SCOTUS Watch: Ethics and Opinions (Part II)

Ethics

Senate Judiciary Committee Chairman Dick Durbin and others appeal to Chief Justice Roberts to address ethics. Why? There is a likely feeling that he is the CHIEF JUSTICE, having special responsibility. 

But, he is actually merely a "first among equals" with no special powers. The more specific reason, which is not clarified enough, is that he is the head of the Judicial Conference of the United States. As its website notes:

It convenes twice a year to consider administrative and policy issues affecting the federal court system, and to make recommendations to Congress concerning legislation involving the Judicial Branch.

Senator Whitehouse explains how the Congress established this "policymaking body." Congress is empowered to do so, especially under the Necessary and Proper Clause. The Judicial Conference handles ethics. 

Roberts has a special responsibility as the leader of the conference. He also has a duty as Chief Justice. Chief Justice Warren took that duty more seriously, pressuring Justice Fortas to retire for much less than what Thomas did. 

I partially disagree with this take that overcorrects the valid concern that people are focusing too much on ethics alone. 

Ethical abuses, including the Chief Justice ignoring them, is a useful way to show the Supreme Court is abusing its power. Once you cite someone as an abuser, not worthy of trust, there is an easier path to general limits on their behavior. 

The analysis at one point even suggests Justice Thomas did not do something worthy of impeachment. His activities suggest "bribery" (trying to cover things up is a red flag), which is a specific ground for impeachment. 

Yes, and many critics say so, the Supreme Court has crossed the line beyond ethics. The slow-walking of the Trump immunity case as well as how they overturned abortion rights is an overall misuse of power. 

It is a factor in why I support court expansion. It is not merely a partisan "get you back." There are a variety of possible court reforms to recalibrate how the Supreme Court does its job. Change often comes when the current personnel can not be trusted to do the job properly. 

Reforms can also address the lower courts, including handling universal injunctions, which give much power to affect national policy to possibly a single district court judge. The Senate is also considering a bill to expand the number of lower court judges. 

Republicans realize that the criticism of ethics is not a stand-alone. If it was, they would be more likely not to be so against ethics reform. Nonetheless, it is useful to highlight soft spots. 

Bankruptcy 

The Supreme Court recently determined a bankruptcy rule violated the constitutional uniformity requirement. The question then becomes what relief, weighing everything involved, is required. 

United States Trustee v. John Q. Hammons Fall 2006, LLC in a 6-3 opinion written by Justice Jackson determined a refund was unnecessary. She appeals, using her favorite theme, to congressional intent, to show why this is so. It also does not violate due process of law. 

Gorsuch dissented with Thomas and Barrett. 

"Aliens" vs. "Non-Citizens"

Justice Jackson appeals to the "plain text and context of the statute" to decide the proper procedures for the removal of noncitizens from the United States. Justice Gorsuch joined her along with the other liberals. This time it was a dissent.

Justice Alito wrote the majority opinion. The more conservative approach is unsurprising as is Gorsuch dissenting. Gorsuch is regularly libertarian when it comes to federal power. I will allow others to debate the law here.

What stands out for me is that Alito continues to use "aliens" instead of "noncitizens." The liberals do not do so. The new conservatives do not. I will have to check to see if Thomas does so. Nonetheless, I do know Alito insists on using "alien." Using a term his wife might understand, it's a red flag. 

The term is criticized as dehumanizing and not suitable for our ideal national character. The Biden Administration announced in 2021 that they were not using the term "alien." 

Bump Stocks 

The Trump Administration banned bump stocks after a shooting spree in Las Vegas murdered fifty-eight people and wounded 500 more. To quote Justice Sotomayor:

He did so by affixing bump stocks to commonly available, semiautomatic rifles. These simple devices harness a rifle’s recoil energy to slide the rifle back and forth and repeatedly “bump” the shooter’s stationary trigger finger, creating rapid fire. All the shooter had to do was pull the trigger and press the gun forward. The bump stock did the rest.

The regulation was challenged on statutory grounds. Justice Thomas for the conservatives [Alito providing a short concurrence saying the "horrible shooting spree" doesn't change the law] agreed that the policy went beyond the statute. 

Sotomayor dissented from the bench. The Supreme Court wrongly does not provide audio, so we have to wait months until Oyez.com releases the opinion announcements to listen.  She argues the case is easy; the majority makes it hard:

The majority looks to the internal mechanism that initiates fire, rather than the human act of the shooter’s initial pull, to hold that a “single function of the trigger” means a reset of the trigger mechanism. Its interpretation requires six diagrams and an animation to decipher the meaning of the statutory text. 

The case does not turn on the Second Amendment. Justice Alito grants in his concurrence that Congress can pass a law banning bump stocks. They should do so. 

My understanding was that there was a good chance that the regulation would be upheld. OTOH, the oral argument was concerning. Multiple justices were doubtful. 

A liberal SCOTUS analysis argues the right answer in this case is debatable. Sotomayor argued that a rule against ineffectiveness favors her approach. Both sides think they support the "obvious" interpretation. 

Realistically, especially when the lower courts divide, these cases are not obvious. When Sen. Feinstein said legislation was needed, cited by the majority opinion, this is partially what she was talking about. And, if there is room for discretion, who has the final say? A conservative Supreme Court. 

There is a hazy test: just reasonable is a regulation? At some point, passing a new law (which is hard) is necessary to clarify matters. The same concept (change being much harder) applies when passing new constitutional amendments. 

The federal government did not prosecute the person. A "rule of leniency" is less clearly necessary here. The reasonable division between the lower courts and justices here also counsels that this is not obvious stuff. 

I am inclined, unless there is a crystal clear case, to agency deference. The rule can be changed. Congress can pass a law to change it too. The ideological split of the opinion is also suspicious. Bottom line, it is now left to Congress.

We have another message bill for the U.S. Senate Democrats.

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There will be an Order List on Monday and opinions next Thursday. We are likely to also have a second opinion day next week. Wednesday is a holiday (Juneteenth). 

And, yes, we should not cheer the abortion ruling handed down yesterday too strenuously. I said so and will say so again. See also.  I do think that red states have enough anti-abortion laws to remind people (maybe, I should say "women") that they are not safe.