seamus Heaney line, here's Bill Clinton:

Moments away — we'll be getting the last cases of this Supreme Court term.

The cases will be posted on the Court's website, here. And here's the live-blogging at SCOTUSblog.

Here's Grok's summary of the remaining cases — birthright citizenship, racial gerrymandering, the nondelegation doctrine, Obamacare, access to on-line porn, and parents opting their kids out of woke school lessons.

UPDATE 1: "Universal injunctions likely exceed the equitable authority that Congress has given to federal courts. The Court grants the Government’s applications for a partial stay of the injunctions entered below, are broader than necessary to provide complete relief to each plaintiff with standing to sue" — Trump v. CASA. This is the "birthright citizenship" case, but it did not address the issue "whether the Executive Order violates the Citizenship Clause or Nationality Act. Instead, the issue the Court decides is whether, under the Judiciary Act of 1789, federal courts have equitable authority to issue universal injunctions." Decided 6-3 (in the usual 6-3 breakdown).

From Justice Barrett's opinion: "The universal injunction was conspicuously nonexistent for most of our Nation’s history. Its absence from 18th- and 19th-century equity practice settles the question of judicial authority. That the absence continued into the 20th century renders any claim of historical pedigree still more implausible. Even during the “deluge of constitutional litigation that occurred in the wake of Ex parte Young, throughout the Lochner Era, and at the dawn of the New Deal,” universal injunctions were nowhere to be found....Had federal courts believed themselves to possess the tool, surely they would not have let it lay idle."

Addressing Justice Jackson's dissent, Barrett writes: "JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary. No one disputes that the Executive has a duty to follow the law. But the Judiciary does not have unbridled authority to enforce this obligation—in fact, sometimes the law prohibits the Judiciary from doing so. See, e.g., Marbury v. Madison, 1 Cranch 137 (1803) (concluding that James Madison had violated the law but holding that the Court lacked jurisdiction to issue a writ of mandamus ordering him to follow it). But see post, at 15 (JACKSON, J., dissenting) ('If courts do not have the authority to require the Executive to adhere to law universally, . . . compliance with law some-times becomes a matter of Executive prerogative'). Observing the limits on judicial authority—including, as relevant here, the boundaries of the Judiciary Act of 1789—is required by a judge’s oath to follow the law. JUSTICE JACKSON skips over that part. Because analyzing the governing statute involves boring 'legalese,' post, at 3, she seeks to answer 'a far more basic question of enormous practical significance: May a federal court in the United States of America order the Executive to follow the law?' Ibid. In other words, it is unnecessary to consider whether Congress has constrained the Judiciary; what matters is how the Judiciary may constrain the Executive. JUSTICE JACKSON would do well to heed her own admonition: '[E]veryone, from the President on down, is bound by law.' Ibid. That goes for judges too."

UPDATE 2: Kennedy v. Braidwood rejects the Appointments Clause challenge to the U. S. Preventive Services Task Force. The members of the task force are deemed "inferior officers," thus not needing appointment by the President and Senate confirmation. This one is 6-3 in an unusual way. Sotomayor, Kagan, and Jackson join the majority opinion written by Kavanaugh (and also joined by Roberts and Barrett). The dissenters are Thomas, Alito, and Gorsuch.

UPDATE 3: FCC v. Consumers' Research — "The universal-service contribution scheme does not violate the nondelegation doctrine." Another 6-3 the unusual way — with a dissent from Thomas, Alito, and Gorsuch.

UPDATE 4: Mahmoud v. Taylor, 6-3, the usual way. "Parents challenging the Board’s introduction of the 'LGBTQ+-inclusive' storybooks, along with its decision to withhold opt outs, are entitled to a preliminary injunction." Justice Alito writes for the majority:

The Board of Education of Montgomery County, Maryland (Board), has introduced a variety of “LGBTQ+-inclusive” storybooks into the elementary school curriculum. These books—and associated educational instructions provided to teachers—are designed to “disrupt” children’s thinking about sexuality and gender. The Board has told parents that it will not give them notice when the books are going to be used and that their children’s attendance during those periods is mandatory. A group of parents from diverse religious backgrounds sued to enjoin those policies. They assert that the new curriculum, combined with the Board’s decision to deny opt outs, impermissibly burdens their religious exercise. 

