SCOTUS Watch: Order List & Edwin Kneedler Retirement

Today's Order List is another mostly ho-hum affair.

They took one case, cited in Relist Watch, that Chris Geidner on Bluesky summarized:

The Supreme Court grants one new case for review — a case over the effects of an earlier jurisdictional ruling on the later resolution of the case — in this morning’s orders.

Raffi Melkonian, a top appellate advocate who posts online, noted it was his case, though someone else is handling the SCOTUS appeal. The details of the lawsuit, especially given HHS Secretary Kennedy Jr.'s beliefs, are notable:

First up is The Hain Celestial Group, Inc. v. Palmquist. Texas residents Sarah and Grant Palmquist filed a Texas state-law suit against Hain Celestial (a New York/Delaware food producer) and Whole Foods (a Texas-based grocery chain), alleging that their son developed autism and related disorders from consuming Hain’s Earth’s Best™ baby food — sold at Whole Foods — which allegedly contained traces of heavy metals. Hain moved the case to federal court, asserting that the Palmquists had fraudulently included Whole Foods in the case to defeat diversity jurisdiction under a Texas statute protecting “innocent sellers” from liability. 

(Relist Watch.) I am not saying this is why they took the case. Still, that caught my eye.

Justice Jackson recused in one of the cases covered in the Order List, noting previous judicial service. The liberals provide their reasons, unlike the conservatives. 

Wednesday brought with it the 160th—and last—oral argument in the exceptionally distinguished career of Deputy Solicitor General Ed Kneedler. Not only did Chief Justice Roberts take a moment to note the occasion (and the fact that Kneedler holds the “modern” record for appearances before the Court), but he led the justices (and the Courtroom) in a standing ovation for Kneedler. Talk about something you don’t see every day (or, really, ever). The special recognition was well-deserved.

Steve Vladeck flagged this from last week's oral arguments. The transcript does not include these comments. This is one of those things most of us do not get to experience because SCOTUS does not provide full coverage of its open court proceedings. There is no good reason that they do not.

Adam Liptak provides additional coverage, including this comment: 

“I recall that on two occasions you and I argued on the same side here, me representing a private client and you the United States,” the chief justice said. “We lost each of those cases. I’m sure it was my fault. Mr. Kneedler, thank you for your outstanding service to court and country.”

There is respect across ideological lines for Kneedler, who was a mentor to both Alito and Kagan, previous colleagues. 

There was also a reference to his remarks in a previous event, including in answer to a question about "nonpartisan representation." His reply is also notable:

Mr. Kneedler did not quite adopt the premise. “We are lawyers for the United States,” he said, “and the administration in office is the ultimate determiner of what the interests of the United States are.”

But he ended his remarks on a hopeful note. “We’re all part of a process that is leading us to a more perfect union,” he said, “which means a union in which we are coming together, not apart.”

Kneedler is 79, so he very well might not be leaving the office for the same reason as many others who are more specifically concerned about supporting this administration's "ultimate determinations." 

His professionalism over Democratic and Republican Administrations is notable in these times when that can get you in trouble. And, darn, I wish we could have at least heard those remarks/ovation. 

SCOTUS is back to oral arguments. RK flagged on Bluesky that Lisa Blatt, known for pushing the envelope, got some strong pushback. For instance, "Gorsuch specifically calling out Blatt for saying her opponent lied and is reading aloud parts of her brief angrily."  Blatt is one of those superadvocates who have been up there lots of times.

Court watchers are familiar with her m.o. But it seems that this is particularly notable even for her. 

===

One thing that might trouble current career members of the Office of Solicitor General is this Administration's policies regarding undocumented Americans. 

Karla Cornejo Villavicencio's The Undocumented Americans is a very good set of case studies. Kate Shaw of the Strict Scrutiny Podcast (SCOTUS podcast) recommended her recent fiction book (inspired by KCV's life story), which I could not get into (a bit too stream of consciousness, for instance). I did complete the earlier nonfiction book.  

Footnote material: the title includes an accent over the "i." Also, a frontpiece page includes the motto "Chinga la Migra" (basically, "Fuck Ice"). Also, Kate Shaw's recommendation does provide a (weak) bridge to the above discussion!

Raffaella Petrini Becomes Governor of Vatican City

Rev. James Martin talked about Pope Francis, a fellow Jesuit, including some efforts to appoint more women in positions of authority. Martin was on the Colbert Report, wrote many books (including one on humor), and actively sought to minister to LGBT people.

He wrote Building a Bridge: How the Catholic Church and the LGBT Community Can Enter into a Relationship of Respect, Compassion, and Sensitivity. One thing noted is that Pope Francis supported decriminalizing homosexuality, which would have a significant effect in various nations.

Gay USA, in its recent episode, graded Pope Francis strictly. They argued he provided some lip service to reform while not making any real substantive changes. The basic doctrine remains. I think tone is important, especially since many Catholics don't follow doctrine (see contraceptives) anyway. All the same, the hosts did have a point.  

People can also cite the limits of how they addressed women's issues. For instance, regarding making women deacons. St. Paul's references to women as deacons and "outstanding among the apostles" or "first among the apostles" seems to clash that. 

Francis did do some positive things regarding appointing women in leadership positions. The overall numbers only went up a small amount. There were some significant moves. 

Francis named the first woman to head a major Holy See office, appointing Sister Simona Brambilla to become prefect of the department responsible for all the Catholic Church’s religious orders. The position "ranks higher than the cardinal who has the number two position of pro-prefect." 

Raffaella Petrini was also recently (while Francis probably knew he was dying) appointed as the first governor of Vatican City. A bit of background:

Sister Rafaella Petrini is a member of the American Institute of the Franciscan Sisters of the Eucharist. 

She was born in Rome on Jan. 15, 1969 and gained a degree in political science at the LUISS university in Rome, and a doctorate from the Dominican run university of St. Thomas Aquinas, popularly known as the Angelicum, where she taught classes on “welfare economics” and “the sociology of economic processes.” 

She gained a masters degree in organizational behavior from the University of Hartford in 2001.

