Trump Follies

I provide a Supreme Court wrap-up on my Substack. The Friday news is that the Supreme Court furthered Trump's empowerment (in a bad way) over hundreds of thousands of immigrants, with only Sotomayor and Jackson publicly dissenting.

Trump targeted Leonard Leo after one of his picks went against Trump. The lower court anti-Trump rulings include multiple "Trump judges." Trump has begun selecting some more judges. His tainting of the judiciary continues.

Emil Bove, whose follies include the Eric Adams mess, is up for a Third Circuit slot. Bove needs to be a leading target for Democrats. The fact that he was a former Trump defense lawyer is the least of his problems. 

And then there are the usual ideologues, who otherwise might be reasonable selections based on minimum standards of legitimacy. Democrats should also oppose many of them. 

Pardons are one of the most "royal" powers of the presidency. There are limited exceptions, including the implicit bar against self-pardons. Horrible pardons, such as for the 1/6 insurrectionists, seem "merely" horrible. Some novel arguments can be made as to why they are illegal. 

Blatant bribery should also be limited. Good luck with that. Trump v. U.S. technically left open bribery prosecutions but added bogus roadblocks as if the normal prosecutorial process was not already fatally slow. Parsing the language is a bit academic. 

[See also: "Of Trump’s 60 pardons or commutations unrelated to Jan. 6, about one in five of them have gone to those who have some sort of financial or political connection to him. Here is a list of those dozen recipients."]

Bove was part of the weaponization of the Trump Administration. In the administration’s first days, Bove told prosecutors to investigate and consider prosecuting state and local officials who oppose the Trump administration’s wanton approach to immigration policy. 

1/6 prosecutors lost their jobs. Judge Dale Ho (the good Ho) said delaying the prosecution of Mayor Eric Adams, who is now supporting ICE prosecutions, was egregious:

The deal had to pass muster before the federal district judge trying the case, Dale Ho. It failed to do so. Judge Ho ordered the case permanently dismissed, but said that Bove had done something unique: he was unable to find another example of a prosecution being withheld to “facilitate federal policy goals,” and, Ho added, it appeared to violate “the basic promise of equal justice under law.” [TPM link]

Civil servants are support to be independent, serving the public. Trump wants loyalty oaths. Protected officials via bogus "unitary executive" theories are fired to be replaced by flunkies, including those with anti-semitic ties. The guy being chosen for the Office of Special Counsel is a chef kiss.

The firehouse of bad includes targeting those whom Biden commuted from death row. Several are being sent to harsh supermax prisons. Their ability to challenge the transfer is far from clear. When will the three still on death row be executed with extra fanfare? Probably, they would find a way to mess that up like the previous Trump executions. 

I noted Trump's official Memorial Day message promoted a prayer for peace following congressional legislation. His personal message was less serene. It spoke of "scum," "USA hating judges," and "monsters who want our country to go to hell" (judges he doesn't like; he used all caps). 

Look into a mirror, dude. 

The Court v. The Voters

I noted my opinion that the Constitution protects a right to vote. A book assumes it does too in various ways while listing various cases where the Supreme Court threatened voting rights. 

Justice Douglas in Baker v. Carr argues that "the right to vote is inherent in the republican form of government." A follow-up case, Reynolds v. Sims, held that “since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” 

The right to vote is a "fundamental right," which is particularly notable when equal protection is involved. Voting also involves the freedom of association, including protection of candidates whom they might vote for. One case declared that an "election campaign is an effective platform for the expression of views on the issues of the day, and a candidate serves as a rallying point for like-minded citizens."

Voting rights, after the 1960s, began to be given less protection, including in Richardson v. Ramirez (felons). One problematic case allowed Hawaii not to allow write-in voting. Bush v. Gore (with the dubious argument that it was partially 7-2, though all four dissented in full) and later cases are cited.

In the final chapter, some possible solutions are offered. Three general strategies:

1. Voters compromise/avoid SCOTUS
2.  Reasonable Court Reform
3.  Mobilize/form a pro-democracy movement

A compromise approach can aim for bipartisan, voting-friendly legislation:

1. Every eligible person can vote with minimal burden
2. Acknowledge concerns for potential fraud [e.g., use of paper ballots]
3. Voters should be as educated as possible
4. Elections should be based on ideas, not rules; losers should accept defeat 

Perhaps, per Rick Hasen, the ultimate goal can be a constitutional amendment broadly protecting a right to vote. We can also seek out national legislation, though the author supports a state-by-state method.

The book is overall a pretty good read, though it has some annoying mistakes, such as having Burger as an Eisenhower nominee (not as a lower court judge). It is not comprehensive (chapters are around 15 pages long), so some details in the cases are left out.

Still, it is a good way to learn about the cases and general principles. And there are some good developments, including pro-voting legislation in Kentucky, judicial elections helping in Wisconsin, and even places like Texas (pushed by litigation) easing its voting ID laws (a waiver can be signed to avoid photo IDs). Still a long way to go.

ETA: One person on a blog comment -- from someone often less troll-y than others, but has a hobbyhorse about the horrible nature of the law partially struck down in Citizens United, took a slanted approach to my summary's bullet points.

Don't do this unless you are sure the person you are engaging with is arguing in bad faith or is ignorant. And, even then, replying with a chip on your shoulder ("do you know" ... yes, I said that read a whole book on voting rights by a progressive; I'm aware of literacy tests and so forth, putting aside my other knowledge on such subject matters) is not often likely to do much. It will breed resentment and flame wars. 

For instance, I said, "should be as educated as possible." It's perfectly fine to ask me to clarify. But, assuming there is no way ("can't think of something") to do that in a positive way (voter education) is silly. 

I provided multiple examples of truly bipartisan campaigns. Again, since the person doesn't like a single law (better yet, part of it), they latch onto the one single example, badmouthing the sponsors. In this fashion, the author is not really bipartisan. 

Since it's a "law," it passed Congress. Two people you dismissive as dilettantes or whatever, aren't the only ones who supported it. 

The Supreme Court upheld most of the challenged portions the first time around, with Republican appointed justices going along in various respects. A Reagan appointee who was a Republican leader in the Arizona state legislature counts. 

And, yes, the person provided a slanted understanding of the provision struck down, including alleging it targeted minority speech. This is untrue overall, but particularly absurd when applied to anti-Hillary Clinton videos. Ah yes. Only a small segment strongly criticised her, someone who didn't even win the nomination when the film was created.  

