SCOTUS Watch

The Supreme Court continues to do some notable things as they go into a mini-recess. Of sorts. 

Order List 

The final conference of the year led to two grants and a non-descript order list on the following Monday. The Supreme Court separately amended a grant to specify that they were not concerned with the second question submitted for review.

In the Order List, Thomas publicly said (without comment) that he would take an issue involving the EPA. Alito did not take part in a case without saying why. Only the liberals explain their non-involvement.

Other Orders 

The justices without comment denied an "application to recall and stay the mandate" involving a habeas claim. The lower court (citing the petition) "held that a new expert report based on a previously available claim can restart the clock for filing a habeas petition that is otherwise untimely by years."  

The Supreme Court provided accelerated oral argument (January 10) in the TikTok case. Steve Vladeck supported the move with the law going into effect on January 19th. 

I bow to his knowledge but note that the Court can speed things along if it wants to do so. Cf. Trump cases. Also, will this be the current S.G.'s swan song?

(A media advisory is a red flag that there promises to be some extra call for seats for the TikTok orals.) 

The Supreme Court also granted a case involving Medicaid funding for Planned Parenthood. A quite different solicitor general will handle that one. 

Broadway Debut

Some coverage of Justice Jackson's Broadway debut including some behind-the-scenes video. She is not the first person who popped up on screen like this. 

Justice Sotomayor was on an episode of Sesame Street. Justice Blackmun waited until he was retired for a cameo in Amistad, playing someone a couple decades younger than him. Breyer replaced Blackmun on the Court and Jackson replaced Breyer.  

Lower Courts  

President nominated Adeel A. Mangi as a court of appeals judge and he would have been the first Muslim in that role. He was blocked for bullshit reasons with three Democrats going along with all the Republicans. Mangi used a letter to President Biden to make some parting shots, providing receipts. 

This was a sad day for America, including for religious liberty. I cited the letter on a blog, and someone responded with a bunch of invective. 

The letter provides multiple refutations. Chris Geidner has more. 

A lower court judge was flagged (since they have binding ethics) for criticizing Alito. Another (James Ho, who surely seems like he is pining for a seat on SCOTUS even if a supporter denies it) can spout partisan cant willy-nilly though. 

The new budget increases money provided to defend justices' safety. Perhaps, a quid pro quo requiring more ethics in return would be justified.  

Two More Executions

Joseph Corcoran

Indiana last executed someone fifteen years ago. They will still, arguably not have involuntarily executed anyone since 2009. Corcoran decided to end appeals. He was a "volunteer." He was (now) given the right to have a spiritual counselor present 

Corcoran murdered four people, including his brother in 1999 because he thought they were talking badly about him. Twenty-five years lag time raises Glossip (Breyer) problems. There was evidence of mental incompetence. His lawyers, opposing his execution, argue that it warrants not fulfilling his wish.  

His mental status raises questions about the voluntariness of his decision. I am less enthused about a complete denial of anybody having the right to turn down appeals. The essay's "natural rights" argument is too extreme. What about euthanasia? 

Gary Gilmore shows the importance of some minimal appeals process to protect the integrity of the system. Justice White, who granted the constitutionality of the death penalty, dissented on that ground. But, this is not always a problem. Some appeals have run the course.

A person on death row is not a free agent. Still, people who make decisions often are choosing between bad options. It is rational not to want to live one's life, often in isolation, in a tiny cage for decades on end. The death penalty overall is wrong. If we are stuck with the wrong things, there is a right to choose them.  

Another concern is keeping the press away. The press provides an important function to inform the public and check the government. This provides justification for a right of access, which is standard practice. 

The lack of independent witnesses is problematic. Chris Geidner has more, including notice that a reporter did witness the execution because the murderer put him on his witness list. 

The prosecutor now has second thoughts about applying the death penalty in his case. A family member also opposes his execution. It is likely that the family of the victims, like mine, would have different views. We cannot simply appeal to the victims. 

A final Supreme Court appeal was rejected without comment. The lower court (see Geidner) split 2-1. Liberal justices (Sotomayor or Jackson) have chosen to pick limited spots to dissent or provide statements in capital cases. This was a good time to do so.  