From 2005 to 2001, she worked as an official at the Congregation for the Evangelization of Peoples, where she was known as a highly efficient organizer. 

Then, on Nov. 4, 2021, Pope Francis appointed her as secretary general of the governorate of the Vatican City State, the first woman to hold that important position, making her then the highest-ranking woman in the smallest state in the world.

By giving women the top-ranking position over cardinals, Pope Francis has broken a centuries-old tradition in the Vatican. This is notable stuff.

The Catholic Church still has a long ways to go, including birth control, women priests, and divorce. As long as priests, bishops, cardinals, and popes are all men, the institution will have a sexist flavor. 

Rev. Martin has done many good things with LGBT issues. Nonetheless, he is stuck within an institution that remains blatantly discriminatory over them, up to and including blocking same sex marriage. 

Change, however, can and has occurred in the Church. The worldwide church will not be for me and many others. It still is the church for millions. 

We should hope the next pope continues in the footsteps of Pope Francis. And, if he (yes will be a he) can go further, more power to them. For now, goodluck,  “President of the Pontifical Commission for the Vatican City State, and President of the Governorate of the Vatican City State.” 

Symbols of Wider Trump Wrongs

Senator Jon Ossoff, who is up for a quite competitive seat next year, "strongly" agrees that Trump should be impeached:

“There is no doubt that this president’s conduct has already exceeded any prior standard for impeachment by the United States House of Representatives,” Ossoff told the audience at a town hall in Cobb County, adding later that there is “no question” a number of Trump’s actions have risen to the level of an impeachable offense.

The Administration's wrongdoing is akin to a powerful industrial firehose spraying so much water that we have a hard time keeping track. We keep on reading about the latest thing. It can be overwhelming. 

There is a value in symbolic case studies, which provide clarity and allow a special amount of attention. Kilmar Abrego Garcia is an example. He has a powerful story. 

The government clearly made a mistake. It is being reckless and criminal. Yes. They are openly ignoring protected rights. That is not legal. Impeachment is supposedly an overall safeguard. It is a paper tiger in many ways, even if Democrats controlled the House. Even more so now. 

(Impeachment retains some value. The two impeachments of Trump had value. They weren't enough and 14A, sec. 3 was but one additional tool that should have been used.)

So, other methods are used. A Democratic senator went down to visit Garcia. It helped to lead to his being removed from a cruel prison. There have been some implications that there was a positive development in his legal case. And, yes, the courts provide another avenue to fight the Administration.  

[The picture is from the linked story, Photojournalist witnesses Venezuelan migrants' arrival in El Salvador: '"They had no idea what was coming"]

The term "synecdoche" is a figure of speech where the part represents the whole. Garcia is a type of synecdoche of the Administration's detention and expulsion program. 

Michelle Goldberg reminds us about someone else:

Andry Hernández Romero, a gay makeup artist from Venezuela, sent to rot in El Salvador because the Trump administration claimed his tattoos link him to the Venezuelan gang Tren de Aragua. 

There are many, more more, the stereotypical "thugs" tossed about repeatedly, not reflected in the people picked up:

Bloomberg reported, around 90 percent of the migrants sent to CECOT have no criminal records aside from immigration or traffic violations.

The usage of the Alien Enemies Act is patently illegal since we are not at war with the people involved, nor are any other requirements for usage met. One thing that stood out for me, however, was a passage about "time allowed to settle affairs and depart" for "not chargeable with actual hostility, or other crime against the public safety." 

The Administration, however, aims to use speed, in part to avoid court review. The Supreme Court has long recognized that even "illegal aliens" have some due process rights:

It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.

(Citing cases back to 1903. Drawing a line between those here and those who are attempting to enter.) 

[Another symbolic case involved a person supporting autism. OTOH, RFK Jr. is not a big fan of autistic children.]

Aaron Reichlin-Melnick, Senior Fellow at the American Immigration Council, on Bluesky flagged one technique:

There are a lot of cases where ICE has been accused of pressuring parents to agree to be deported alongside their children without giving them anywhere near enough time to make that decision or consult with other family members first. This seems like exactly one of those cases.

The case was another symbol, involving a two-year-old American citizen. When a Trump-appointed judge, who uses "Gulf of America," is concerned, it's a red flag.  

Again, there are many other cases involving children, citizens, and noncitizens. One article:

Trump Has Now Deported Multiple U.S. Citizen Children With Cancer

Appalling but, by now, par for the course. We knew Trump 2.0 would be horrible. He's just going a bit faster than expected. This is why people are fighting. 

To toss it in, there are also lots of symbols of the corruption of this Administration, including numerous corrupt pardons. The article links to a more general story.*

The latest:

President Trump on Wednesday pardoned a Florida health care executive whose mother played a role in trying to expose the contents of Ashley Biden’s diary.

The pardon of the executive, Paul Walczak, was signed privately and posted on the Justice Department’s website on Friday. It came less than two weeks after he was sentenced to 18 months in prison and ordered to pay nearly $4.4 million in restitution, for tax crimes that prosecutors said were used to finance a lavish lifestyle, including the purchase of a yacht.

His mother was a significant Trump donor. Came the same day for another pardon. Michele Fiore was convicted in connection with a fraud connected to collecting "donations to build a statue memorializing a police officer who had been killed while on duty." The level of corruption is so blatant that it is laughable, in a dark humor sort of way.

Again, people can't keep up with all of these things. I respect those who manage to keep track of different categories, perhaps with the help of color-coordinated spreadsheets.

Such is the value of symbols. 

Meanwhile, Senator Ossoff is right. Trump deserves to be impeached. Republicans have the power to stop him. They refuse to do so, even while a few make some noises about how he goes too far. The party jumped the shark. 

==

* The NYT cannot help a "both sides" in which Biden is criticized for not using normal pardon procedures, along with Trump. This again is applied in a bullshit fashion:

Both Mr. Trump and former President Joseph R. Biden Jr. were criticized for ignoring the screening and guidelines of the Justice Department’s Office of the Pardon Attorney in their clemency grants. Clemency experts objected to Mr. Biden’s far-reaching pardons of his son Hunter and other family members, and to Mr. Trump’s sweeping grant of clemency to all of the nearly 1,600 people charged in connection with the Jan. 6 attack on the Capitol.

