Supreme Court Watch

Update: Friday afternoon brought news the Supreme Court will hear a few more hot button cases, including the power of the executive to remove the head of Elizabeth Warren's baby (Consumer Financial Protection Bureau).  The two immigration cases raises the typical Roberts Courts scenario of Gorsuch perhaps voting with the liberals (sorry to use that word, folksy, know you don't like to put justices in boxes). 

Monday was a holiday so Tuesday was the first day of oral arguments and was an order day.  The order list was the usual stuff of little note with some interesting cases mixed in (lots of cases are not certworthy) and things like filing under seal and such that I wish there was an Explainer to clarify. Since dissent from denial and not taking a case requested by the government is of at least a bit note, here's a summary:

The justices also denied the federal government’s petition for review in a dispute over lawyers’ fees in a case filed by a Stanford University graduate student who was inadvertently placed on the Transportation Security Administration’s “no fly” list. The U.S. Court of Appeals for the 9th Circuit ruled the district court was wrong to find that the federal government had not acted in bad faith, and now that ruling will stand. Justice Samuel Alito indicated that he would have granted the petition, while Justice Elena Kagan was recused from the case.

Religion Clause Blog flagged a denial involving a high school lesson involving Islam.  A student did not want to take part in a lesson plan (including writing answers on a worksheet) with material (including two words of Islamic doctrine) she did not accept.  This would be an open-ended opt-out for those who oppose ideological content that they don't accept.  There is also a bit about Muslims having stronger faith on average than Christians, a dubious statement of fact, but not something that raises First Amendment concerns.  It does show that teaching religion warrants special care and not sure how that line staid in there to cause problems.

Near the end of the order list, we see that Chief Justice Roberts did not take part in a case against him and others ("et. al.").  Doing a docket search via the docket number, it turns out to be against Roberts and Trump, "President" (scare quotes in original) making a one person, one vote argument against his electoral college win.  Roberts was included since he allegedly wrongly swore him in. The petition, which again doing a search seems to be a result of an actual lawyer, is quite a read. Let's say it includes some personal beliefs on Trump himself.

Though the solicitor general did waive a reply, this thing went thru two levels of federal court review as shown by the "appendix" with a lot of material.  On some level, this is a waste of federal court resources though it probably a bad idea to sanction him for it.  It is on another level ... well fun ... to read the stuff and argue that hey equal protection concerns (which after all are based on amendments that come after Art. II and even the 12A that set up the Electoral College) do arise here.  I won't go into his treaty claims (admit not reading his explanation).

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The major set of cases this week involved an appointments dispute arising in Puerto Rico that in monetary terms can involve billions (really?) of dollars.  A trivia point is the number of current or previous federal solicitor generals (three) involved in the argument.  The nuances of the issue are important though I won't try to parse them here. This is one of those major cases of national import that do warrant Supreme Court review more than the average case.  It is also one of those situations where a single national holding is important on some level above and beyond exact what it is.

The preview helps clarify that the case partially turns on if this is merely a local matter (Puerto Rico) so perhaps they are not "officers of the U.S." that require Senate confirmation.  OTOH, there is a doctrine in place that could prudentially accept the holding of the board in question anyways. The fact Puerto Rico is a territory [which popped up in the non-unanimous jury case since it has them] also is relevant though when the lawyer for the employees (the one non-S.G.) brought up the Insular Cases (which treats them differently), particularly for them to be overruled, the justices seemed to think they were irrelevant:

Further evidence that Congress does not need to comply with the appointments clause, they say, can be found in the territory clause of the Constitution, which gives Congress “full and complete legislative authority over the people of the Territories and all the departments of the territorial governments.” And historically, they add, Congress has not always complied with the appointments clause when selecting officers for U.S. territories.

By chance, Kansas has another case up for oral argument in the second week.  It involves if a state law against identity theft and such involving citizenship  data is pre-empted by federal law. An important question of local discretion.*  The final case (I'll skip some statutory case few care about) involves the reach of a pre-Trump Court case (decided 5-4 though a later case regarding applying it was 6-3 with Roberts in the majority) the blocks mandatory life with parole for minors even in homicide cases.

The case will help clarify how the new membership will deal with the old precedent.  It also has special cachet since it involves the D.C. sniper. The chance he personally will ever see the light of day is dubious, but the decision will affect various others in prison.  One issue in the case is the artificial nature of addressing a case that occurred years before the Supreme Court decided this issue. As often occurs, it also has nuanced technical questions.  But, the bottom line for me is that it makes sense to merely give a person in this situation a chance to argue that they are not so hopeless to warrant again merely the hope of parole.  And, at set periods -- you know like Charles Manson had -- have parole hearings that the body in question can simply use to deny him parole.

I was online when the sniper attacks occurred and one person over at Slate reminded me of the special fear involved at that time when going out in a certain broad area put you at risk at being shot by a sniper rifle.  I'm glad I was not doing my year of execution posts the year that John Allen Muhammed was executed.  Problems could have been cited and were by three justices at the time. People have mitigated Malvo's guilt to some degree, but don't know how far you can go there for the ten deaths and other people wounded here.  But, simply put, if he is out in forty years or so, would it really not be fair justice?  Still, that isn't even the point here. It is the chance for him to argue he warrants parole at some point.

The breadth of the original ruling was fought over by Alito and Sotomayor particularly in certain orders since the ruling and this one might clarify that. And, this too is function of the Supreme Court, even if we might not like the end result.  I do feel compelled, though others might say we need to accept reality bad as it might be (there is a basic legal concept there too), to flag that two people on this Court -- including Kavanaugh who appears a possible swing guy in the Kennedy role -- are tainted.  This is the first full term (Kavanaugh coming on a bit late in 2018) with both of them and there are signs it will be when the new court "truly arrives" so to speak.

I continue to find the whole body tainted.

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* Gorsuch in an earlier case jumped in to make a joke of sorts when the government said such and such was an easy call before the person's opening time was up. So, it wasn't the first breach (as suggested by one article), but Sotomayor did interject (corrected by Roberts) here before a person was done to start to ask a question. Old habits die hard.