I didn't provide that snarky part, but it is sometimes difficult to avoid doing so when a reply is so off base and (wrongly) infers you are not speaking in good faith. I followed up my two comments with long-ish replies. I put in the work. In response, I get bullshit.

Yes, it's hard for me to respect someone who does that, even if they are generally less troll-y than some of the people on the blog. I very well might respond -- insert "someone is wrong on the Internet" comic strip -- and try to be fair about it. 

And, if I insert just a bit of snark, many will latch on to it, not being able to take what they dish out.   

An Official Memorial Day Prayer for Peace

First off, a good NYT article about how Vietnamese are being pressured to support a Trump golf course. Not an Emoluments Clause problem though! Plus, that's a funny word, like "penumbra." Must be TDS!

Legislatures traditionally had days of prayer, fasting, humiliation, and thanksgiving. They were generally expressed in religious terms, appealing in some fashion to God. 

From the beginning of this country, as seen by Thomas Jefferson's dissent and concern about the sectarian nature of President Adams's day of prayer with political implications, there were dissents. Some people did not like the mixture of church and state.

I saw a reference to Trump's Memorial Day Proclamation, which contained this statement:

In honor of all of our fallen heroes, the Congress, by a joint resolution approved May 11, 1950, as amended (36 U.S.C. 116), has requested the President issue a proclamation calling on the people of the United States to observe each Memorial Day as a day of prayer for permanent peace and designating a period on that day when the people might unite in prayer.  The Congress, by Public Law 106-579, has also designated 3:00 p.m. local time on that day as a time for all Americans to observe, in their own way, the National Moment of Remembrance

And, yes, the link takes you to the amended congressional "request" (Jefferson was not convinced by such gentle language) in 1998. Not that long ago. 

I do not think Congress should "request" the president to pray, even if it is done in their own way. "Religious faith" reasonably does not apply to everyone. And, people do not just "pray." They exercise their faith in a variety of ways.  

I am pleased with the request to pray for permanent peace. That reaffirms my belief that the best way to honor the dead from wars is to promote a means to stop them from dying. 

(The official title of Trump's proclamation is "PRAYER FOR PEACE, MEMORIAL DAY, 2025.")

Nonetheless, Congress shall make no law respecting the establishment of religion. Arranging prayer rituals is one such type of law. If the president or anyone else wants to "call" people to pray, it is their right. 

We can apply the terms broadly. The word "pray," again, has many meanings. For instance, it is sometimes used in legal documents. We should try to narrow problematic things. 

Trump's choice to ask people to pray to "Almighty God" as part of his official act is troublesome. It is a type of Christian nationalism, if read with his other acts and words. I put aside his hypocrisy about Gold Star Families, given his past words and actions. 

Other presidents (or whatever Trump is) can be trusted to be at least somewhat less hypocritical and blasphemous. Overall, however, Congress should not "request" or whatever the president to tell us how to pray. We can handle that on our own.

The promotion of peace can be done without that garnish. Request them to spread that message, and they can choose the path they wish to take.

Memorial Day

Memorial Day originated as "Decoration Day," which involved decorating the graves of Civil War dead. This helps explain the timing. Flowers would be in bloom. 

John Alexander Logan, who fought in the Civil War, is the father of the holiday. His story is particularly notable when we remember his journey from racist (his father was once a slaveowner) to supporter of black suffrage.  

The 30th day of May, 1868, is designated for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village, and hamlet church-yard in the land. In this observance no form of ceremony is prescribed, but posts and comrades will in their own way arrange such fitting services and testimonials of respect as circumstances may permit.

President Lincoln, in his Gettysburg Address, uses the ancient method of mixing honoring the dead and teaching the living. It is for us to ensure that they did not die in vain. 

My sentiment has long been that the best way to honor those who died for our country is to promote peace. Let us work toward reducing the number of future dead people. 

Lincoln reminded us that we also should honor what they fought for. That is, when they fought for good things. We can remember German soldiers during WWII without honoring what they fought for. The same applies to Confederates. A total erasure of lines here is not quite ideal.  

The people who died were individuals with families and descendants. They are not just symbols to be honored or exploited. We should also remember them personally.  

I will also connect this a bit to Trump. His abuse of antiracism ("DEI") for his own ends cheapens those who fought and died to promote liberty and equality.  

Trump is overall a dishonor to their memory. Put aside his views that people who died for this country were suckers. He is now the commander-in-chief of the military. WTAF?

We celebrate holidays to honor things in today's world. So, even if we want to, we can not totally ignore Trump.

Overall, Memorial Day is not just the symbolic start of summer or a time for sales or days off. It honors the memory of people who gave their "last full measure" in defense of this country and its values. It is up to us the living to determine they did not die in vain.  

Religious Liberty Claim for Marijuana Use (Iowa)

A member of the Ethiopian Zion Coptic Church was able to continue his state religious liberty lawsuit to use marijuana according to his religious beliefs. 

Carl Olsen has been fighting this cause since the 1980s. Oregon v. Smith references multiple of his cases. The dissent argued that peyote use was different. Not only does it have a special relationship to Native Americans, but its use is limited, while marijuana is open-ended and hard to control.

Such reasoning is covered in various lower court cases that have dealt with the issue over the years. One was written by then Judge Ruth Bader Ginsburg. The dissent was not convinced. It argued that the government was selectively making an exemption for peyote users.  

Somewhat ironically, the state in Oregon v. Smith (oral argument) agreed. The attorney general argued that the line drawing between marijuana and peyote was artificial. I am somewhat sympathetic, but realistically, there is a difference. The question is whether the difference is serious enough.

A lower court provided an exaggerated expression of the "threat" involved here:

Congress has demonstrated beyond doubt that it believes marihuana is an evil in American society and a serious threat to its people. It would be difficult to imagine the harm which would result if the criminal statutes against marihuana were nullified as to those who claim the right to possess and traffic in this drug for religious purposes. For all practical purposes the anti-marihuana laws would be meaningless, and enforcement impossible. The danger is too great, especially to the youth of the nation, at a time when psychedelic experience, "turn on," is the "in" thing to so many, for this court to yield to the argument that the use of marihuana for so-called religious purposes should be permitted under the Free Exercise Clause. We will not, therefore, subscribe to the dangerous doctrine that the free exercise of religion accords an unlimited freedom to violate the laws of the land relative to marihuana.

A consistent application of free exercise may make criminalization of marijuana difficult. Marijuana is used for a variety of reasons, including medicinal use. A major use is to alter consciousness in a way easily framed as religious. It does make for a reasonable argument that marijuana should not be illegal. Putting aside other reasons, too.