Yeah, not quite the same, including Trump's ongoing usage of the pardon power to help his cronies. Biden, for good reason, at the end of his term, provides pardons to a few family members to protect them. Trump does a helluva lot more, and it's only a few months in.  

Perspective ... it's a thing.  

A Biden-appointed pardon attorney was fired, allegedly arising from a refusal to recommend that Mel Gibson get his gun rights back. Here's a recent statement she gave to Congress. 

SCOTUS Watch

News reports show why, contra Alito (with Thomas) dissenting, the Supreme Court was correct to drop its late-night order regarding the usage of the Alien Enemies Act and so on. They had buses ready for the airport. Sorry, Alito, not premature. 

Order List 

Last week's Relist Watch flagged a post office dispute with competing petitions. This week's Order List took the U.S. case and turned down the petition on the other side. Otherwise, it was run-of-the-mill housekeeping sort of thing. 

Opinion 

The one opinion was summarized by Mark Joseph Stern on Bluesky this way:

The Supreme Court's first and only opinion today is a technical but important 5–4 win for immigrants. Gorsuch holds that a voluntary departure deadline which falls on a weekend or holiday extends to the next business day. Roberts and the three liberals join. 

The majority first explained why it was appropriate to decide the merits. The majority then acknowledged there were different reasonable ways to interpret the provision involved, but went in one direction using a "customary interpretive tool." 

This led to three different opinions (Thomas, Alito, and Barrett) dissenting over the power of the Supreme Court to hear the question and the merits.  

One or more additional opinions are due next Tuesday.  

Orders 

The Supreme Court addressed a lower court ruling that Kavanaugh had held up by a temporary "administrative stay." The Court let the ruling stand with Thomas, Alito, and Kavanaugh (without comment), saying they would not do so.  

As noted by the lower court:

Ohio Attorney General Dave Yost has eight times rejected a proposed summary of a proposed constitutional amendment, preventing its proponents from circulating a petition and collecting signatures needed to place it on the ballot.  

The Supreme Court generally does not intervene in lower court matters, so the most notable thing here is the three dissenters. The amendment involves limits on qualified immunity and has a good chance of passing. If so, that's appreciated.  

There are also proposed amendments to the rules of Appellate, Bankruptcy, and Civil Procedure submitted by Chief Justice Roberts to Congress as authorized by law. 

Late Friday Watch: The Supreme Court again dropped a late order, early Friday evening. It asked for further briefing in a pending case, including dropping two 19th-century cases to discuss.  

SCOTUSblog Watch

Tom Goldstein, the founder of SCOTUSblog, is currently in some legal trouble arising from his gambling habit. This led to concerns about the website. There is some news:

The site is being acquired by The Dispatch, a right-of-center political news and commentary start-up founded by the conservative journalists Jonah Goldberg and Stephen Hayes. 

Amy Howe is one of the regulars who are sticking around. The main coverage will continue to be free with "plans to develop paid products for legal professionals in the coming months." 

Well, we will see how that goes. 

Two More Executions

Moises Sandoval Mendoza

Sandoval raped and murdered a young mother twenty years ago. He sounds like a screwed up person:

Clinical psychologist Mark Vigen described Mendoza during his trial as "immature" and "psychologically underdeveloped," claiming that Mendoza enjoyed getting away with "being sneaky" and got angry when others criticized him, as stated in court documents.

People who don't like the death penalty might support it for someone who does "evil things" like this. The first link explains how the murder became a cause célèbre. It is sadly far from unique. 

Not sure the value of executing him after over twenty years (Breyer says more). A final appeal unsuccessfully alleged a finding of future dangerousness was obtained illegitimately, including regarding false testimony.  SCOTUS turned it down with its usual no comment order.  

The future dangerousness issue has been a controversy in Texas since the 1980s.  The whole thing is based on questionable evidence and unless in clear cases (there are a few, including escape from prison) is a dubious ground for execution. I say that without commenting on the specific case. 

Texas executed Moises Sandoval Mendoza on April 23. His last words included apologies to the victim. 

James Osgood

Osgood was convicted of the 2010 killing of Tracy Lynn Brown in Chilton County. Prosecutors said Osgood cut her throat after he and his girlfriend sexually assaulted her.

Another rape/murder, this time the conviction was around ten years ago. The sentence was tossed for procedural reasons. Osgood eventually "volunteered," wanting to die. He spoke of eye for an eye principles. The girlfriend received life in prison.

As is often the case, he's screwed up:

Osgood had a difficult childhood that included sexual abuse, abandonment and a suicide attempt. His brain development was potentially hindered because of malnutrition he suffered as an infant.

He confessed. It was a horrible crime. He should have, like his girlfriend, received a long prison term. Executing him adds nothing overall to the public welfare. Few, of course, will cry for him as he reportedly cried as the execution took place. 

Arizona executed James Osgood on April 24th. 

Saving Five: A Memoir of Hope

Amanda Nguyen's book is a two hundred page account of her escape from an abusive father, rape, and fight to pass legislation to provide rights to rape victims. She uses a fable, involving her at various ages, to discuss how she handled the stages of grief. 

[It was a good narrative device if somewhat heavy-handed. She mixes the fable with the rest of the narrative in a basic back/forth approach. It is also the source of the title.]

A particular concern is to stop the destruction of rape kits, which in Massachussetts (she was a student at Harvard) took place after six months. Nguyen was able to take a "Jane Roe" rape kit, but it would be destroyed if she didn't press charges in six months. 

She did not want to do that, since it would have opened her up to possibly years of rape investigation and trial. She did not want her career hopes (CIA and astronaut) interrupted for that. And, she feared both would deem her unsuitable in the process.

Nguyen does not provide a reason why the government wanted to destroy rape kits. There tends to be a reason for something, even if it is a bad one. Understandably, she focuses on her personal pain and stress from constantly worrying about obtaining another six-month extension. 

