I find myself reading the actual transcript, and wondering how Mr. Yalowitz actually kept a straight face.
JUSTICE GORSUCH: So, if I've got it right, you want us to adopt the fundamental fairness language from our Fourteenth Amendment jurisprudence but give it different content in the Fifth Amendment. Is that fair?
MR. YALOWITZ: I don't think you have to adopt the fundamental fairness --
JUSTICE GORSUCH: No. But, to get your five votes, that's -- you're willing to do that?
MR. YALOWITZ: I would be willing --
JUSTICE GORSUCH: Yeah.
MR. YALOWITZ: -- to do that.
JUSTICE GORSUCH: Okay. And if we did that --
MR. YALOWITZ: I'm not going to lie.
So far I don't see how anyone could think any of the justices would support Mr. Yalowitz, who is arguing to overturn the case.
⚔️ well, actually, there may be another lawyer with better arguments.
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JUSTICE THOMAS: Didn't the Justice Department take a different position in the 1980s, that the PLO did not have constitutional rights?
MR. KNEEDLER: Well, you say a different position. We're not taking a position here. But, in those -- those cases were --
JUSTICE THOMAS: Well, it's different from the non-position.
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Mr. Berger makes an admirable attempt at a very silly position he is forced to take:
JUSTICE THOMAS: Mr. Berger, I know this is not the center of your argument, but could you just explain how PLO and PA are persons within the meaning of the Fifth and Fourteenth Amendment?
MR. BERGER: Yes. Absolutely, Justice Thomas. And I would respectfully draw the
Court's attention back to the February 2018 amicus brief filed by the United States in an earlier round of this case, in which the government's non-position was considerably more of a position and basically said there's only one type of person that this Court's precedent has recognized is excluded from the Due Process Clause and that's sovereigns. And, because the PA and the PLO are not recognized as sovereign by the United States, they are by default persons entitled to due process protection. ... But, ultimately, it's binary, right? If -- if -- you're either a person for purposes of the Due Process Clause and entitled to due process protections, or you're a sovereign state and you're entitled to the protections of the Foreign Sovereign Immunities Act, but there's no no-man's-land where you're neither a sovereign state nor a person.
Alito seems the only one to buy into the theories:
JUSTICE ALITO: What exactly is the unfairness in -- in this case?
MR. BERGER: In --
JUSTICE ALITO: It's the -- it's too burdensome to litigate this in New York where the PA and the PLO conduct some activities?
MR. BERGER: Well, so --
JUSTICE ALITO: What's the unfairness?
🔥 it is somewhat amazing that only one of the Supreme Court justices is a partisan hack.
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It is hard to imagine anyone other than Alito supporting the position that the court should find jurisdiction.