Corcoran was executed shortly after midnight. The sole media witness provided an account.  As Chris Geidner notes, the execution procedure started shortly after midnight, but it is unclear when the drugs began to flow. The reporter only had a view inside of the death chamber shortly after 12:30 AM. 

It is ridiculous to allow a media witness and not even provide a full view of the execution. 

Kevin Ray Underwood

Underwood brutally murdered a ten-year-old girl. The facts suggest the sort of "monster" that people might want off the face of this earth. The murder took place over 18 years ago. The trial was closer to fifteen. 

A mental health claim failed. The execution was delayed a year when the attorney general asked for executions to be spaced out more. No clemency. 

The Supreme Court the morning of the scheduled execution finalized things by rejecting a petition based on the clemency procedure. The usual five-person board now was a three-person board.  No comment. 

The case is likely much weaker than the first case but still would like at least a brief discussion before someone's life is taken. I think a life warrants that. 

The final execution of the year brings us back to those cases that are more about a pure concern about the death penalty. An amoral (the crime was a result of some twisted fantasy) person does something that violates basic human decency. What do we do?

An execution remains a dubious approach. The system as a whole is a problem. If you allow it here, more troublesome (like the first case) will be allowed too. 

Confinement is not an ideal solution but appears to be the best available. The execution of a few of the "worse of the worst," granting that is okay for "the worst act of your life," is an arbitrary lottery.  

And, that (number 25) is the last execution of 2024. On the guy's birthday yet. Oh well. 

Election College Meets

The Electoral College meets today for their one day of "classes" without any formal athletics or anything. It's time to end class. Let's go with the popular vote. 

The "value" of the Electoral College is quite exaggerated, including a "national candidate" when the races tend to split the usual ways with the usual swing states deciding things. Some people appeal to "federalism" as if there aren't numerous other ways that is protected. Or are upset too many people live in certain states. Again, only certain states benefit. 

You can follow one electoral calendar here, including a day that this year falls on Christmas. More on this year's electors. Among the familiar names of New York electors are the governor, attorney general, the former head of the teacher's union, and so on.  

Two times this century the final count included people who did not win the popular vote. This time the winner is someone who barely did not receive a majority. If that makes you feel better. 

The third-party vote reportedly clearly goes Trump's way regarding second choices, including (no shock really) Jill Stein. So, you know, I'm not too relieved.  

Thirteen Republicans who participated in the 2020 fake electors plot, including some who are facing criminal charges, will cast real Electoral College votes Tuesday for President-elect Donald Trump, as electors in the states finalize his victory.

I saw this depressing (and disgusting; often paired emotions these days) news story. Realistically, perhaps, we should have expected even more than that. We should not forget who is coming into power, including that he should be disqualified for taking part in an insurrection (14A, sec. 3).  

[Trump v. Anderson blocked a state from keeping Trump off the ballot. It did not block electors from voting for someone else. Or, Congress determining he is not qualified. That's all academic but just saying.]  

The overall system in place is that states allot electors based on who wins the state (Congress/D.C.) with two states not using "winner takes all." Many states "pledge" electors while some (last I checked) do not. 

Those states can technically have "faithless electors" though electors tend to be party loyalists. And, there does not seem to be any faithless electors, which is how it should be. We live in a democracy. The people still more or less choose the president, ultimately, even with this silly anachronism in place.  

As the knight says in an Indiana Jones film, they chose unwisely. The new Congress, then fully Republican (again, unwisely), will make the final announcement in January with Vice President Harris presiding. Shades of 2000 without Bush v. Gore.

How depressing. Humphrey, Johnson's vice president, and loser to Nixon in 1968, skipped the job. Jefferson was vice president and oversaw the count of his own election. That wound up to be a tie, settled later.  

Film and TV

The Svengoolie film was an amusingly silly and generally well-paced film from 1960 (Dinosaurus!) about two dinosaurs and a caveman coming back to life. Toss in a cute kid, a stereotypically bad baddie, and some stock characters (the semi-love interest has the most flavor), and you have a fun drive-in type film. The caveman comes off as the most interesting character! (The actor also has the most credits.) 

An engineering team is doing some work on a Caribbean island and finds two dinosaurs in the ocean. A caveman pops up too and all are brought back to life with some lightening. Forget about the dinosaur. The whole thing works out fairly well special effects-wise.