(For instance, for reasons of privacy, there was a policy of not sending emails. At one point, she spent $500 [in the mid-2010s] to travel to get a personal printout. OTOH, the hospital accidentally called her parents and revealed she was raped. Her abusive father, therefore, found out.)  

Still, an advocate needs to know the other side's arguments. One article, for instance, suggests it is a matter of space. The large number of rape victims, unfortunately, makes that somewhat conceivable.

Nguyen provides us with limited information about the rape, moving from before to right after. The book provides an emotional account of her going with a friend to get a rape kit and then for some reason she leaves. Nguyen is left alone with supportive staff, but they are strangers. Another friend's act of being there and cleaning the sheets is noted as very important.

She gets close to joining the CIA but decides to focus on passing what became the Survivors' Bill of Rights Act of 2016. The law was passed unanimously, which is a notable achievement. The book ends with the passage of the legislation so there is obviously much more that she accompolished since then.  

The book does not provide a full acount of her work, including as Deputy White House Liaison for U.S. Department of State. Nguyen also cautiously leave out some names, including of a senator and aide that treated her is an abusive way. 

(Is "Chad" even the aide's name? Seems like a stock villain name. Like, "really, Chad?")

The book ends with an Epilogue that she became an astronaut in 2023. The book was published in 2025. Her Wikipedia page notes her space flight ("Making Nguyen the first woman of Vietnamese heritage to fly into space") took place earlier this month. Yes, it was the one that also had Katy Perry. 

Whether or not she will access her rape kit and press charges is a decision for the future. The point is, she has kept the door open. “I’ve given myself time,” she says. “We’ve rewritten the law to give my future self that choice. I’m just so grateful I screamed and the world listened.”

The book is well written, with her fable taking up around a third. She never does bring a case against her rapist and readers might be upset about that loose thread. OTOH, that is the case with quite a few rapes. There is no grand moment of justice.

Nguyen also does not provide a full autobiography, which her Wikipedia page alone shows is more detailed than only suggested here. Simply put, it is not a complete "memoir," and a lot more can be said about her life. This is more of a limited view of some things.

One blurb is fitting: "Amanda Nguyen is a compassionate, clear-eyed guiding force" and "shows us how to reclaim the full spectrum of our lives, replete with pain, fury, creativity, and recovered dreams." A fitting narrative for the times. 

"Final" Trump Ukraine Peace Offer

I talk about "pregnant persons" as a term here.

==

The Trump Administration has provided a "final" peace plan for Ukraine. The foreign policy guy at LGM thinks it is "not terrible." Heather Cox Richardson has a somewhat more negative take. What do I know?

Still. A few things. First, Trump has already backtracked on multiple things, including tariffs. Let's say that "final" should be taken with a grain of salt. 

Second, I don't consider anything Trump sets forth good. Don't trust it. Imagine how Ukraine feels even without Trump/Vance trying to blackmail and belittle them (Trump back to the last time). 

Third, these "off the table" things referenced by the LGM guy don't impress me much:

It left out three Russian goals: denazification, demilitarization, and a prohibition on foreign influence.

He acknowledges "denazification" is a bullshit label. It is code for removing any number of reasonable people whom Russia deems as not supportive of its interests. 

Next, demilitarization is somewhat likely to happen after Ukraine is no longer on a full war footing. OTOH, it cannot totally demilitarize without threatening its well-being. Russia has repeatedly invaded since promising otherwise.

Finally, Ukraine cannot functionally survive without some "foreign influence," which again will be defined broadly by Russia. Its long-term survival -- as do ours on some level -- is having foreign allies and sponsors. 

The first reaction from Ukraine, and from what I can see, its European allies, is negative. I acknowledge my lack of overall knowledge on these subjects. Also, with Trump in power, we are stuck without a horrible major negotiating party that is at least quasi-pro-Russia. And, any peace treaty will be a compromise that will have some bad parts. 

I'm just here noting my first reactions. FWIW. 

Some Thoughts on Judas

I most certainly don’t care about Christianity or any religion at this stage of my life. However, if you are a true believer, I don’t get the Judas hate. Here’s a good example of how Judas serves to describe treasonous evil today. Judas is the necessary ingredient for Christianity to come together. Christ has to die for our sins. Someone has to betray Christ in order for that to happen. That someone is Judas.

            -- Erik Loomis 

If someone doesn't want to be religious, fine, especially with so many "nones" out there. The dislike of some can be a bit much, yes, especially since religion is important to many allies. 

On another level, religion is a significant part of our society, history (including the areas he is concerned with), and so forth. It's silly not to "care" about it at all. It is not only that; it's misguided.

Jesus could have "died for our sins" in various respects. The Gospel of Judas says that Jesus blessed Judas, turning him over to the authorities. The gospels says he was aware of what Judas would do (Jesus is after all the son of God) and didn't stop him.

Judas turned him over for unclear motives (the gospels cite greed, an evil spirit, and a prophecy), leading people to pose various possibilities. One comment to the post assumes Judas was a religious and/or political radical. That's possible. It's far from clear from the gospels. Paul doesn't name Judas.

Someone with Erik Loomis' overall mentality should not be too surprised an informer gets bad press. That sort of thing -- even if we can spin it as useful -- is not a favorite of many labor and political movements. 

A major reason Judas was despised is that he (see the very name) became symbolic of Jews. The gospel that says he was in charge of the money furthers that sentiment. He did it for the money and so on.

The "hate" also, according to multiple gospel accounts, was self-inflicted. We get more than one version of how Judas died. The understanding was that he soon felt he made a mistake. 

One comment suggested a part of the problem is that Judas took it upon himself to force the issue. Such an act of hubris is problematic. It is also very human, which makes him a good dramatic character.

To toss it out there, in my Substack discussion, I cite Mark Osler's book. He suggests Peter's denial might be spun positively. Perhaps, he was asked as a part of a witness search. His denial protected Jesus!

