Comment by gnicholas | Hacker News Reader

Comment by gnicholas | Hacker News Reader

> Gorsuch wrote for a majority that included Justices Clarence Thomas, Sonia Sotomayor, Elena Kagan and Amy Coney Barrett.

This is a super-weird combination of Justices, which includes those from the furthest right and furthest left.

As the Volokh Conspiracy noted:

> Justice Gorsuch wrote for the Court, but only two justices (Thomas and Barrett) agreed with him in full. In fact, the Justices were quite splintered. [1]

The third-listed takeaway is related to this odd clumping of Justics.

> First, the opinion signals a narrowing of the Dormant Commerce Clause to an anti-discrimination rule, as opposed to a broader protection for the frictionless movement of goods and services across state lines.

Second, the opinion provides a bright green light for states to adopt environmental laws that regulate goods and services based upon how they are produced (e.g. their carbon intensity, etc.). California already leads the way with such laws, and this decision should make it more difficult for business groups to challenge such measures.

Third, the decision complicates the already questionable "Roberts Court is pro-business" narrative, by demonstrating (yet again) that when conservative jurisprudential commitments conflict with corporate interests, the former prevail. Combined with decisions such as Virginia Uranium v. Warren, National Pork Producers shows that business groups cannot depend on conservative justices to support their challenges to state regulations.

1: https://reason.com/volokh/2023/05/11/scotus-chooses-californ...

LOL, Roberts takes a shot at Kavanaugh on page 26:

> JUSTICE KAVANAUGH’s solo concurrence in part and dissent in part says the quiet part aloud: California’s market is so lucrative that almost any in-state measure will influence how out-of-state profit-maximizing firms choose to operate. ... But if that makes all the difference, it means voters in States with smaller markets are constitutionally entitled to greater authority to regulate in- state sales than voters in States with larger markets. So much for the Constitution’s “fundamental principle of equal sovereignty among the States.”

Lol, yup.

Equal sovereignty does not mean equal influence.

/glances in the direction of the US Senate

Isn’t that a direct acknowledgment that they are different?

No, unless you're reading my comment as some sort of conservative dog whistle. The US Senate structure is a direct contradiction to GP's observation, it's the case where does not is weakened to should not.

The Senate is working exactly as intended. Some people might disagree with that intent, but until the constitution is amended or replaced it's very much a case of "should."

Note that the Constitution explicitly prohibits amendments from changing the feature of the Senate in question. (Though two hacks that I am aware of have been proposed for end-running that: the first I call the “who watches the watchmen” hack – the Constitution does not explicitly protect the rules on what Amendments can do the way it protects equal representation in the Senate, so one Amendment would change the rules on Amendments to remove the prohibition against removing equal protection in the Senate, and then the second would restructure the Senate; the second I call the “ceremonial Senate” hack – the Constitution protects equal representation in the Senate from Amendment, but it doesn’t protect any of the Senate’s functions, so you can just strip all the functions of the Senate by Amendment [if you still want a functionally bicameral legislature, you can create a third house of Congress and assign whatever Senate functions you want to retain and not transfer to the House of Reps to third house].)

The whole point of the senate was to give states equal power and entice them to federate under a single government. The point of the bicameral legislative branch was that more direct representation necessitated someone living close enough to their constituents, and legislating on their behalf. The house, serves it's purpose of representing the people's voice, based on population. The senate, represents the state's government on the federal playing field.

People either snoozed through their US government courses or fundamentally misunderstood the role of the senate when they bring up nonsense about it being unfair. It is perfectly fair, just not in the direction they want.

I don't think it's even that. Many US residents today, in particular those with policy making power, consider the constitutional political system to be nothing more than another lever of power. For those who hold that ethos the constitution is like a grab bag. The contents that further their objectives are good and are to be used as well as possible. The contents that hinder their objectives are bad and are to be undermined and ignored to the extent possible. The equal representation of the states in the Senate is merely understood, much like the Electoral College, as a bad check on the policy objectives of those in power. That their childish rhetoric works on those with no understanding of US Civics certainly doesn't hurt though.

People are too disinterested in politics to elect good representatives. They buy into fear-mongering and propaganda with no effort.

Just because the representatives suck doesn't mean the system does. A direct democracy would be a catastrophy, as most people who vote are not even paying attention. I think it'd be better to restrict voting to taxpayers federally, and land owners locally.

> The Senate is working exactly as intended.

Not really. The Senate was meant to represent the interests of the state and state governments as an institution rather than the people of the state but the 17th amendment subverted that under the guise of poblic choice the people because state legislatures wanted to shirk that responsibility. The net result is that we've lost much of the Senate's value as being an elitist/anti-populist/institutional check on populism, and the vagaries of electoral politics in general, without anything to replace it.

That was the intent of the 17th amendment. The 17th is just as much a part of the constitution as Article I. Once again, we might agree or disagree, but it is working as intended.

Not really - the people who enacted the 17th amendment didn't understand why the constitution was the way it is and a result left us at the mercy of populists like donald trump and prodigous spendsers like the last few administrations.

I don't follow the final lines:

> But if that makes all the difference, it means voters in States with smaller markets are constitutionally entitled to greater authority to regulate in- state sales than voters in States with larger markets. So much for the Constitution’s “fundamental principle of equal sovereignty among the States.

CA doesn't owe anything if a business likes CA more than WY.

gorsuch is complaining that if california restricts its in-state sales based on xyz, then firms everywhere will optimize in ways influenced by requirements xyz. with california being quite a lucrative market, its requirements will thus have influence over producers everywhere if they intend to sell to california. presumably if it were a more inconsequential state setting some requirements, then gorsuch wouldn't have so much of a problem and might go along. roberts points out that this is against the spirit of states having equal sovereignty. in other words, you can't let wyoming set requirements abc because who cares about that market, and then turn around and tell california "you're too big to set requirements xyz" and have that seen as fair.

There are already a lot of products that are constrained in various ways from moving across state lines. Alcohol is the poster child, but it's a long list chock full of mundane items. For example, you can't ship a shower head to California unless it has a 1.8GPM flow restrictor on it.

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