SCOTUS Watch: Justice Jackson Is Busy

Justice Jackson stands out in today's Order List.

The order list starts with a procedural move that includes Jackson going along, but for a limited reason (see here; correction). 

Jackson and Kavanaugh don't take part in a case. Only Jackson explains why. (Kagan also follows that practice). 

Jackson dissented from the court’s decision to reject a request from Danny Howell, an Indiana inmate serving a 70-year sentence, to file a petition for review “in forma pauperis” – that is, without paying the $300 filing fee and the more substantial costs of printing a Supreme Court brief. The court’s order provided that because Howell “has repeatedly abused this Court’s process,” he would not be able to file new petitions “in noncriminal matters” (such as habeas relief, which is civil) without paying the filing fees.

(Amy Howe at SCOTUSblog)

The rule, put in place with the liberals of the day dissenting, has been around since the 1990s. Ginsburg et. al. went along. I appreciate that Jackson (she draws the line at incarcerated people), with her criminal defense background, did not. I wish she had done so before now, but better late than never. 

She also only concurred in judgment, a solo job, in a technical procedural case. The other two opinions were five and six pages each, each unanimous, though there were some separate writings. Sotomayor added a page in one, and Thomas (with Gorsuch) found another originalist hobbyhorse in another. 

Jackson also (along with Sotomayor) was an enthusiastic questioner in today's Second Amendment case out of Hawaii. She, in part, flagged how "history and tradition" advocates selectively find some history distasteful, skipping over it.  

The specific dispute was a strawman. The state's advocate tried to point out that, yes, one of the precedents cited was among those laws passed in the infamous "Black Codes" era after the Civil War. 

Nonetheless, the Reconstruction Congress accepted it, unlike others. Multiple conservatives latched on to the first part but ignored the second. Typical selective originalism. 

And, if the conservatives think "history and tradition" should be applied with an eye toward tainted pools, I have a thing or two to tell them about abortion bans. 

A completely nuanced take on history is both important and hard. See, e.g., the executive removal cases, which will continue tomorrow.