Today, we hold that the parents have shown that they are entitled to a preliminary injunction. A government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses “a very real threat of undermining” the religious beliefs and practices that the parents wish to instill. Wisconsin v. Yoder, 406 U. S. 205, 218 (1972). And a government cannot condition the benefit of free public education on parents’ acceptance of such instruction. Based on these principles, we conclude that the parents are likely to succeed in their challenge to the Board’s policies....

I added the boldface. The school was so out front in its desire to reprogram children. They must have been pious believers... or at least people who felt called to pose as pious believers. 

UPDATE 5: Free Speech Coalition v. Paxton, 6-3, the usual way, upholding the Texas law that restricts access to on-line porn. How do you exclude minors without burdening access for everyone? Here, the state required age verification. "But adults have no First Amendment right to avoid age verification. Any burden on adults is therefore incidental to regulating activity not protected by the First Amendment. This makes intermediate scrutiny the appropriate standard under the Court’s precedents." And the law "advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests." 

Kagan writes in dissent: "[I]f a scheme other than H. B. 1181 can just as well accomplish that objective and better protect adults’ First Amendment freedoms, then Texas should have to adopt it (or at least demonstrate some good reason not to). A State may not care much about safeguarding adults’ access to sexually explicit speech; a State may even prefer to curtail those materials for everyone. Many reasonable people, after all, view the speech at issue here as ugly and harmful for any audience. But the First Amendment protects those sexually explicit materials, for every adult. So a State cannot target that expression, as Texas has here, any more than is necessary to prevent it from reaching children."

UPDATE 6: The racial gerrymandering case — Louisiana v. Callais — will be reargued. Justice Thomas, alone, dissents: "These cases also warrant immediate resolution because, due to our Janus-like election-law jurisprudence, States do not know how to draw maps that 'survive both constitutional and VRA review.'"

Trump asserts that he "saved L.A."

At Truth Social:

The Appeals Court ruled last night that I can use the National Guard to keep our cities, in this case Los Angeles, safe. If I didn’t send the Military into Los Angeles, that city would be burning to the ground right now. We saved L.A. Thank you for the Decision!!!

You never get to find out what would have happened if what was done had not been done. When do courts choose to stop a President and find out what the alternative would look like? Depends on the judges, but I tend to think they don't want to know. It's scary, and Trump is trying to scare them.

"All Voters who believe in Common Sense should GET OUT TO VOTE EARLY for Brad Schimel. By turning out and VOTING EARLY, you will be helping to Uphold the Rule of Law..."

"... Protect our Incredible Police, Secure our Beloved Constitution, Safeguard our Inalienable Rights, and PRESERVE LIBERTY AND JUSTICE FOR ALL."

That's how Trump put it on Truth Social, quoted in "Trump Jumps Into a Major Wisconsin Court Race With an Endorsement/The president threw his support to Brad Schimel, the conservative candidate in a race for control of the battleground state’s top court. Elon Musk has spent millions of dollars on the contest" (NYT).

Does it help a state supreme court candidate to be so closely aligned with Trump? Don't we — a lot of us — think judges should be politically neutral arbiters of the law? 

Well, as Trump portrays it, it's the other side that's political. His guy is there to uphold the law and protect our rights. Trump is a political figure, but he respects the traditional values of the judiciary and vouches for Brad Schimel as an upholder of those values. Of course, that's utter garbage to the other side. This is the conventional discourse of judicial elections in Wisconsin. It's possible that the appeal to traditional values motivates conservatives more than liberals, but is Trump's position on traditional values credible, or does his appearance fire up the Trump haters?

Most important here is that the judicial election is isolated from more political elections, so there tends to be a low turnout. There are a lot of people in Wisconsin who love Trump. Maybe these people wouldn't even notice the judicial election or wouldn't bother to vote, but if Trump says, come on, this matters, get out there, maybe they'll stampede to the polls. Yes, it's a cue to Trump haters to get out there and cancel those votes, but the anti-Trumpers are a step behind.

The relevant election day is April 1st. Trump says vote early. If you wait until election day, you might forget or you might have something else going on.

"There's a term in law: justiciable. This is not justiciable."