(Justice Tom Clark, then retired from the Supreme Court, wrote a short article in the 1970s supporting marijuana legalization, partially because he argued personal possession was reasonably defended under the right to privacy.)

"Petitioner Olsen is a member and priest of the Ethiopian Zion Coptic Church. While the church is alleged to have several thousand members in Jamaica, it has never had more than between 100 and 200 members in the United States."

If he wins a free exercise claim, that membership might grow. Regardless, even lower courts acknowledged his sincerity. He lost on compelling governmental interests.  

The compelling governmental interest in banning marijuana is far from clear. The idea is that it is an "evil," more so. 

I am wary of an open-ended application of free exercise to strike down generally applicable laws. It has resulted in bad policy, and in practice has been arbitrarily applied. We see this is respect to abortion, which is a matter of conscience. 

OTOH, the use of mind-altering drugs as a religious experience has been present since ancient times. Certain drugs are now allowed for that purpose. Why not marijuana? 

Religious claims are strongest when they involve beliefs. They are also strong when they involve ceremonies and ceremonial use. This does not mean carte blanche. Still, it is more convincing than interference with third parties in public accommodations or vaccines that harm others.  

The "evil" of personal use of marijuana is far from clear. The rejoinder might be that this will lead to other types of drug use. Yes, we currently allow peyote and hoasca. 

The concern is that next people will say the likes of heroin should be protected. We can talk libertarian here. I am willing to argue that drug laws writ large are problematic.

But, as with the usual "slippery slopes,' we can also draw some reasonable lines. Free speech has a bunch of exceptions. The "evils" of heroin and marijuana are not the same. 

We will see how Olsen's continuing saga develops.

SCOTUS Watch

Maine Legislator

A Maine legislator was censured for doxxing a trans teen and required to apologize for the means she used. (Read the censure.) She refused.

The legislature then blocked her from voting while leaving open (read the legislature's reply for details) various other legislative activities, including committee work and proposing (and testifying on) legislation.

She brought a federal claim, but legislative immunity led to her being blocked in the lower courts. Justice Jackson decided it was not appropriate to step in. Appropriately. 

The Court itself (Sotomayor dissenting without opinion) did grant her an injunction. Various people found this an obvious thing. I continue to dissent. 

Was it a grave threat to voting rights for the U.S. Congress to strip Rep. Taylor Greene of her committee seats? How far should the courts get involved in legislative decision-making here? Legislators must follow the rules of the body. A "republican form of government" (appealed to by the other side) includes a legislature controlling its members.  

I think at some point, the penalty is counterproductive. She comes off as a martyr. But it shouldn't be a federal issue. I'm not too upset at the result. Still, I can see problems with second-guessing. 

Jackson's dissent overall is sensible.  

Opinions 

The one written opinion was a unanimous one by Barrett. 

A defendant who induces a victim to enter into a transaction under materially false pretenses may be convicted of federal fraud even if the defendant did not seek to cause the victim economic loss.

The case involved contracts being awarded with the proviso that "a disadvantaged business enterprise" be used. The awardees lied about how they were used. 

Justices Thomas, Gorsuch, and Sotomayor (making a Mets/Yankees tickets analogy) separately debated particulars. 

The big news was a non-decision. Barrett recused herself (without saying why*) in a major charter school case. The result was an evenly divided Court. 

The lower court opinion (Oklahoma Supreme Court) was upheld (protecting the separation of church and state) without it being a precedent for the future. 

Roberts likely joined the liberals. Kavanaugh, during oral argument, clearly voiced support for the charter school. Alito and Thomas are obvious. Gorsuch on religious issues also generally goes along with them. 

The conservatives will now seek a case where Barrett can take part and hope she goes along (good shot).

Trump Enabling Watch

The justices, in a thinly argued order, allowed Trump to remove people from independent agencies for now, with a "don't worry about the Fed" bit tossed in. 

As the order begins noting, Congress passed a law saying people can only be removed for cause. Trump does not have the authority to override that.

Neither history nor text shows that "executive power" (the power to carry out things) provides a constitutional override. 

Kagan, this being her bailiwick, had a strong dissent against this shadow docket extension of bullshit executive power precedent of the Roberts Court, attacking an over 90 years old rule.  

Meanwhile ...

Roberts granted an administrative stay (temporary) in favor of DOGE, holding up a lower court ruling granting a challenger the right to obtain some discovery to determine if it is legitimately performing its duties. We will see how long this lasts. 

Other

The Supreme Court denied without comment a request for a stay in a criminal case. A quick perusal suggests that the matter is not particularly compelling. 

Upcoming

Order List on Tuesday (Monday is a holiday), and another non-argument session and conference next Thursday. It might also be an opinion day. 

==

* Amy Howe summarizes:

Barrett did not state why she did not participate in the case. But the charter school was represented at the Supreme Court by the religious liberty clinic at Notre Dame’s law school, where Barrett taught for 15 years before becoming a federal judge and later a justice. And Nicole Stelle Garnett, who is a law professor at Notre Dame and a leading advocate for allowing the use of public funds at religious schools, is a close friend of Barrett’s. Barrett is godmother to one of Garnett’s children.

Justice Jackson recused from a Harvard affirmative action case because of a past relationship to the school without the additional personal connection.  

Three Executions

Matthew Johnson (Texas/May 20th)

As far as it goes, this is the least troublesome execution in some ways. His guilt is clear. 

It was horrible: an elderly store clerk dies from a lingering death arising from a petty robbery. The trial was in 2013, which is relatively speaking, not long ago. At least in the United States these days. 

There is some debate, as flagged since the 1980s, over the "future dangerousness" standard. Also, he has not been violent since being placed on death row. Johnson also has found religion on death row. 

So, you have a horrible crime, but even there, the necessity of execution after over a decade is unclear. 

Benjamin Ritchie (Indiana/May 20th) 

Benjamin Ritchie was sentenced to die for the murder of a police officer in 2002. So, aggravated circumstances. 

Once over twenty years have passed, significant problems are firmly present (Breyer's dissent).  

Other mitigated circumstances are either mixed (some testimony for good conduct in prison, other evidence not so much) or not found compelling (Fetal Alcohol Syndrome Disorder (FASD), as well as his history of childhood abuse and neglect). 

Overall, if you think there should be a heightened level of assurance before executing someone, there is some room to doubt. Acknowledging different levels of difficulty in each case, my stance is that the state should at least meet a beyond a reasonable doubt standard. This does not seem to have occurred here, even if "clear and convincing" is met.  