Again, that is not how the gospels and Peter thought about the matter. Anyway, I don't have "hate" for Judas. He is if anything a tragic figure, which might be a warning. But, Christianity is about forgiveness, right? One early Christian thinker even suggested it was even possible to redeem Satan.

If so, I think Judas has a shot. We can give him a bit more respect and take some from Pontius Pilate, who is framed a tad too innocently in the gospels. 

Happy Easter (and Halloween?)

I discussed Peanuts holiday specials, Mark Osler's book discussing Jesus as a criminal defendant, and added some thoughts about Easter overall on my Substack.  

SCOTUS Watch

Opinion

The one opinion handed down was not too exciting: 

Cunningham v. Cornell University will not go into the history books as one of the most important 30 decisions of the 2024-25 term. The case involves a technical problem about pleading standards under the Employee Retirement Income Security Act, and the court’s resolution of the problem was, in a word, technical. 

The justices needed to resolve this case because lower courts had offered differing solutions to the conundrum, and pleading standards for ERISA should be the same nationwide. I doubt it will have broad significance in the future, but it will offer a useful roadmap for trial courts having to deal with these cases on the ground. 

I suspect that is the reason the case was assigned to Sotomayor, a former trial judge.

Alito (with Gorsuch and Kavanaugh) concurred while being worried that the approach would lead to difficulties. Trivia alert: his opinion includes an URL though the relevant page has not been updated. 

Orders 

The housekeeping order set forth oral argument time for the new Solicitor General. 

Another order announced a mid-May oral argument to address a request to stop national injunctions to block Trump's blatantly unconstitutional birthright citizenship policy. Steve Vladeck noted on Bluesky that this will be just the fourth oral argument on emergency applications since 1971.

They assume it will be heavily attended since they have a special sitting announcement. 

Garcia Case

A strongly conservative appellate judge provided the passion that should have been shown on the Supreme Court level. Supporting the judge:

While we fully respect the Executive’s robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision.

The stakes:

The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. 

The duty of the Executive:

We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. 

Abrego Garcia is a symbol of a wider problem, including someone else (from my neck of the woods) who appears to have been wrongly seized. The government (at first) admitted they made a mistake in the Garcia case. Now they are backtracking and arguing he really is guilty. No backsies. 

Nonetheless, quite a few sketchy examples can be provided, including the gay hairdresser. Basic due process before disappearing people into a foreign hellhole is the very least we should offer.

(Citizens have begun to be caught in the vortex.) 

Maybe, we can demand more from the conservative majority of the Supreme Court. Meanwhile, Trump is making the Supreme Court look weak. 

Coming Up

After the holiday, we will have two more weeks of oral argument and an Order List on Monday. Tuesday has also been designated as another Opinion Day. 

ETA: We live in interesting times. Take that as you will. Chris Geidner reports that a little before 1 A.M. on Saturday (there was a 2 A.M. dissent a few years back in a death penalty case), another order dropped. 

Thomas and Alito dissents. Alito made the announcement a statement would follow. Jackson once wrote a dissent in a death penalty case the day after the execution. These are special situations. 

The "Government" (ultimately our representatives), for now, are not to remove any of a "putative" class of detainees that are challenging the application of the Alien Enemies Act. Which has no legitimate application in the current situation (my comment.)

They refer to this provision:

The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

This is again a signal, not as firm as I would like, about what is going on and what courts should do about it. The reference to an open-ended judicial power is notable in itself. The order only applies to a group challenging in Texas, but there is no reason other lower court judges should not follow. "All courts." 

This is an Administration, as Geidner notes, who already sent planes of detainees (including in the face of a judicial order to stop) who have no right to be deported using this method. Geidner provides details of this specific order, which suggests a major red flag.

An unsigned order requires a majority of the justices to participate. There is a six-person quorum. So, it's possible someone else dissented privately. In my view, that is pointless, especially when two openly dissent. 

... Alito's dissent eventually dropped sometime Saturday night. The gist is that the Court acted prematurely and dubiously on a procedural level. Alito is selective about such things. He ends with a comment about the executive and judiciary both having an obligation to follow the law.  

Not quite worth the wait.  

More On Andrew Cuomo (Blah)

The primary for NYC elections is now two months away. One goal is to get a Democratic city councilperson for my area. I don't have high hopes of people changing horses in midstream since the current occupant seems to be doing okay. I have no idea who is running, but I will see in time. 

The primary concern is mayor and making sure Andrew Cuomo doesn't win. Eric Adams isn't running as a Democrat anymore. Besides those two, I am not really concerned about who wins too much. There are multiple decent choices. Both Adams and Cuomo were in the news:

Both Mayor Adams and ex-Gov. Andrew Cuomo have filed for extensions on their 2024 tax returns, meaning the public likely won’t get to see either of their disclosures until this fall at the earliest.

How convenient. And suspicious:

As mayor, Adams has in previous years also filed for extensions on his returns and then released them publicly. Once public, one of those returns contradicted information about Adams’ income that he had supplied in his mandatory financial disclosure with the city Conflicts of Interest Board that year.

This year, there has been heightened interest in Cuomo’s return because he raked in $500,000 in 2024 doing legal consulting for yet-to-be identified clients, Politico reported last month.

Cuomo also flubbed in obtaining matching funds (for now), allegedly because of a "technical error." 

More news:

He’s received the endorsements of top unions, most recently 32BJ SEIU and Hotel and Gaming Trades Council, and several local politicians.

The Cuomo campaign was also criticized this week after releasing a housing plan that apparently utilized ChatGPT — and was still filled with bad grammar and misspellings, Hell Gate reported. 

The campaign also misspelled the names of the head of 32BJ and HTC after announcing the endorsements. 

The unions endorsing him, especially with how much he screwed up as governor, is depressing. There are multiple good other options than a disgraced governor. Plus, he is a sexist asshole:

Abuse and Power Andrew Cuomo’s governorship has been defined by cruelty that disguised chronic mismanagement. Why was that celebrated for so long?

Well, part of it is because we are still a sexist society. As to the rest, maybe he was gone too long for people to remember. We have too many reasonable alternatives, including the head of the City Council for this sort of bullshit. 