Stephen Miller instructs Kasie Hunt:

ADDED: From the comments over there: "The Gish gallop is a rhetorical technique in which a person in a debate attempts to overwhelm an opponent by presenting an excessive number of arguments, with no regard for their accuracy or strength, with a rapidity that makes it impossible for the opponent to address them in the time available."

Is it possible for both sides to do the Gish gallop at each other?

"President Trump wrote on social media on Sunday night that he no longer considered valid the pardons his predecessor granted to members of the bipartisan House committee that investigated the Jan. 6, 2021, attacks on the Capitol..."

"... and a range of other people whom Mr. Trump sees as his political enemies, because they were signed using an autopen device.... But Mr. Trump’s assertion, which embraced a baseless right-wing conspiracy theory about former President Joseph R. Biden Jr., was a new escalation of his antidemocratic rhetoric. Implicit in his post was Mr. Trump’s belief that the nation’s laws should be whatever he decrees them to be. And it was a jolting reminder that his appetite for revenge has not been sated."

The NYT reports.

The NYT writer — Shawn McCreesh — observes "There is no power in the Constitution or case law to undo a pardon, and there is no exception to pardons signed by autopen," but to say that is to look past the question whether there  was a pardon. Even if a pardon can't be undone, how do we know it was ever done? We have a piece of writing, signed by autopen, and maybe it can be shown to have originated within the White House. The power that is in the Constitution is given to "The President," so, interpreting that clause, one might question whether his hand must do the signing... and whether his mind comprehended what he was doing.

But I can't believe courts would entertain challenges like that. It's the ultimate can of worms. Consider the parallel problem in the exercise of power within the judicial branch. We assume that the judicial opinions that emerge from the usual channels are signed/"signed" by the judges whose names appear on them and that the judges minds made the decisions that appear in the words of the text. We may well suspect that law clerks wrote the some of the opinions and even that some of the judges don't understand "their" own opinions. But we accept that they are what they purport to be. Beyond that lies chaos.

ADDED: Here is Trump's post on Truth Social:

"A federal judge in Washington declined to grant a request by 14 state attorneys general to temporarily bar Elon Musk and his associates from accessing data at seven federal agencies..."

"... and moving forward with their efforts to slash the federal work force. The judge said the states had not shown specific examples of how the work of Mr. Musk’s so-called Department of Government Efficiency could cause the states irreparable harm."

The NYT reports.

AND: Here's the opinion, written by Tanya S. Chutkan of the D.C. District Court. Excerpt: "Plaintiffs' declarations are replete with attestations that if Musk and DOGE Defendants cancel, pause, or significantly reduce federal funding or eliminate federal-state contracts, Plaintiff States will suffer extreme financial and programmatic harm.... But the 'possibility' that Defendants may take actions that irreparably harm Plaintiffs 'is not enough.'... Plaintiffs ask the court to take judicial notice of widespread media reports that DOGE has taken or will soon take certain actions, such as mass terminations.... The court may take judicial notice of news articles for their existence, but not for the truth of the statements asserted therein.... Plaintiffs legitimately call into question what appears to be the unchecked authority of an unelected individual and an entity that was not created by Congress and over which it has no oversight. In these circumstances, it must be indisputable that this court acts within the bounds of its authority."

"Judges often invoke the separation of powers to limit their own authority, to put certain classes of executive action off-limits from judicial review, or..."

"... to shape and constrain the remedies they provide. That has been true for as long as we have had courts and judicial review.... As a matter of separation of powers, the courts may themselves decide that courts ought not to be the ones to decide a given issue.... To date, all the Trump administration’s responses in court have embodied appeals to these principles. In response to a recent temporary restraining order that seemingly barred all political appointees at the Treasury Department from access to certain internal information, the administration argued in a filing that the work of executive agencies is overseen by the president, and 'a federal court, consistent with the separation of powers, cannot insulate any portion of this work from the specter of political accountability.' That was a straightforward legal appeal to the limits of judicial authority, made within a judicial proceeding as an argument under applicable law. Even where courts have jurisdiction to decide, it is always legally valid to argue that their decisions ought to respect the separation of powers...."