The final appeals concerned allegations that the fetal alcohol evidence was not adequately provided. The usual rejoinder is that nothing new is under the sun. The arguments were made and failed. 

The Supreme Court, without comment, rejected the appeals. Notably, there rarely are dissents these days, Sotomayor and Jackson noted their dissent. Without comment. Sotomayor in the past was more chatty. 

It's a taking of life by the government. Due process warrants some comment. The briefing here argued the court below split on the question, suggesting the matter is open to some doubt. Two justices did doubt it. So why can't they explain why, for the record? 

He was executed shortly after midnight. 

Oscar Smith (Tennessee/May 22nd) 

Tennessee, after years of problems and study, chose Oscar Smith to restart executions after five years. He has been on death row for thirty-five years.  

Prof. Lain, in her book, flagged how multiple people chose electrocution over lethal injection in recent years. Smith "chose" lethal injection by default (not deciding).   

Oscar Smith (though he claims innocence) murdered his estranged wife (history of domestic violence) and her two teenage sons. Some delays have been based on challenges of the lethal injection procedure and the state's own problems.

Meanwhile, showing how these things split, some of the victims' families of those on death row have asked the governor to hold up pending executions. 

In their letter, the group of 51 ​“victims, sur­vivors, and family mem­bers of those impacted by violent crime” argue the death penal­ty does not act as a heal­ing tool for vic­tims and takes away from state-fund­ed resources that could help with their heal­ing. For these indi­vid­u­als, ​“access to trau­ma recov­ery ser­vices, finan­cial and funer­al assis­tance, coun­sel­ing, safe hous­ing, and vio­lence pre­ven­tion pro­grams” are tru­ly help­ful, yet ​“these essen­tial resources remain out of reach for many.”

Execution of a seventy-five-year-old man four decades after his crimes comes off as glorified state-authorized euthanasia. Aside from other issues.

==

These crimes are horrible. I do not think the people who thought they were death penalty worthy are merely bloodthirsty. If we should have empathy for murderers, let's have some for everyone else. 

Still, there are issues in each case. The arbitrary "lottery" selection of who to execute continues. 

Personhood: The New Civil War over Reproduction

Mary Ziegler's new book concerns the "next step" in the fight against abortion that, for many on the anti-abortion side, was always a fight. The book was somewhat disappointing since it was often more of an overall summary of the anti-abortion movement. This was helpful, but somewhat redundant. 

Ziegler is an objective historian, leading an advocate on the other side to respectfully review her book. This is not wrong. The book is a work of history. It is not meant to be a critique. She also sometimes flags possible problems.  

For instance, there are many people in the book who appeal to feminism and the interests of women. Nonetheless, anti-abortion states and national legislators regularly do not support the pro-women and pro-child policies they support. Why isn't there more anger at hypocrisy referenced here?

The link also notes the problem with the conceit that you can think abortion is murder, and the unborn (down to fertilized eggs; surely embryos) are, in all relevant purposes, equal to newborns and not prosecute women. The idea is that they are all deluded and victimized. Doesn't hold up.

The book does intermix personhood discussions with a general history of the anti-abortion movement. For instance, it discusses the beginning of the anti-abortion movement in the mid-19th Century and notes personhood wasn't a primary concern. The originalist arguments don't hold up. 

(It is noted that originalist arguments are made without much clarity on how they thread the needle. A section on a typical originalist argument would have been useful. She referenced law articles making such claims.)  

Some key personhood issues are not covered in enough detail (IMHO). For instance, Johnson Controls is one case flagged as showing the possible dangers of fetal protection policies. There is also another case involving prosecuting those who took drugs during pregnancy. This issue was touched upon without referencing the Supreme Court case.  

(Rachel Roth in Making Women Pay: The Hidden Costs of Fetal Rights covered this ground in detail.) 

I talked about personhood amendments on this blog years back. The book covers them, but not in much detail.  The Webster abortion opinion in 1989 respects a law that includes a statement that life begins at conception. Again, this seems like a book that would discuss that sort of thing. 

The book is helpful and has some interesting aspects. Nonetheless, I hold to my argument that I'm not sure how much it adds. Ziegler's past works cover much of this ground. I thought there would be more focus on personhood specifically. It would be the main focus.

Anyway, it's quick reading (225 pages plus notes), and should be approachable to the general reader. Some abortion rights supporters will probably think some of the other side (including many women) are too positively portrayed. 

One time, someone was cited as having a balanced view on Kavanaugh, and we don't get any sense of what that meant. I repeatedly felt an urge to be able to push back on the claims. "You say this, but it simply doesn't hold up!"  

Okay. I tend to be disappointed with her long-form works. Her articles (normal size and law review) are more helpful. Again, there is some helpful stuff here. It just doesn't seem to work given the title. 

SCOTUS Watch: Order List

BAKER, RALPH W. V. COATES, TA-NEHISI, ET AL. Because the Court lacks a quorum, 28 U. S. C. §1, and since the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U. S. C. §2109, which provides that under these circumstances "the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court." Justice Alito, Justice Sotomayor, Justice Gorsuch, Justice Barrett, and Justice Jackson took no part in the consideration or decision of this petition.

The Order List generally was a nothingburger. 

As usual, however, something is interesting, especially for those interested in inside baseball. By federal law, six justices need to take part in a case for there to be a quorum (able to do business). 

If not, the lower court's opinion by rule is upheld without having precedential effect in later cases. This basically happens in cases like this where too many justices are recused. This tends to be by some frivolous personal suit against the justices. 

That does not seem to be the case here. The case involves a frivolous copyright suit. I think -- since the justices don't deign to explain -- the problem is that four of the justices might be involved with one or more of the people Ralph Baker is suing. They are all writers of books.

Alito is not, but he often is recused because one of his many investments results in a conflict. He separately recused himself in another case. As usual, being a conservative justice, he does not say why.

[Fix the Court agrees with me.]

The liberals did not follow their usual habit of explaining themselves. This is unfortunate. I assume they did not, since the conservatives did not. Perhaps, if the liberals did, they would have "outed" the conservatives.

Still, that is just supposition. If a standard rule applied to all justices to explain why they recused, which the liberals generally manage to do, it would have helped. 

Other Orders

Moving past this inside baseball bit, two more orders were dropped since this morning. 

Sotomayor dropped an administrative (temporary) stay in a case. Looks like a deportation case. 