Adrienne Adams has the same last name as Eric Adams and is black, too. It's a smooth transition. I kid a bit there, but that's a coincidence. Plus, she has a major city position. 

There are some other good options, including both of the candidates whose first name begins with "Z" (one is the leader from the left, the other has more moderate support). So, we don't need to support corrupt hacks. Enough of them already. 

How Could You Do It, Diane?

Kilmar Armando Abrego Garcia fled El Salvador and started a new life here. 

The Trump Administration wrongly sent him back and doesn't want to do anything to escape his current residence in a prison hellhole. 

I talk about Garcia's life some here and could have said more. Someone is likely to write a book, hopefully eventually with a better ending.

And, not too many book titles have two forms of punctuation. 

I noted a few years back that I first read this book as a teenager. Checking, that's true. The version I read the second time around, while being probably older than her mother (not by TOO much), was not the same copy since it was published a few years later.

The book concerns a teenage girl getting over her sister's suicide. The author died at close to a hundred years old when I reread it here. She was quoted as favoring (as suggested by the titles) different fare:

When Stella Pevsner reflected on the 18 children’s books she had written over her long career, she realized her later books always seemed to feature a girl around 10 years old — sassy but charming in her own way.

I'm not sure why she chose to write more serious fare in this case. Either way, it was a well-written down to earth account. No classic, but it touchingly shows how the death affected various members of the family. 

She wants to know 'why," but (spoiler) does not find out. And, it's okay. The book is about being able to move on while still (of course) never truly doing so since the loss is never gone. 

I was older than the character even when I first read it. She now can -- well, I'm notably older. It's a sign that (as I have said before) teen fiction can be enjoyed by adults. She's mainly fourteen in the novel though through her eyes we also see her parents.  

I must have first found it in the library. I know a "Diane," so that might have caught my eye. She's alive and all. The cover portrays "Diane." 

I also read the beloved Japanese international bestseller The Travelling Cat Chronicles. 

The book is narrated by a cat and has multiple sad things. Another spoiler (since no one reads this blog and it's an old book): the reason the owner needs to give away his precious cat (he travels to a few places to try) is that he's dying. And, that isn't the only sad thing in the novel! Still, it's a good book.

The episodic nature makes it effectually a series of short stories. The characters are well drawn.  

Mario Vargas Llosa

The Nobel-winning novelist Mario Vargas Llosa has died. He had an interesting life. 

I vaguely know the name but do not know much at all about this Peruvian celebrity. For instance, he was big on free markets, sending flowers when Margaret Thatcher retired. He also ran for president:

He led polls for much of the race, but was roundly defeated by Alberto Fujimori, then a little-known agronomist of Japanese descent who later adopted many of Mr. Vargas Llosa’s policies.

Llosa sounds like he had an interesting life. My small knowledge of him is from watching Tune in Tomorrow, an American version of Aunt Julia and the Scriptwriter. The novel was inspired by his own marriage mixed with some fantasy. His "Julia" (they were married nine years) was not overly pleased with his take. 

Tune in Tomorrow (1990) starred Keanu Reeves, Barbara Hershey, and Peter Falk (as the screenwriter). It had various other notables in the supporting cast. I saw it a long time ago but recall finding it amusing. 

Plessy v. Ferguson

A Today in Supreme Court History blog series provided fodder for someone to list daily cases* and eventually use it to publish a book. Mid-2024, I joined in with my personal comments. Sometimes, I go on a bit of a lecture. Constitutional law has long interested me. 

Today's post involved Plessy v. Ferguson oral argument. (The posts just state the anniversary and connect it to some lecture.) That is the infamous case where the justices in 1896 held 7-1 that legal segregation in railroad cars is constitutional. 

(The oral argument came less than a month before the opinion. They had many more cases back then.) 

Justice Souter, in his Harvard speech, argued:

As I’ve said elsewhere, the members of the Court in Plessy remembered the day when human slavery was the law in much of the land. To that generation, the formal equality of an identical railroad car meant progress. But the generation in power in 1954 looked at enforced separation without the revolting background of slavery to make it look unexceptional by contrast. As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see.

Justice Harlan did see in his dissent. We now deem his dissent correct. If only we also deemed his Civil Rights Cases similarly so.**

OTOH, Harlan did have topical blindspots. He argued in his dissent:

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.

He also suggests why he joined the dissenting opinion in the famous birthright citizenship case:

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.

[He did not say that as policy, the Chinese were deemed so different. He stated it as a simple fact.]

Also, his understanding of equal "civil rights" did not include integration of public schools [he dissented when a law blocked a private college from integrating] or miscegation laws.

Harlan understood the general principles of the 13A, 14A, and republican form of governments required striking down the railroad regulation involved. He still had a ways to go.

On that, it took the development of society and the law, which is a significant aspect of enforcing the Constitution.

Harlan and the majority had some excuse for being products of their times. Given we as a nation are repeatedly unable to learn the lessons of history [some lame gotcha won't do it], we should remain modest.

Justice Souter can have the final word:

If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.

===

* This leaves me even more time to pontificate. 

Gibson v. Mississippi (1896) was a majority opinion written by Justice Harlan. A big "but" here:

We recognize the possession of all these rights by the defendant; but upon a careful consideration of all the points of which we can take cognizance, and which have been so forcibly presented by his counsel, who are of his race, and, giving him the full benefit of the salutary principles heretofore announced by this court in the cases cited in his behalf, we cannot find, from the record before us, that his rights, secured by the supreme law of the land, were violated by the trial court or disregarded by the highest court of Mississippi.

Bolling v. Sharpe (D.C. segregated schools, so no Equal Protection Clause) used this case as a precedent for an  equal protection component of the Due Process Clause:

As long ago as 1896, this Court declared the principle "that the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government, or by the states, against any citizen because of his race.

I love those sorts of footnotes. 

** The Supreme Court later upheld usage of the interstate commerce power (left open in the earlier case) to stop discrimination in public accommodations. 

