SCOTUS Watch: Sotomayor/Jackson Dissent a Lot Edition

More Opinions

Friday brought six more opinions. There are ten left, which might be two days of opinions. Maybe three, which I would not be surprised about. So, they are mostly on schedule. 

There was a good amount of writing, though we are not talking hot-button stuff overall. The things covered included various regulatory issues, a disability claim that led to a strong dissent by Jackson, and a unanimous (on result; the one case Sotomayor and Jackson simply went along). decision about jurisdiction in a lawsuit against the PLO.

Kagan had a strong dissent for the liberals in a regulatory matter arising from fax machines (just the fax, ma'am). She was not happy about the result ("Those words mean what they say, or anyway should.") I usually trust her judgment. 

Alito (with Gorsuch) grumbled some in dissent that provided a limited liberal result in a sentencing case. "Veteran trial judges often complain that their appellate colleagues live in a world of airy abstractions." The two former district court judges joined the majority opinion. Barrett replied at one point in a footnote regarding his "curious" allegations. 

Jackson, who used to be a sentencing commission member, concurred to partially disagree with some aspects of the opinion. She had a strong dissent (Sotomayor went along part of the way) in that disability case. 

Jackson included an on-point footnote answering Gorsuch's charge that she avoided relying on pure textualism as "insufficiently pliable." She noted that "ambiguous text" requires using multiple interpretive approaches because "pure textualism is incessantly malleable." 

Yes. People too often are cocksure about what the text means, sometimes in annoying Gorsuch-like fashion accusing people of making shit up because they are biased if they don't agree. This is not just something conservatives do, though they often are more likely to do so.  

Text is not always so clear. We often look at it through a glass, darkly, to quote Saint Paul. The appropriate means of interpreting the English language includes factoring in multiple criteria. Pure textualism, whatever that means, alone means using textual interpretative devices (with obligatory citations of a Scalia text) that offer multiple options.

Anyway, the cases are not overly exciting, and Kagan only dissented in one. They are of some importance, which again explains why Sotomayor and Jackson have so many separate writings. There are various lessons to be learned.

Eric Segall (Dorf on Law) on Bluesky noted:

The Court’s 4th case, for standing nerds, basically stands for the proposition that companies seeking profits have a much better chance of getting standing than civil rights groups and journalists. Pitiful and pathetic.

I'm not a standing nerd but respect his opinion (up to a point) on such matters. Jackson's dissent (Sotomayor dissents less strenuously) basically agrees with him, referencing eroding public trust and so forth. 

Jackson today knows her role -- liberal dissenter, speaking for the future. She has the "lone ranger" role Rehnquist had in the 1970s. This makes a Bluesky comment about her being a future Chief Justice even more apt. Took fifteen years, so have a ways to go. 

Mark Joseph Stern: "What you see in today's opinions is the three liberals assuming different roles. 

Kagan is the conciliator, siding with the conservatives to assure them she's reasonable. KBJ is ready to shoot flaming arrows and burn it all down. 

[#TeamJackson!] 

Sotomayor is in between them, trying to find middle ground and keep the peace." Sotomayor as peacemaker is almost amusing, but she does that. She had spoken of "her friend Gorsuch," for instance. 

Chris Geidner also has more on the trans health case, which deserves firm denunciation. 

Trump Enabling Watch 

The 9th Circuit helped Trump regarding his power to send the National Guard to California. They provided a rather low bar for determining normal means was not enough. 

Courts will be loath to interfere with executive discretion in such cases, but Judge Breyer (not that one) had a point. Overall, procedurally, it was a limited win for Trump.  

Meanwhile, the Supreme Court handed down an order that "the motion of petitioners to expedite consideration of the petition for a writ of certiorari before judgment is denied" in a tariff case. 

Coming Up

We are coming up to the home stretch of the June home stretch. Another Order List on Monday. At least two opinion days. Two executions scheduled. 

The next opinion day for now is Thursday. That would allow for opinions days on Thursday and Friday, with a clean-up on the following Monday (June 30).