A stay, with a special notice that does not cover certain other listed challenges, is placed in a case involving the DHS. Justice Jackson, who has taken a stricter view about stays, dissented without opinion. 

This case involves the Temporary Protected Status for many Venezuelans (to cite Chris Geidner). 

[SCOTUSblog article has a link to the SCOTUS case page, which has multiple briefs refuting Noem's take.]

Aaron Reichlin-Melnick, an immigration expert, put the flashing red on much brighter: "Supreme Court has just allowed Trump to strip as many as 350,000 people of legal status, effectively IMMEDIATELY."  He is not impressed with the challenges left open.  

I don't know. Either way, one of those unexplained orders on the shadow docket is having some significant effect. Suffice it to say, don't trust Noem to handle this appropriately. 

They also flagged that Thursday will be an Opinion Day. This is likely to be typical for the rest of the term -- conference and opinions on Thursday, except for June 19 (holiday), where it shifts to Wednesday. 

Also, to look out for: three executions are scheduled this week. One or more orders might involve them. 

Pope's Address to the Diplomatic Corps

The pope is a religious and secular leader suggested by remarks to the "diplomatic corps." A few thoughts in reply.

He argues that "papal diplomacy" is an interaction with the human family. Pope Leo XIV discusses its mission.

Resisting all forms of indifference, it appeals to consciences, as witnessed by the constant efforts of my venerable predecessor, ever attentive to the cry of the poor, the needy and the marginalized, as well as to contemporary challenges, ranging from the protection of creation to artificial intelligence.

The "catholic" church is universal, reaching out to the whole human family. Many religions are not as evangelistic. They at most reach out to certain groups. Their goals are often internal. Of course, how universal the Catholic Church truly is can be debated. Protestantism broke its monopoly. 

The pope "trusts" that God's providence will help guide him to promote "truth, justice and peace." The official transcript does not have a final comma. 

Conflict is a "perennial part of human nature." He argued that peace isn’t just the absence of conflict but a “gift” that requires work, from an end to the production of weapons to choosing words carefully. “For words too, not only weapons, can wound and even kill.” He promoted dialogue. 

This naturally requires full respect for religious freedom in every country, since religious experience is an essential dimension of the human person. Without it, it is difficult, if not impossible, to bring about the purification of the heart necessary for building peaceful relationships.

So far, his remarks have a progressive character. The respect for "religious freedom" does not change this. Religious liberty is a fundamental part of a liberal worldview.  

How about the belief that "religious experience" is essential? This will receive some pushback, as did his concern for "practical atheism." A broad understanding of "ultimate truths" is probably not enough in his view. He surely believes that this entails belief in the supernatural.

He then talks about "acting justly," including references to working conditions (shades of his nominal predecessor), wealth inequalities, and peaceful harmony. All fine. 

This can be achieved above all by investing in the family, founded upon the stable union between a man and a woman, “a small but genuine society, and prior to all civil society." 

Ah yes. Pope Francis respected LGBTQ people in certain respects. Nonetheless, as long as the core doctrine counts them out, how will "the dignity of every person" truly be honored? 

There is said to be a complete line from the unborn to the elderly. A narrow view of "family" harms the cause. Church critics argue they also have an integrated respect for dignity, but apply it differently.  

The term "dignity" is sometimes understood narrowly. Someone criticized my usage once because he thought it was a throwback to nobility. 

The "dignity" honored today, including in constitutional law, is more open-ended. It is the protection of equality and respect for all.  

The Catholic Church thinks abortion and euthanasia violate the dignity of life. Others speak of "death with dignity" (Brennan's dissent) and the "equal dignity" protected by abortion rights. 

Family also has a broad meaning. And, "man" and "woman" without respecting the full breadth of sex and gender is an outdated and limited view. 

He highlights his story as the descendant of immigrants. Pope Leo XIV is likely to repeatedly speak for their interests. Not James David Vance's view on that subject or on the last principle given his loyalty to Donald Trump.

I don't want to make this too political. We cannot just skip over such things, including because Leo is American. Also, diplomatic remarks will significantly involve the United States and its current leadership.  

Truly peaceful relationships cannot be built, also within the international community, apart from truth. Where words take on ambiguous and ambivalent connotations, and the virtual world, with its altered perception of reality, takes over unchecked, it is difficult to build authentic relationships, since the objective and real premises of communication are lacking.

The reference to the "virtual world" (ironically, where I first read his words) is interesting. A 21st Century concern. Language is going to be subjective on some level. It is hard in normal conversation to not use words that will have some ambiguous meanings. And, ultimately, some compromises will have to be made about the complete truth.  

He warns that sometimes the Church will use "blunt" language that might at first cause problems. Charity and "the person of Christ" among the community of believers will temper this. Community cooperation, not going it alone, is required. Leo highlights some specific challenges.

Truth, then, does not create division, but rather enables us to confront all the more resolutely the challenges of our time, such as migration, the ethical use of artificial intelligence and the protection of our beloved planet Earth. 

Again, the concern about "artificial intelligence" is interesting. I suppose not too surprising since the Catholic Church appeals to the natural order and human dignity. The dangers of artificial intelligence flow from that.  

Leo notes this is a "Jubilee Year." I put aside the mistake about the dating (Jesus was not born in Year 1) at that link. 

The concept of "Jubilee" has its origins in the Book of Leviticus (chapter 25) as a special year of reconciliation, pilgrimage, and coming home.

He highlights Ukraine and the Holy Land. He appeals to "building bridges" and ends with a blessing.  

"How Did So Many Elected Democrats Miss Biden’s Infirmity?"

The title is from a Michelle Goldberg op-ed headline.

Who missed his "infirmity"? The true question is whether he was so infirm that he was unable to govern. That STILL has not been made apparent to me. As she quotes from a new book about 'Biden's deterioration":

More significantly, from up close, the White House mostly didn’t seem that dysfunctional. Tapper and Thompson, it’s important to note, don’t report that Biden’s addled state led to poor judgment, at least aside from the catastrophic choice to run for re-election. Indeed, they wrote, Biden critics they spoke to “continued to the end to attest to his ability to make sound decisions, if on his own schedule.”

Okay? Like after the debate, we will now have many articles providing details of "his decline," which overall will tell us what we generally knew. He was old, somewhat fragile, and (more than some other politicians) seemed that way.

So, one article reports audio of his interview with special counsel Robert Hur included him "speaking slowly, often with long pauses, as he seeks to mentally assemble a sequence of events." Biden traditionally had a reputation for rambling, and his stutter resulted in other verbal quirks. 