Writes lawprof Adrian Vermeule, in "JD Vance’s Tweet Is No Crisis/Judges also have an obligation to respect the separation of powers. Usually they do so" (Wall Street Journal, no paywall).

"Supreme Court Upholds Broad Access to Abortion Pill/The justices unanimously rejected a bid to sharply curtail access to a widely available abortion pill, finding that the plaintiffs did not have standing to sue."

The NYT reports.

I made that a free-access link.

In a unanimous decision, written by Justice Brett M. Kavanaugh, the court held that the plaintiffs lacked standing to challenge the F.D.A.’s actions....

When the court overturned Roe v. Wade in 2022, it indicated that it was getting out of the abortion business, leaving the issue to the elected branches. The abortion pill decision vindicated that promise, at least for now....

When the case was argued, Justice Alito said he was troubled that it seemed no one had standing to challenge the F.D.A.’s action. Justice Kavanaugh wrote that not every dispute was for judges to decide: “Some issues may be left to the political and democratic processes.”

Judicial restraint rears its head at this morning's abortion-pill oral argument.

“We've had...a rash of universal injunctions... This case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action.”

— SCOTUS Justice Gorsuch hits recent mifepristone rulings pic.twitter.com/5yarbyQC5s

— The Recount (@therecount) March 26, 2024

Let's read Trump's brief, filed yesterday, in the Supreme Court case about kicking him off the ballot in Colorado.

Here it is.

I like the way the key citation I've been using in my posts on this issue — see here, here, here, and here — appears in the 3rd sentence of the brief:

[I]t is a “‘fundamental principle of our representative democracy,’ embodied in the Constitution, that ... ‘the people should choose whom they please to govern them.’” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 783 (1995) (first quoting Powell v. McCormack, 395 U.S. 486, 547 (1969); then quoting 2 Elliot’s Debates 257 (A. Hamilton, New York)).

That's a principle that ought to be kept in mind in considering each of the 5 different grounds for overturning the Colorado Supreme Court's decision:

"Those favoring the disqualification of Mr. Trump insist that there is nothing antidemocratic about constraining the presidential choices of the national electorate."

"The Constitution, after all, contains a number of provisions that deny the people the right to elect whomever they wish. Article II, Section One, for example, prevents the people from electing anyone who is under age 35 or who is a foreign-born candidate. Those qualifications are expressly declared in the text, and they received robust vetting and debate in the ratifying conventions. In the case of Section 3 [of the Fourteenth Amendment], the Supreme Court is being asked to impose new constraints on the democratic process by way of textual implication and in the absence of any public debate whatsoever.... At best, the text of Section 3 is ambiguous regarding the office of president. The Supreme Court should limit the clause to its historically verifiable meaning and scope. Let the people make their own decisions about Donald Trump."

Writes lawprof Kurt Lash, author of "A Troubled Birth of Freedom: The Struggle to Amend the Constitution in the Aftermath of the Civil War," in "Trump Should Not Be Disqualified by an Ambiguous Clause" (NYT).

The fundamental principle is "the people should choose whom they please to govern them." Ambiguity must be resolved in that direction.

"I do not believe Donald Trump should be prevented from being president of the United States by any court. I think it’s bad for the country."

Said Chris Christie, whose campaign for the nomination is based on despising Trump.

Quoted in "Disqualifying Trump may be legally sound but fraught for democracy, scholars say/Experts say there’s a strong basis for the Colorado Supreme Court’s decision to bar Trump from the ballot, but the larger political context makes the question one of the thorniest in recent memory" (WaPo).

I'm not going to touch the bait "Experts say." You don't need to point it out. I see it.

I've already said what I want to say, but because I hear my own opinion in Christie's, I'm going to reprint what I wrote on January 26, 2021, when Democrats were impeaching the former President and defending it on the ground that a conviction would provide a basis for disqualifying him from running again. Of course, the Senate did not convict Trump, and today's disqualification effort would make a lot more sense if it had. 

At the time, I wrote:

[I]t's extremely important to remember that there is a "fundamental principle of our representative democracy . . . 'that the people should choose whom they please to govern them.'" 

I'm quoting the Supreme Court case rejecting term limits for members of Congress, which was quoting a case about Congress's power to exclude someone the people have elected. 