To refute a comment, that is a telling label. It is not mere "private" discrimination. Harlan was correct. The opinion was cited in cases like U.S. v. Morrison, too, another case that could have gone the other way on various grounds. 

Congress in the 1870s enforced the 14th Amendment to regulate discrimination in public accommodations. Congress has more power to pass reasonable enforcement regulations regarding the Reconstruction Amendments. 

The Supreme Court, guided by the spirit of the 19th Century, continues to provide a too limited view of its power. They might have been correct in specific cases  (Ginsburg might very well have been right to go along in Boerne v. Flores), but overall too restrictive. 

Loving v. VA & Originalism

A "This Day in Supreme Court History" post raised another debate about how Loving v. Virginia shows that originalism doesn't make sense. How could an opinion holding miscegnation laws unconstitutional stand up to original understanding? "It obviously doesn't! Slam! Originalists are so stupid!!"

(I put aside that Mildred Loving, at the end of her life, argued the principle of her case applied to same sex marriage. That is another use of her case!)

Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification.

Originalism is a popular doctrine. It has rhetorical force. Liberals repeatedly argue a "true" understanding of history would lead to progressive results. Madison, for instance, is cited for purposes of separation of church and state. 

There are also a variety of types of originalism, which, like the sects of Christianity, share various tenets while leading people into different avenues are significant points. One version:

The best indicia of original public meaning comes from dictionaries and grammar books that are widely in use at the time a law is passed.  Newspaper editorials might also help recover the objective original public meaning of a newly enacted legal text. Senators and representatives involved in the drafting process, in contrast, will usually be unknown to the general public when an Act is passed and will therefore not be part of the original public meaning of the Act. 

This account argues that even the Federalist Papers might be "reassuring, mellifluous words," but "this does not mean the sponsors are being honest nor does the public necessarily assume that the sponsors are being honest."

The linked article argues that a certain form of originalism very well can be used to defend Loving v. Virginia. See also the article discussed here. 

The second article notes that many originalists disagree. The review at the link (from someone sympathetic to originalism) also argues that "far from clear that ordinary citizens" of the time would accept the argument.

Jack Balkin, a liberal constitutional professor who wrote about a liberal form of originalism, pushed back on the article:

But the fact that some anti-racist Republicans believed that the best construction of the Civil Rights Acts and the Fourteenth Amendment gave interracial couples a right to marry does not show that most, much less all, Republicans thought that this was the legal meaning of the Civil Rights Acts or the Fourteenth Amendment. It does not show that most of the Congressmen and Senators who voted for these Acts or the Fourteenth Amendment thought so. And it certainly does not show that most of the state legislators who were necessary to adopt the Fourteenth Amendment thought so. The claim that, in 1868, most of the people necessary for the passage and the adoption of the Fourteenth Amendment believed that the civil right to marry included the legal right to racial intermarriage is simply not supported by history.

(He also flags that the article supports Pace v. Alabama, a 1880 ruling that upholds a law that provides additional punishment for interraical fornication. Marriage is different! 

That is strange since the principle of the law -- see also, R.A.V. v. St. Paul -- should still be wrong.)  

A person in the blog post comments can allude to (addressed here) Reconstruction state court rulings that held that interracial marriage is protected by equal protection. The courts are all in reconstructed Southern states, so they would logically be Radical Republicans. Not proof of a median position. 

Meanwhile, an Indiana ruling went the other way, arguing that marriages were not the normal contracts involved in the Civil Rights Act of 1866 and so forth. Jack Balkin expands on that -- social rights were different. A view that changed over time. 

Once courts found that interracial marriage could be banned, the path was open to broadly uphold segregation laws. School segregation was necessary, allegedly, since once social race mixing started, it was just the path to perdition. Brown v. Board was an essential stepping stone to Loving. The Court did go carefully, not deciding the matter right away.

Common law constitutionalism, an approach that I think is the best one, accepts the development of the law over time. This applies to the development of the protection of interracial marriage. And, same sex marriage too, using broader principles of equality. The test, after all, is universal.

Loving possibly fitting within the broad contours of the Fourteenth Amendment does not mean that it seals the deal. Many things can meet that test. It is particularly silly to govern how we apply the Constitution today using "dictionaries and grammar books" from back in the day.  

A fair reading of common understanding probably would reasonably hold that the median position was originally that interracial marriage was not protected.  Things like removing a ban on interracial marriage in D.C. don't clinch the deal, especially when it is a war measure by a Congress stripped of most of its Southern members. And that was a law, not a constitutional decision. 

Loving itself reasonably noted:

As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources “cast some light” they are not sufficient to resolve the problem; “[a]t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among 'all persons born or naturalized in the United States.’ Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect.” 

A question left open by the evidence, or which can reasonably be applied, is of some interest. The Constitution should be reasonably applied, which involves a broad but not unlimited range of options. 

Joint decisions, including by multimember courts, will also result in compromises that seek to satisfy people with various ideological approaches. Finally, a full look at the history is informative. 

Those who strongly argue that it is silly to think originalism can support interracial marriage are somewhat overdoing it. The evidence is complicated. The road to support of interracial marriage bans and other bad stuff also does not merely turn one bad opinion (Slaughterhouse Cases). The development of the law over a hundred years was complex. 

And, then we are left with competing long articles on the details. The final answer remains elsewhere. 

Two Executions

Michael Tanzi kidnapped, raped, and robbed a woman in Florida in 2000. He confessed to another murder in Massachusetts, but his death sentence in Florida led that state not to prosecute. 

His final appeal involved a procedural issue that multiple people tried, but other than Sotomayor in the past, no one on the Court seems to think a problem. They again dismissed it without comment. 

I think twenty-five years is too long to wait to make an executed legitimate (Breyer dissent). And, yes, when an execution is involved, someone should provide at least a statement explaining their vote.

His lawyers also argue that he has mitigating childhood abuse and trauma. Also, his physical condition makes lethal injection dangerous. Not something the conservatives on the Supreme Court have ever found convincing in the last twenty years.  

Tanzi deserved a long prison term. Execution around twenty-five years after his crime? I don't think so.

Florida disagreed. 