The bottom line, however, is that his administration appeared to be running smoothly. It was particularly risky to "switch horses in midstream," and Biden already beat Trump. We did not "have our druthers." 

If the stakes were lower, maybe you would take the risk of running someone else, taking the big step of someone not running for reelection. Yes, someone younger, and we can point to the need to move on in Congress, too.  

It made sense for him to run again. Likewise, when did Nancy Pelosi step down? Not in 2021 but after the Democrats passed their program, and lost the 2022 elections.  

A case can be made that Biden should have said early on that he would not run again. This would have provided more time for a new candidate to emerge. 

Or, it would have given Kamala Harris more time to run. It also would not have led to concerns that the process was illegitimate or slipshod or that the Democrats were in disarray. All of that is reasonable to talk about. 

Nonetheless, it is quite understandable that people wanted to retain the status quo. A status quo where Biden "continued to make sound decisions" and the presidency was going on rather smoothly. 

The "infirmity" that is being "missed" there is unclear. His fragility was not a secret. OTOH, people generally argued he was doing the job. The op-ed suggests the book does not say otherwise. 

I do not plan to read the book (sorry) to determine how much Biden was "addled." The alternative in November was Donald Trump. The choice was obvious to sane people.

The ultimate problem, from what I can see, was that Democrats (including myself) were taking a risk. Biden had a lousy debate, and we saw how things went. 

We don't know what would have happened otherwise. For instance, Kamala Harris had a great debate. Trump looked horrible. Did it matter? If the papers wanted to do so, they could have lots of articles and op-eds about how the debate showed Trump was unfit. 

They did not. 

The op-ed makes a general comment about "gerontocracy" in Washington. After all, the Senate pro tempore is Chuck Grassley, who is over 90. That line is less easy to make in the House, even if some older Democrats won out in committee spots. The leadership slots moved on from Pelosi et. al. 

I don't think that was the reason people did not want to risk moving on from Joe Biden. He was a safe choice in 2020. Goldberg argues he had a good shot at beating Trump in 2016. Joe Biden himself has certain qualities people like.

We also have this talk about policy:

Had Biden been younger, Tapper and Thompson suggest, he might have been more forceful on the border. I suspect that his anachronistic view of Israel, dating back to the heyday of Labor Zionism, is partly responsible for his refusal to stand up to Benjamin Netanyahu. But on a day-to-day basis, the administration often looked, to those who shared its priorities, to be doing a decent job.

Seriously? Who the hell is "standing up" to Israel these days? Schumer criticized BN, yes, but anyone who criticizes Israel overall much at all is tarred as almost a traitor. The border bit is also a stretch, whatever it exactly means. 

Biden was very well "doing a decent job." In fact, he was doing a rather good job. I didn't want him to win the primary in 2020. I acknowledge he was the right person for the job at that time. He was still making sound decisions.

So, yes, I thought it made sense for him to run for reelection. I knew he was old. Duh. We as a nation failed in 2024. It is unclear to me that Biden not stepping down sooner was the reason that happened. 

Appearances matter in politics. Once the debate occurred, and there was a constant drumbeat that he was unfit (which I STILL am not sure was warranted), he had to go. He did go. As the authors acknowledge, his sound judgment remained. 

SCOTUS Watch: Special Mid-May Oral Argument

Jackson Speech 

Justice Jackson has been the only justice of the current court to provide transcripts (three) on the website's speech page. 

The latest was "Remarks for the Harry S. Truman Good Neighbor Award." She used the chance to talk about Truman's desegregation of the military and a grave wrong involving the blinding of a black military veteran. Trump is segregating the military (trans).

Busy Thursday 

Thursday involved an opinion announcement, bar admissions, an oral argument, and a conference. An order list will come on Monday. 

Roberts also said a few words in memory of Souter. We only got to hear the oral argument involving universal injunctions in the birthright citizenship lawsuits. Ah, selective open government.  

Fourth Amendment

The opinion (nine pages) was a unanimous decision by Kagan rejecting a "moment-of-threat rule" to determine reasonableness. Kavanaugh (six pages) for four justices (the conservatives other than Roberts and Gorsuch) wrote a concurring opinion to remind:

In analyzing the reasonableness of an officer’s conduct at a traffic stop, particularly traffic stops where the driver has suddenly pulled away, courts must appreciate the extraordinary dangers and risks facing police officers and the community at large.

The case was brought by the estate of a man who was killed by a police officer who pulled him over for unpaid tolls. When the man started to drive off, the officer jumped onto the doorsill of the car and shot the driver. (SCOTUSblog live blog summary.)

The short opinion used a totality of circumstances rule, not just focused on the moment of the violence, and sent it back to the lower courts to deal with the dispute once more.  

More Trump Stuff

The Supreme Court handed down an opinion late one Friday night to hold up some imminent Texan deportations involving the Alien Enemy Act. They handed down another unsigned order with Alito (with Thomas) dissenting on Friday. 

SCOTUS points out that the Trump administration claims it can't retrieve migrants once they've been sent to CECOT, adding: Well, if that's true, then migrants must receive especially robust due process protections before they're expelled to El Salvador. 

Steve Vladeck argues this ruling is pretty serious stuff. Check him out for some of the technical but important legal details. 

They did add: "The Government may remove the named plaintiffs or putative class members under other lawful authorities." I wouldn't trust them.

Kavanaugh concurred, logically favoring the Court to take a case to decide the substance. I would hope that would lead to a good result. The misuse of the AEA here is not quite as bad as the Administration's birthright citizenship argument, but it is up there.

Other News 

We separately dealt with the order that rejected a final appeal in a capital case. The Supreme Court also selected someone to defend a decision in a case where the government decides not to do so. 

Execution of Glen Rogers

Corinna Barrett Lain's new book shows that many problems with lethal injection. She briefly references nitrogen gas, including this latest panacea's botched introduction. 

Professor Lain is morally against the death penalty (her acknowledgments quote the Bible for her motivation in writing the book), while history also suggests the government cannot be trusted. Elsewhere, she argues the firing squad is the best of the available options:

When asked what the most humane way to execute someone would be, Lain’s answer is the firing squad. “Death by firing squad is nearly instantaneous,” she says. “That’s certainly better than being electrocuted for five or six minutes or being gassed to death for six to 10 minutes or being slowly suffocated under a veneer of peacefulness for 10 to 20 minutes.”

