SCOTUS Watch: Opinions

Purcell Principle 

On Wednesday, a stay was granted resulting in a Louisiana congressional map in this election cycle that contains two majority-Black districts. The latest in a long and winding battle has a short-term positive result for Democrats. 

The longer effects are mixed. The liberals dissented with Jackson alone writing a short opinion. As Chris Geidner noted, it is helpful when liberals "lay out their vision for approaching this moment."  

The whole thing involves the so-called "Purcell principle" (not the hand sanitizer) that bars change deemed "too close" to elections. Liberals repeatedly have argued the principle was applied too strictly. Sometimes, a dispute arises in an election year (such as needs arising during COVID) warranting action. 

Justice Jackson argued that there was still time to address the matter The district judge could have handled things by early June. That is not too close to an election. Thus, we have some clarity as to why an apparently positive result for the liberals involved the liberals dissenting. 

The whole dispute is somewhat convoluted, including intra-party Republican disputes affecting line drawing. We also have two people named "Landry," who are not related (h/t Amy Howe). Is this a Friday Night Lights episode? Wait. That was Texas.

Here is another discussion about what is involved. Simply put, there is not a clear "obvious" answer here. 

Opinions 

Standard gripes: back-ending all these opinions is bad policy. Also, opinion announcements should be available on the SCOTUS website, both audio and a transcript. Oyez.com will eventually have them. But, if SCOTUS thinks opinion announcements are useful, share them with all of the class.  

Kagan and Sotomayor each had short unanimous opinions involving minor issues of federal statutory interpretation. Sotomayor's opinion dealt with an issue where the oral argument was held in late April.

The big decision -- from a case argued all the way back on October Third -- was written by Thomas. A broad attempt to attack the Consumer Financial Protection Bureau failed. Congress adequately provided authorization as required by the Appropriations Clause. 

This is the ongoing saga of going for broke conservative attacks failing. The Supreme Court still has opportunities this term to do damage without going THAT far. The domestic violence gun regulation case that is still outstanding is likely to be another "see? We are reasonable!" opinion.  

Kagan had a short concurrence (joined by Sotomayor, Kavanaugh/Barrett, the latter pair doing an O'Connor/Kennedy impression) noting she would also note that history and tradition as a whole (not just original understanding) made the case. Roberts probably basically agrees but he assigned Thomas the opinion and wasn't going to sidestep him. 

Kavanaugh and Barrett's silent concurrence here suggests their support of Thomas' originalism in the Second Amendment context has some shades of gray. An influential appellate litigator on Twitter suggests they are sending a message (as they have before in various respects) to lower courts not to accept extreme arguments. Again, it's something they do from time to time. They promote the image of being reasonable swing voters. 

Jackson concurred separately, noting that she thinks the Supreme Court should be particularly wary of limiting the powers of other branches unless there is a clear requirement. Interestingly, she did not join Kagan's opinion. Jackson has a bit of liberal originalism in her blood.* 

She also has promoted a pro-democracy approach honoring the discretion of other branches. She doubts implied ("unstated limits") restrictions to enumerated powers. I would be interested to hear her discuss the Court's dubious immunity jurisprudence.  

Alito (who still has no majority opinion) dissented with Gorsuch. 

What's Next 

There was a conference today. 

SCOTUS will release an Order List on Monday. 

It was announced that there will be more opinions next Thursday. 

Updated: Alito Sign Controversy

After I wrote this, NYT reported on an account of an upside-down flag (a sign of distress) at the Alito house for an unclear number of days in January 2021. 

The article says that "Word of the flag filtered back to the court, people who worked there said in interviews." I don't recall the story coming out then. Why is it coming out now? 

The neighbors understand this to be a pro-Trump/Stop the Steal message, which was popular at the time. 

Alito claims it was a brief response by his wife to objectionable neighbor signage. The article notes his wife had a dispute with another family with an anti-Trump sign. The wife appears to be about as thinly skinned as her husband.  

[There continues to be a debate regarding the exact nature of the Alito-neighbor dispute.] 

The article also notes that in other courts this could be deemed an appearance of bias, especially since SCOTUS was examining election / January 6th related cases. We are told that we have to bend over backward to protect Trump's interests. But, where is the restraint by conservatives?

[Again, I don't recall the flag business being reported at the time. But, if it was common knowledge, the appearance of bias would be more of a problem]

SCOTUS does not have a binding ethics code. Scalia recused from the Pledge of Allegiance case because he opined on the subject. A sane regime would be to have a process to deal with this sort of thing. Self-restraint alone isn't the rule for other federal judges serving "good behavior." 

Also, SCOTUS has rules applied to employees against public display of partisan views. I find that questionable on First Amendment grounds. Why should some guard or whatever not be able to display political signage? 

I do not find this specific data point particularly horrible. It would be different if the Alitos had the flag there for the whole post-election cycle. It is more a sign of how petty they are. It is of a piece with many other things. 

[This was my first feeling. Some are more angry about a flag flying at a Supreme Court judge's home that symbolizes "the Trump stolen-election bat signal on his flagpole" to cite a useful Sheldon Whitehouse "jump the shark" thread. Some basically label Alito as treasonous. 

My reaction still is focused on the ethical side of things, including how Alito is using Fox News to tell his side of things instead of, again as Whitehouse says, as a neutral ethics process. But, yes, the flag is a horrible look.

As I said originally, "Enough!" Nothing is likely to be done short term, but this underlines the need for a Democratic trifecta to give us a fighting chance of that happening.]

Alito's thin-skinned nature is nothing new. We also had his wife crying because she felt certain questioning during his confirmation hearing was too mean. Goodwin Liu being too mean to Alito was one reason his nomination to the Court of Appeals was blocked.  

A binding ethics code, with a means to formally submit complaints, and a public report should be set in place for the Supreme Court. The conservatives cannot even openly explain why they recuse, even with Kagan and Jackson showing it can be done. 

ENOUGH!

An update on old Thomas news is almost "yawn" now, but his ethical problems have not gone away. 

==

* I am not a fan of originalism. 

Nonetheless, when interpreting the Constitution, it is appropriate to factor in original understanding along with other analytical criteria (text, structure, doctrine, etc.).  It is part of the story.