The final battle seems a bit tacked on. Why does the T-Rex go to the outpost where they are planning to stage a last stand?  Do they lure it there in cut footage? The caveman dies saving others and the gentle dino is attacked by the T-Rex and sinks in some quicksand. 

Torrey DeVito is the lead in Write Before Christmas (ah a pun), a Hallmark Channel film that successfully (overall) tries something a bit different. She breaks up with her boyfriend and sends the five cards she planned to send to her to people she cares about. And, we see various subplots involving them too. 

Various familiar faces. The actress has been in a few t.v. shows including Chicago Med, which I checked out (the library didn't have the first two series, so I checked out the third). Didn't interest me.  

The Native American-related book recently referenced cited something a character on the television show Longmire said.  Longmire is a Western crime drama. 

I thought the first episode was well done. The acting and setting kept my interest. Nonetheless, yes I have a low threshold these days, a few things bothered me. It has various stereotypes that annoy me.  

For instance, you have a big city detective working for the sheriff's office and she is surprised by basic tactics about interviewing people without showing all your cards. He has a sense of honor that involves basic things that make him supposedly special. 

His daughter secretly dates (or has sex with) his deputy. Come on. He personally goes alone to dangerous places, setting himself to be shot in the very first episode. Tiresome. I know the drill. I liked The Closer though it has various limitations. 

It still annoys me. You cannot just have a simple murder mystery. Two shows in. Everything has to be fraught. I'm not in the mood for it.  Also, so much killing after a while gets a bit much. I will try to find a series to delve into elsewhere.  

I guess I'll just take it as a one-off though the female deputy and maybe his daughter have some potential. 

How to End Christian Nationalism

Amanda Tyler (not to be confused with another lawyer with that name) is the executive director of the Baptist Joint Committee on Religious Liberty (BJC) and co-hosts a podcast entitled "Respecting Religion." The first thing you feel about her is how reasonable and nice she sounds. 

So, it is not surprising that she was taken aback when a reporter referenced her "radical" concern about Christian Nationalism. Nonetheless, as she notes in her new book (How to End Christian Nationalism), it still is an uphill battle. It is somewhat "radical" to make a strong effort to fight it. 

Christian nationalism is the belief that being a Christian is necessary to be a good American. As a Baptist and American, she thinks this violates her core religious and American values. 

She also helped to write a report, a joint effort with the Freedom From Religion Foundation, showing how Christian Nationalism was involved in the January 6th insurrection. Although both organizations have somewhat different beginnings, they strongly believe in the separation of church and state.  

A sign of her strong stance is that she flags the usage of "under God" in the Pledge of Allegiance and the national motto, which is repeatedly handwaved even by Justice William Brennan, a strong separatist. 

I agree with her that these are troubling governmental endorsements of religious belief. She also notes the school calendar favors Christians. Structural discrimination gets to be so taken for granted that we do not recognize how we benefit. 

The book is a how-to geared to Christians. Each chapter ends with a biblical reading. (She uses the Common English Bible, which is not one I usually see cited.)  Tyler notes that Christians have a special responsibility to address Christian Nationalism since they have benefited from its practice for so long. Christian Nationalism is also correlated with racism.

She provides eight steps, including understanding Christian Nationalism, grounding oneself in God's love, denouncing violence, committing to the separation of church and state, taking on Christian Nationalism at home (including from the pulpit), organizing for change protecting religious freedom in schools, and taking your place in the public square. 

Tyler argues that the fight against Christian Nationalism will be a long battle that will not be won soon. Nonetheless, some victories are possible, including defeating (for now) attempts to use school chaplains in Texas public schools. The result of that 2024 elections will bring many more battles.  

Change often has to come from within. Amanda Tyler's efforts as a believing Baptist/Christian are particularly important. This book is a helpful introduction. 

A real bad apple in Biden's clemency barrel (Cash for Kids)

Today, President Joseph R. Biden, Jr. is granting clemency consisting of 39 pardons and 1,499 commutations.

President Biden has made some notable pardon/commutation moves, including involving marijuana penalties. The latest move sounds impressive numerically. There are more to come.

The numbers are somewhat misleading. If you read down the pardon list, you can see just from the first names that we are dealing with people who already served their time. The pardons would therefore be a means to sweep their record clean. Helpful and symbolic but limited. 