The book, however, shows how the public rather provides the image of civility:

“The firing squad is too honest, too explicit about what the death penalty is. People tend to think it’s barbaric and archaic,” Lain said, adding: “In that way, it may start some very important, and long overdue conversations about the death penalty in this country.”

Justice Sotomayor's dissent in Glossip (Breyer's dissent regarding delays again will arise with Rogers, caught nearly thirty years ago) also notes that capital defendants might want to use this option over lethal injection. She leaves open the possibility that it would violate the Eighth Amendment as to "visible brutality." 

The South Carolina Supreme Court upheld the firing squad in its recent "find ways to deal with lack of execution drugs" legislation. Two justices dissented on state constitutional grounds. One found it "unusual" (the state constitution bans cruel or unusual punishments) while the other also found it "cruel." The question would remain whether it is more cruel than lethal injection. 

Lain summarizes: "states have sacrificed not only their professed commitment to humane executions, but also important values--government transparency, regulatory compliance, freedom of contract,* respect for the rule of law, and the utmost care in the most solemn of duties."

She briefly shows how the state screwed up carrying out nitrogen gas executions, So, Lain would not be surprised that South Carolina appears be having difficulty with the firing squad. Involuntary homicide, as compared to euthanasia (of pets or humans), is going to be hard no matter what. 

Back to Glen Rogers:

Justices, in a 26-page unanimous opinion, rejected arguments including that “newly discovered” evidence about sexual abuse and trafficking that Rogers suffered as a child should spare him from being executed Thursday.

The court also turned down an argument that using the state’s lethal injection procedure on Rogers likely would violate the U.S. Constitution’s Eighth Amendment ban on cruel and unusual punishment. That argument was based on Rogers having a medical condition known as porphyria and the potential interaction with etomidate, a sedation drug used in the procedure.

Professor Lain's book briefly addresses the failures of etomidate, which Florida alone uses. The court rejected the evidence as "new." Trying old arguments in new skins might help explain how this thing was drawn out so long. 

(The Supreme Court turned down a final appeal without comment.) 

The fact that people who murder, including a "Casanova killer" who was convicted of two murders and suspected of many more, have are generally screwed up is well known. The general answer is that lots of people are screwed up. Not as many are murderers. 

Glen Rogers' execution has issues. It took too long, the execution protocol is dubious, and there are some doubts that he is so guilty without mitigating circumstances to warrant execution. Another far from sympathetic person whose execution leaves something to be desired.

Florida executed him all the same. He decided to end things (after saying other stuff) with pro-Trump bit. 

==

* Drug companies have strenuously refused to supply drugs for executions. They have supplied drugs with contractual obligations to not do so. 

States have used many dodges, some blatant violations of contractual agreements, to get around such contractual obligations. 

The Not So Funny Pizza Gambit: Judicial Threats

I provided a discussion of an actor defending his trans daughter and a "Say No to Cuomo" piece here.

The annual average rose from 1,180 incidents in the decade prior to Trump’s campaign to 3,810 in the seven years after he declared his candidacy and began his practice of criticizing judges. In all, the Marshals documented nearly 27,000 threatening and harassing communications targeting federal courts from the fall of 2015 through the fall of 2022, a volume they consider unprecedented in their 234-year history. There is no national data collection for threats against state and local judges. Many states do not even track the problem.

Concerns about attacks on the judiciary have been going on for years now. It is not just about Trump, though he plays a special role. We saw this during his first administration and during the interregnum involving attacks on judges overseeing his civil and criminal trials. 

A harassment called "squatting" is one egregious technique, including sending pizzas.

Federal judges say unsolicited pizza deliveries to jurists’ homes that began in February may number in the hundreds across at least seven states, prompting increased security concerns and a demand from a Senate leader for a Justice Department investigation.

Some of the pizza deliveries have gone to judges’ relatives. In recent weeks, orders have been placed in the name of U.S. District Judge Esther Salas’s son, Daniel Anderl, who was fatally shot at the family home in New Jersey in 2020 by an attorney who posed as a delivery person.

Judge J. Michelle Childs stands out since Senator Graham latched onto her as the "bipartisan" alternative to Ketanji Brown Jackson. You know, like Merrick Garland was the "bipartisan" alternative to Sotomayor and Kagan until he was actually nominated and never received a hearing.  

I did a quick media article check and did not see Lindsey Graham concerned about threats to Judge Childs. Maybe I missed something. There are so many Republicans concerned about Trump, so it is easy to lose track. I kid.

"Can it be so that Judges aren't allowing the USA to Deport Criminals, including Murderers, out of our Country and back to where they came from? If this is so, our Country, as we know it, is finished! Americans will have to get used to a very different, crime filled, LIFE. This is not what our Founders had in mind!!!"

The Trumpian rhetoric, not just "IMPEACH HIM!," is incitement. We cannot just take some tweet or whatever as a one-off. We have years of these things. We have January 6th. 

It is also not just Trump. 

Bondi-authored memo said that “an unelected district court yet again invaded the policy-making and free speech prerogatives of the executive branch.”

US Citizenship and Immigration Services reworked a notice posted to its website announcing that a Trump immigration policy had been paused by a court in California, according to court filings from the policy’s legal challengers. The initial version of the notice announced the court’s ruling and its impact on the policy using straight-forward language. But a few days later the notice was redrafted to take several swipes at the judge’s ruling.

“The Administration is committed to restoring the rule of law with respect to Temporary Protected Status (TPS),” the redrafted notice said, referring to the immigration program that Trump was blocked from winding down. “Nonetheless, on March 31, 2025, Judge Edward Chen, a federal judge in San Francisco, ordered the department to continue TPS for Venezuelans.”

Trump, by a broad brush, talks about "bad people" who investigated and went after him, including public servants and law firms. He did this in remarks at the Justice Department. Multiple justices, including Chief Justice Roberts, opposing calls for impeachment, responded.

“Across the nation, judges are facing increased threats of not only physical violence, but also professional retaliation just for doing our jobs,” Jackson said while addressing a group of judges gathered for a conference in Puerto Rico, according to The New York Times. 

“Our job is to stand up for people who can’t do it themselves. And our job is to be the champion of lost causes,” Sotomayor said during a Thursday event for the American Bar Association, according to The Associated Press. 

Like many of those pardoned January Sixers, these people feel they are following the wishes and instructions of Donald Trump. They are not deluded in so thinking. 

White House spokesman Harrison Fields said in an emailed statement that attacks against judges and other public officials “have no place in our society.”

