SCOTUS Wrap-Up

Term Wrap-Up

Amy Howe's SCOTUS term summary is entitled "Roberts court hands major wins to Trump, conservative movement in 2023-24 term." 

There is even a "Trump docket" where Trump and his allies were 3/3 (the statutory case warrants a bit of an asterisk pending a determination of how broad it will apply). 

Likewise, there was a "war on the administrative state" and wins for conservatives on voting rights and regulating the homeless. The fact it could have been worse doesn't change these things. 

One conservative said the term was fine, except for the two Trump constitution cases (not surprising given his long article taking another view in the insurrection case).  

On this issue, there were signs of "Trump exceptionalism."  Other than that, how was the play, Mrs. Lincoln? These two cases alone are days of infamy.

A major problem this term was ethics. Alito and Thomas had repeated problems. Roberts failed to show up. 

And, the ethical guidelines were so lamely respected that only the liberals even cited them to inform the public about why they recused. Senate Republicans cried foul even when the Democrats tried to subpoena Leonard Leo and Harlan Crow. Total fail. 

The summer will have little official business. There are summer orders, miscellaneous orders, and whatever news the Alitos will bring us. TBD. 

There is plenty of time to discuss the Supreme Court and the courts. Likewise, lower courts will continue to decide things. Or not decide things, if you are Judge Cannon. 

Books 

I noted that Stephen Breyer's latest book is a trudge. His aim (why else go on talk shows promoting it?) is to attract a wider audience. The book is not written with that in mind. I appreciate the goal. The follow-through was dull and I'm more likely than some to plow through this sort of thing.

His first non-technical book, Active Liberty, did a better job. It was originally given in lecture format. It's a small size book that is around 130 pages. It is a more bite-sized method to inform the public of his overall pragmatic vision. 

The Originalist Trap by Madiba K. Denne is another book aimed at a wider audience. It's a mixed bag. She argues we should interpret the Constitution using an "inclusive constitutionalism" that promotes democracy for all. There is no completely objective approach here.

The subtitle is "How Extremists Stole The Constitution and How We the People Can Take It Back." She worked among other places at the Brennan Center of Justice. She also has had teaching jobs. This is her first book. 

The book is also mostly serious with some attitude (she is a writer at Balls and Strikes after all). There is a clear audience being addressed. She is not trying simply to be neutral. The subtitle shows upfront what she thinks about originalism. 

My approach is to use current knowledge to apply constitutional terms. It is asinine to try to determine the often ill-informed view of people from times past. And, as she notes, the whole thing is applied selectively. The often more inclusive Reconstruction Era principles are too often ignored, for instance. This is not the way to "do law."

The first fifty pages probably could have been more crisp. We then get chapters about substantive due process, elections, and the census. Overall, she discusses how originalism is not the way to go there. Surely. 

The last chapter is about fighting to "take back" the Constitution. People can vote (for those who pick judges and sometimes the judges themselves), serve on juries (she supports jury nullification), frame battles using inclusive constitutional ideals, and use legislation with an eye to the future. 

Lawyers can strategically use lawsuits, help inform, help activists when they need legal support, and promote inclusive constitutionalism however they can, including in legal education. They can also push to limit the harm. Judges can also use dissents to frame, appeal to legislatures and others, and as a voice for a better future.  

Everyone should not be defeatist. A reminder now regarding the election. Mark Tushnet in 2020 (before Barrett) also provided some "popular constitutionalism" lessons which can be helpful. A basic approach here is not to grant legitimacy to Supreme Court rulings when not warranted. 

One response to the infamous Dred Scott ruling:

This Dred Scott decision, we need hardly say is entitled to just so much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room.

The Trump immunity ruling is as worthy of respect, except that might insult the wisdom of drunks. Since we can't have good things, the sentencing in the New York trial will be postponed to at least September. It was due next week!

I have said in the past that we should have a long-term vision. Stuff has improved in the last twenty-five years though we have had some backsliding. But, that's annoying.