Order List + Execution Week Begins

SCOTUS

The Supreme Court added a case involving plea bargains to the docket on Friday. 

Saturday brought an article about lower court judges being upset about the shadow docket. 

Today was Order Day (given yesterday was a holiday). Kavanaugh, Alito, and Gorsuch recused themselves without stating why.  Sotomayor, for the liberals, flagged a troubling jury/capital case. 

Gorsuch said he is open to incorporating the Seventh Amendment. If so, go all the way, since the grand jury is also quite important, and the Third Amendment also has its importance. 

Alito (for Thomas and Gorsuch) also added a short statement noting his concern that schools do not notify parents about children transitioning. Such things, unlike abortion or birth control (Thomas), are a fundamental right. 

ETA: Both Sotomayor and Alito used the word "tragic."  We were able to hear the full opening material (e.g., bar admissions) on the first day of the term. Not so this time, apparently, since the C-SPAN audio starts with the first oral argument, with a tiny bit of Roberts swearing in lawyers. 

I also skimmed (it's too long for me to read; it might have been back in the day) the famous Learned Hand biography. There's a lot of interesting content, although some chapters are tedious. A nice anti-originalist quote:

[I]f our Constitution embalms inflexibly the habits of 1789 there may be something in the point. But it does not; its grants of power to Congress comprise, not only what was then known, but what the ingenuity of men should devise thereafter. Of course, the new subject-matter must have some relation to the grant;  but we interpret it by the general practices of civilized peoples in similar fields, for it is not a strait-jacket, but a charter for a living people.

Reiss v. National Quotation Bureau, 276 F. 717, 719 (S.D.N.Y. 1921).

His Bill of Rights lectures, however, simply go too far. Judicial review is part of our constitutional system. Yes, you can be quite wary about applying it. But it is a thing. His career as a whole wasn't such "judicial restraint on steroids" as all that.  

Two Executions 

It also marked the beginning of a busy week of executions. 

Texas, which has its moments, stopped (for now) an execution. It involved discredited shaken baby evidence. But we still will have a busy week.

Lance C. Shockley was sentenced to death for the murder of a Missouri police officer. That was twenty years ago, which (yet again) gives me a chance to cite Stephen Breyer's concerns that delays at some point are unconstitutional. 

Murder of police officers is one of those crimes even those wary of the death penalty might make an exception for. However, as usual, some red flags arose. For instance, the jury split on whether to give him the death penalty, with the judge deciding. 

(He also had a failed religious liberty claim regarding what he wanted at his execution.  The Supreme Court rejected it without comment, though it waited until sometime late afternoon execution day or so to do so.)

If there was going to be a busy week of executions in 2025, obviously, Florida would have to get involved. Samuel Lee Smithers murdered two women around thirty years ago (1996). He was the subject of "Deacon of Death," a true crime novel.

(He was a church deacon. He was also connected to church arsons. The murder victims here were prostitutes. Is there some twisted religion angle?)

Smithers was executed when he was in his early 70s. The question remains if it is legitimate to execute him after all this time. Mental issues were flagged, and a victim's father said she would not want him to be executed. What of the other victim?

An execution at this point does have shades of involuntary euthanasia. In fact, the final appeal (as usual disposed of by SCOTUS without comment) argues it is unconstitutional to execute the elderly. The long time that has passed is mixed in.