The internal quote — "the people should choose whom they please to govern them" — comes from Alexander Hamilton, arguing in favor of ratifying the Constitution: 

After all, sir, we must submit to this idea, that the true principle of a republic is, that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed.

I think the presumption should always be against a constitutional interpretation that would restrict the power of the people to choose whom they please. 

The Senate would need to strain the other way to disqualify Private Citizen Trump from running for office again, and that betrays a lack of respect for the people, for the "fundamental principle of our representative democracy." 

Enough fretting that the people can't be trusted evaluating Trump as one of our options. Let the members of Congress get on with proving that they deserved the trust we the people put in them.

And, now, let the various candidates for President prove we ought to trust them and not Trump.

The people should choose whom they please to govern them.

"Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamendable federal constitution to occupy the field."

Wrote Chief Judge Jeffrey S. Sutton, quoted in "Transgender Care Ban Allowed to Take Effect in Tennessee, Appeals Panel Says/The ruling on Saturday is the first time a federal court has allowed a law banning transition care to fully go into effect, amid a flurry of legal challenges across the country" (NYT).

What exactly is the argument that the Constitution forbids this law? How did the court below find a likelihood of success on the merits (as was required for the preliminary injunction to issue)? It's not a question of whether the statute was a good idea, but whether the statute is impermissible under the Constitution. It's a new question.

Watching the Supreme Court. [ADDED: Supreme Court makes a moderate, minimalist change to affirmative action doctrine.]

 At SCOTUSblog.

"We have the university cases."

"The court holds that Harvard and UNC's admissions programs violate the equal protection clause of the 14th Amendment."

The Chief Justice wrote the opinion. The question is how moderate/extreme is it. 

I'm just hanging on the SCOTUSblog feed.

Ah.. no... wait: Here's the opinion.

Excerpt from syllabus:

Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice. Pp. 39–40.

The decision must be somewhat moderate, I'm inferring, because there are concurring opinions from Thomas, Gorsuch, and Kavanaugh. 

The Chief quotes Grutter — "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today" — and adds:

"The decision merely says that 'state courts do not have free rein' and that they may not 'transgress the ordinary bounds of judicial review...'"

"'... such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.' The court offers no concrete understanding nor any example of what that means. It’s clear that a majority was cobbled together among conservative and liberal justices by agreeing to decide this part of the case in the narrowest terms.... [T]he state court interpreted general provisions in the state constitution — such as that requiring elections to be 'free and fair' — to in effect ban partisan gerrymandering. Whether this decision transgresses ordinary judicial review or exemplifies it remains a mystery. Had the court resolved that question, it would have provided much-needed guidance for 2024.... Judicial minimalism can be a virtue in many contexts.... But in the context of election law, it can be a vice. Elections benefit greatly from clear rules laid out well in advance of Election Day.... Clear rules specified in advance are all the more important in this era of pervasive distrust and suspicion concerning elections...."

Writes lawprof Richard H. Pildes in "The Supreme Court Rejected a Dangerous Elections Theory. But It’s Not All Good News" (NYT).

The love for clear rules is easier to express after the Court has rejected the clear rule your opponents were pushing. 

ADDED: Pildes declines to mention Bush v. Gore, but that's the precedent here. From the majority opinion in yesterday's case, Moore v. Harper:

If you're conversant with negative Commerce Clause doctrine — AKA the "dormant" Commerce Clause — then you know why the Supreme Court split the way it did.

The case that came out this morning is National Pork Producers Council v. Ross.

Gorsuch announces the judgment. Much of what he says is joined by the conservatives Thomas and Barrett and by the liberals Sotomayor and Kagan, and some of what he says is joined only by Thomas and Barrett. The Chief Justice concurred in part and dissented in part, and he was joined in that dissent by the conservatives Alito and Kavanaugh and also by the liberal Jackson. There are some additional opinions by Sotomayor, Barrett, and Kavanaugh.

The Commerce Clause — which empowers Congress — has been interpreted to bar the states from discriminating against interstate commerce and, more controversially, from putting too much of a burden on interstate commerce. The California law in question in the case forbids the sale, in California, of meat from pigs that have been raised, anywhere, in a manner California deems cruel. 

The split among the conservatives seems to be between those who favor judicial restraint and federalism and those who want more freedom from regulation.