One person commenting noted:

The pardons granted by Biden this month are very interesting. The grants were given to individuals who [often] had not served any time - just probation and none had been sentenced to more than 3 years. Many only had probation.

Many of the commutations were "categorical" (see first link) following certain criteria. The latest tranche is largely of this caliber. As the Administration summarizes:

The nearly 1,500 individuals who received commutations today have been serving their sentences at home for at least one year under the COVID-era CARES Act. These Americans have been reunited with their families and shown their commitment to rehabilitation by securing employment and advancing their education. 

The people were convicted of non-violent crimes, not likely to crime again, and so on. Michael Conahan, the "cash for kids" judge, was one of the people covered. This resulted in some disgust, including in the general remarks at LGM. Skimming the comments, I saw one person who generally pushed back, noting the move helped lots of people. 

Trying to weed through all the names to find one really bad apple could have delayed things. [I'm inclined to doubt some searching software or whatever couldn't have picked out his name.] He was not in prison (home confinement) and served much of his time (sentenced in 2011, due out mid-2026). The guy did not simply get a slap on the wrist.

To remind:

In what came to be known as the kids-for-cash scandal, Conahan and Judge Mark Ciavarella shut down a county-run juvenile detention center and accepted $2.8 million in illegal payments from a friend of Conahan’s who built and co-owned two for-profit lockups.

It is quite understandable that the victims and their families would be upset about the commutation. The mitigation is both that he already received a long prison sentence (Conahan is over seventy and was released during COVID since he had multiple health problems that put in more at risk) and that he was not singled out. He was part of a class of people. 

The pardon power is used too sparingly, especially with our nation's overly harsh and inequitable criminal justice system. It is misguided to spend too much time on this singular case. This is not a Marc Rich situation (Clinton) where someone specifically received special treatment. 

I would accept if Conahan was singled out as an exception to the categorical commutation. I also would not be surprised if not every single one of the rest were mundane cases. 

The categorical approach overall is a fair policy. It will likely help a few dubious cases, tempered by the fact that repeatedly the assistance will be overall less than meets the eye. That applies here too. 

Also, if you keep on trying to find "special cases," this guy won't be the only one affected. More marginal cases would be too. As noted by Biden, this policy helps motivate others to follow suit. The overall net value of the process holds true. 

He committed a horrible crime with civil and criminal penalties arising as a result. Will the people who suffered benefit much more if the person who received thirteen or so years of confinement would receive a year and a half more?  

It amounts to a symbolic burden, which matters. People care about such things. Nonetheless, let's be realistic about the net result. We should include the general good these bloc actions bring.  I think the anger and demand he gets another year and a half is a gratuitous feeling of vengeance. 

The bottom line is that we should look at the big picture. We should not latch on to single actions that result in the usual strum and drang. Careful treatment can avoid some unpleasantness. Still, life is a bit messy.  I am okay with this move in context. 

BTW, the Hunter Biden pardon remains valid. Enough with this "hurt Democrats for years" bullshit. 

SCOTUS Watch: Orders and Opinions

Order List

After granting cases on Friday, the Supreme Court released the usual ho-hum Order List on Monday. 

Alito didn't take part in a couple of cases, as usual, not saying why. I will continue to flag that until the conservatives join the liberals in saying why they recuse, which the new ethical guidelines encourage. 

As usual, there were various odds and ends. The most notable thing is some statements/dissents from some conservatives in hot-button cases. 

Alito/Thomas would have taken a case involving affirmative action while Gorsuch said the matter is moot with a change of policy. 

Thomas/Alito and Gorsuch (less bluntly) flagged a case where the Hawaii Supreme Court received some attempt by thumbing their nose at the current SCOTUS gun policy. They granted it was not a ripe case but were concerned about the issues. 

Kavanaugh without comment and Alito/Thomas (on standing) would have taken a case involving parents asserting a right to know if their children came out as trans at school. Alito was sympathetic about an unenumerated right of parents raising their kids, a week after the trans case involving parents concerned about the health care of their children.  

Alito argued that standing has been used to wrongly avoid certain cases. Justices are selectively worried about such prudential standing decisions.  Chris Geidner shows how hypocritical/FOX News-y Alito/Thomas is here to reach out to take this case. 