==

Mikal Mahdi also murdered people in multiple states, leading one of them to save time and not prosecute. 

He murdered a police officer, too, and to add insult to injury, attacked  (along with another murderer) a prison employee during a failed escape attempt. Does not appear to be a factor in the death sentence, but it is still relevant with LWOP as an alternative.

(Note that the incident occurred a while back.) 

You can find the prosecutor defending sentencing him to death here. A traumatic childhood was offered as mitigating. The long time in solitary is troubling, though maybe somewhat less so when you read about the escape attempt/attack of a prison official.   

(The final appeal argued he had inefficient counsel because not enough was done to show mitigation. SCOTUS again rejected it without comment.) 

The lag time here was a bit less than twenty years, and the firing squad was used instead of lethal injection. Another person who deserves a long prison sentence. The escape attempt in prison, however, is a special wrinkle if THAT was the reason for the execution.

It wasn't, and the capital punishment system is overall problematic, even if single incidents are easier to defend. The best argument here would be that incapitation failed. 

South Carolina, anyways, executed him. 

Note: The case of someone who murdered in more than one state arises in various cases. It might be useful, if possible, for the federal government to step in here since interstate crimes have arisen. 

OTOH, if the crimes are simply state crimes, independent from each other, just in different states, the Constitution might not allow that. 

SCOTUS Watch

Extra: I enjoyed Charlie Brown's Christmas Miracle: The Inspiring, Untold Story of the Making of a Holiday Classic, which is chock-full of information. 

I rewatched the special a few weeks ago and enjoyed that too.

==

There were no oral arguments or scheduled opinion days, but it was still a pretty busy week. 

I addressed a pro forma rejection of final death penalty appeals separately. 

The week started with a ho-hum Order List, which gave me a chance on my substack to provide an Explainer. I wish SCOTUS provided an FAQ. 

After posting, I checked online, and what do you know. There was a per curiam opinion dropped. 

Alien Enemies Act 

The Supreme Court split 5-4 (also by sex), with strong dissents by Sotomayor and Jackson (alone). Barrett joined parts of Sotomayor's dissent. The case involves the Alien Enemies Act.  

There is good and bad news. The majority acknowledged that the government had to provide notice and a chance to be heard before seizing people and sending them off to foreign hellholes. 

So why the passionate dissents? Steve Vladeck and others explain that the limited habeas protections do not meet the moment. The opinion was a gratuitous limitation on addressing the threat. Since so many people will have to sue in the Fifth Circuit, there is also a greater likelihood of conservative results.  

Sotomayor also provided details of what is happening over the bare, unsigned majority opinion, which complained about the "rhetoric" of the dissents. Barrett did not join much of this aspect of the opinion. Kavanaugh dropped an "I'm so reasonable" concurrence, tossing in some mansplaining. 

Jackson strongly called out the majority for using the "shadow of the emergency docket" in a "fly-by-night approach" that is "dangerous." The stakes:

The President of the United States has invoked a centuries-old wartime statute to whisk people away to a notoriously brutal, foreign-run prison. For lovers of liberty, this should be quite concerning. 

Kilmar Abrego Garcia

Garcia fled El Salvador at age sixteen in 2011, illegally entering the country. While looking for work, he was arrested in 2019. A court protected him from being deported because of the risks. 

The Trump Administration illegally deported him and eventually admitted the error. They claimed, however, that they had no power to get him back. A federal judge told them to try. Roberts granted an administrative stay as time ticked by. 

A legalistic per curiam was handed down, providing a "he said/they said." Sotomayor, for the liberals, says more bluntly that there is no evidence he is guilty. They would not have intervened. 

Nonetheless, without dissent, it also noted that the district court's "order properly requires the Government to 'facilitate' Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador."

As the Supreme Court correctly recognized, it is the exclusive prerogative of the President to conduct foreign affairs. By directly noting the deference owed to the Executive Branch, this ruling once again illustrates that activist judges do not have the jurisdiction to seize control of the President’s authority to conduct foreign policy.

[Justice Department Statement]

As Steve Vladeck notes, the presumption of regularity is problematic. The Justice Department replied, which doesn't bode too well, though hopefully he will come back. What about other people wrongly sent?

And, we simply cannot trust this Administration. After all, for telling the truth to the judge that a mistake was made, the acting deputy director of the department’s immigration litigation division was suspended.

For instance, the district judge called a hearing on Friday. The Administration tried to delay. No. The hearing takes place, and the judge asks where he is and if something is being done to get him back. The official word was "info not available." 

Bullshit. At some f-ing point, these people have to be held legally in contempt. Judges being mad is not satisfying when people are rotting in foreign jails. 

More Trump Rulings 

Another per curiam paused a ruling that stopped firing some government workers. A parallel case is still active. The short opinion noted that the people did not have standing. Sotomayor dissented without comment. Jackson said there was no reason to intervene now. Kagan went along without comment. 

Chief Justice Roberts also supplied an "administrative stay" (a limited pause) blocking illegal firings of members of the Merit Systems Protection Board and National Labor Relations Board. Trump is trying to expand previous Roberts Court rulings.

The new solicitor general claims the lower courts are causing "chaos." This is gaslighting. Trump is doing so by going against long precedent to see how far he can go. And, he might win on this one. 

No wonder a long-term member of the Solicitor General's office (he mentored Alito and Kagan) is retiring. Many others are getting the hell out too. 

And More 

Mark Joseph Stern on Bluesky:

Kavanaugh [issued| an administrative stay freezing a 6th Circuit order directing Ohio to approve, for the ballot, an initiative that would end qualified immunity under state law. Officials blocked the initiative on highly questionable grounds that, per the 6th Circuit, violate free speech.

A new director of the Federal Judicial Center was announced. Does Thomas know about this?

"Center education programs include orientation and continuing education for judges on subjects including law and procedure, case management, and ethics."  

Coming Up

There was no scheduled Friday conference. So, no Monday Order List. They are keeping busy, though. 

They return next Thursday for a non-public argument session. That usually means swearing in lawyers, though maybe they will decide to drop opinions.