“President Trump knows all too well the impact of callous attacks having faced two assassination attempts,” Fields said.

Sure, Jan. The attacks on judges are selectively criticized by some conservatives when the targets are judges they like. This includes when the "attacks" are reasonable criticism of ethics violations or mere disagreements of opinions. Roberts' end-of-the-term report mixed a bit of that in, too. 

When this happens, we get references to a mentally unwell person showing up near Kavanaugh's house armed with zip ties or the like before turning himself in, or a Barrett talking about wearing a bulletproof vest. Meanwhile, violent threats on Sotomayor are ignored. Bad pool, people.

Congress in 2022 passed the Daniel Anderl Judicial Security and Privacy Act, which restricts the disclosure or sale of personal information of federal judges and their family members.

And that is appreciated. 

Nonetheless, our abuser in chief is a symbol of the problem. There is a difference between valid criticism -- the Roberts Court surely is worthy of that -- and the Attorney General and other branches of the U.S. government making partisan attacks on judges. Toss in stonewalling or worse. 

I saw a few concerned liberal sorts oppose doing much at all when Trump attacked judges during his civil and criminal proceedings, even when he used rhetoric that would have resulted in sanctions for others. We get talk about the First Amendment and attacks on people as being too prosecution-friendly. What of the concern about the rule of law?

Thanks to all those judges, and their law clerks (the judges aren't writing those thousands of pages of opinions by themselves), who are doing their jobs. Maybe, someone should send (in their own names) thank you flowers or something. Or whatever is ethically allowed. 

Maybe something in their names, since these days they know not to receive things from strangers.  

Perhaps, a (vegan) pizza. 

Mom's Day Away

Bonnie Somerville was great as Mona (a very forgiving girlfriend of Ross) on Friends. She was involved in various things since then. This was around thirteen years later.

It's an enjoyable Hallmark film. She's a (married) mom who needs a break. So, the film is not really a romance, except for a little bit about her bestie needing to decide if she wants to get serious with her boyfriend. The girlfriend sounds familiar, but maybe it's the accent. Don't recognize her stuff. 

Nothing profound, but paced well and has a good message. Plus, the supporting cast is overall good and works well together. Multiple montages and stuff since the mom is slumming it for her Mother's Day weekend. 

(I watched some of Bad Moms, after Christiana Applegate referenced it on her podcast. It has some charms, but it was also like a mom fantasy. The lead gets the hottie widower, who not only praises her mom skills, but asks her if he could go down on her again. "Uh nah, you did enough already!"*)  

So, it was a bit different from the usual Hallmark fare and went down easily. Not sure why it was on the day before Mother's Day, but these days you DVR and watch later a lot anyhow. 

Nice to see you again, Mona! 

==

* Somehow, however, the only nudity in the film was a full frontal involving the cam girl, who she caught her husband watching. A joke is that the woman is quite hairy down there. Which is a nice look. 

If we are going to give the moms some love -- and ultimately it was pretty conservative since even the whore-y single mom turned out to LOVE her kid -- shouldn't we have a bit of male nudity? 

Trivia: Mila Kunis was born in Ukraine! 

SCOTUS Watch

Order List

The Order List was a bland housekeeping bill. 

Amy Howe referenced a dispute involving Cuba that the justices asked the solicitor general to provide an opinion on. 

Trans Military Ban

(Gay USA photo)

More notably, if sadly not surprising, the Court (without comment) lifted a stay of Trump's offensive anti-trans military policy. The liberals (without comment) dissented. 

Mark Joseph Stern provides details, including a reminder that SCOTUS split the same way in 2019. That policy, however, was not as offensive, only stopping new recruits. 

Emily Schilling is the lead plaintiff declared:

I did two tours in Iraq and Afghanistan. 60 combat missions. Later, I went on to be a test pilot, and then the meritorious promotions. I have been at the pinnacle of naval aviation. I think I am proof that we are qualified to serve.”

These are the people the Administration is disgustingly calling unfit liars for not accepting "their true natures." The order is already having a major effect, with this article talking about a thousand trans people being part of a "voluntary separation" process. 

C-SPAN Asks for Video 

In the old days, the goal was to have audio or same day audio. Now, we have same day audio.

C-SPAN asked John Roberts to allow video for the upcoming procedural themed birthright citizenship oral argument next week. Good luck with that though it is a reasonable request.  

Many lower federal courts, state supreme courts, and foreign supreme courts allow video. Spoiler alert: when they release opinions and have their oral argument next Thursday, we won't have video.

RIP Souter

David Souter has died at age 85. He was one of my favorite recent justices, even though I was wary about his nomination when it was first announced. C-SPAN has a useful Souter page.  

When the Supreme Court rises for the summer recess this year, I intend to retire from regular active service as a Justice, under the provisions of 28 US.C. § 371(b)(l), having attained the age and met the service requirements of subsection(c) of that section. I mean to continue to render substantial judicial service as an Associate Justice.

The Washington Post has a good obituary. One thing some liberals liked is that "he knew when to retire," easier for someone who hated D.C. and liked a low profile. Souter continued to serve in the Court of Appeals (Breyer is there now) until 2020. 

He was a quiet, principled man who cared about civics. It is fitting and proper that he was born on Constitution Day (September 17).

And, yes, his Yankee Republican values appeal to me. This includes both his politeness, restraint, and general ethics. I'm more okay with computers. His famous Harvard speech showed the reality of a Constitution that develops as society does. 

A former clerk, Julian Davis Mortenson‬, on BlueSky noted: "Justice Souter was a great man, and he was a decent man. And he knew which was more important." He also had a quiet sense of humor. 

The Nine cited an example showing his style:

Souter also had an unpublished dissent in the Citizens United case, which was reargued after he resigned. Richard Hasen flags an earlier opinion that represents support of campaign finance laws. This shows that he had some firm beliefs and did not just take every case as it came. See also his strong separatist views on religious liberty and federalism dissents.  

His joining the liberal/moderate wing (it took him a bit of time to kick in, as seen in early cases like Rust v. Sullivan) led to the cry of "no more Souters," though the shock somewhat confuses me. He was a New Hampshire Yankee Republican whose leading sponsor was a moderate Republican. 

He also guarded his privacy, including beyond where it should have been secured: 

Of the much-debated concept of installing cameras in the court, Justice Souter quipped, “Over my dead body.”

Will they allow cameras next week? Too soon? 

The Supreme Court justices released some statements honoring Souter. They were mostly brief, perhaps recognizing he would have liked it that way. RIP.