Opinions

The first two opinions were a per curiam and a one-line statement that said a case was improvidently granted. IOW, "We shouldn't have taken it."

On Human Rights Day, we had the first signed opinion of the 2024 Term. The day was the 76th anniversary of the passage of the Universal Declaration of Human Rights. Our courts, including the Supreme Court, provide a fundamental means to uphold our rights. Rights ultimately rely on us all.

Anyways, back to the Supreme Court, and its first signed opinion of the term.  Justice Jackson, who will get a chance to fulfill a dream on the stage, wrote a unanimous opinion in an immigration dispute. 

The facts might be sympathetic, but the Court determined that a challenge to an alleged "sham marriage" determination should fail. Jackson argued the law gives the agency involved discretion without the courts having the authority to second guess. 

There was a dispute over the law here so the answer to the question was not totally clear. I will not pretend to argue that I know the right answer. Suffice it to say, that a unanimous court is not necessarily a right court. Ultimately, the value here is to have an agreed-upon answer that can be applied consistently.  

As usual, the opinion announcement was not live-streamed, so you will have to wait for Oyez.com to release it sometime after the term (or find where it is stored and access it). Now, the whole thing is announced on social media, including court reporters telling us how many boxes of opinions there are as a sign of how many opinions there might be. 

The Court decided having an opinion day was so much fun that they would have one on Wednesday too. As with the first "opinion day," it turned out to be another case of them deposing the case as improvidentially granted ("DIG"), which was not surprising from the coverage of the oral argument. 

The case involved the use of NVIDIA chips by crypto miners. Okay. So we had four opinions this term, one a per curiam (unsigned opinion of the court) released separately. Two opinion days involved DIGS and only one with a signed opinion. 

More Orders 

The Supreme Court rejected a stay of a coal regulation. The "brief" order business is the standard talk for a standard rejection without comment. Stays are not usually granted though sometimes justices at least show some concern about the EPA these days.  

The Court also dropped an order after their Friday conference that added two more arguments. Thus, two of the matters they "relisted" for further discussion have been addressed. More orders are due Monday. 

Court Seating 

The Supreme Court livestreams audio but does not provide video of oral arguments. Also, people like to be present in the room. But, there is limited seating, resulting in some problems. The Supreme Court is starting a trial lottery process for public seating.  

The inability to provide video or photographs leads to the usage of sketch artists. William Hennessey, a long-time SCOTUS sketch artist, has died. 

Thus ends a busy if not too profound week. 

Mets Get Another Yankee Castoff

Well. The Mets did sign Juan Soto.

First off, it's ridiculous money. I suppose people will quantify it to show otherwise. I stick to that. 

$51 million a year for fifteen years with an opt-out after five years that is overridden with more money is ridiculous money for one player. Someone who is not a five-tool player or anything as compared to Franciso Lindor. He's a future DH.  

A big thing here is symbolism. The Mets have arrived! They beat out the Yankees. Okay. Well, the Yankees aren't the Yankees of the old. 

Soto's move to the Mets underlines the point. It shows that the owner is willing to do what he can to make the team great, which is nice.

The signing raises the stakes. Last season, the Yankees felt like "World Series or Busts." They were a bust when they got there. The Mets, with a patchwork pitching staff, came quite close to getting there. 

Now, Mets fans have a rightful expectation that the team should make the playoffs each year and, in fact, get far along. One sports reporter argued that the Mets are still not as good as the Dodgers. 

This is fair since they have a generation talent along with a lot more. So, $765M will get you second place in the playoffs or something? 

Many people that the billionaire owner would eventually seal the deal. At the end of the day, it's about money. The Mets play in New York City. They are a credible organization these days. The Yankees are nice but again the Mets almost got to the World Series. So, he can win here too. Why not? 

I am somewhat surprised. Yes, I am also not as EXCITED as some people. It's done and it's silly not to think it will help the team win. It is a sign that the ownership will do stuff to make that happen. And, what else will the guy spend his money on?

The local football teams are a mess. It's nice that the Mets, including with David Stearns (President of Baseball Operations) someone you can trust to run the operations side, have a promising future.  

Let's go Mets. They need some more parts to settle the Pete Alonso situation. But it has been a rather exciting off-season so far.