Executions

There were three executions scheduled this week:

May 20 AZ Leroy McGill

May 21 TN Tony Carruthers

May 21 FL Richard Knight

Tony Carruthers is most troubling. 

But in the decade that followed the trial, as post-conviction litigation played out in the courts, testimony from other forensic experts cast serious doubt on those supposed facts. Now, with the state set to execute Carruthers on May 21, his attorneys are arguing not only that forensic testing might prove his innocence, but that his death sentence was based on an inflammatory falsehood. 

Other than the three-decade wait, which yet again is a problem, this execution has a bunch of issues. We had a serious innocence claim, mental health issues, self-representation, and more. 

He was released in late 2015. Before his release, how­ever, in 2010 and 2011, he met with members of a fed­er­al defense team and affirmed what Mr. Carruthers had long main­tained: Mr. Carruthers was not involved in the crime. Instead, he point­ed to an alter­nate sus­pect who was killed in 2002 but whose fin­ger­prints and DNA sam­ple are on file with the med­ical examiner’s office. 

I understand that liberals feel they should pick their spots. But this is a case that deserved at least a statement. Instead, we had multiple "no comment" orders rejected various claims. 

It also deserved a commutation. The co-defendant is out of prison. Instead ... he wasn't executed.

Why? They botched it. See you in 2027?

==

McGill flagged procedural problems and didn't have a final appeal. Horrible crime, which happened about twenty-five years ago. Again, that's too long ago. (Breyer, dissenting.)

Florida has executed some long-in-tooth cases. This one was "only" about twenty years ago. Domestic crime where the person also murdered a child. 

The challenges repeated stuff that was rejected before. Understandably, no justice commented. 

Both were executed. 

==

The first case is particularly arbitrary. 

The other two are more standard "death penalty as a whole is a bad policy" cases. 

PUNT

The Supreme Court handed down three opinions today. Jackson wrote a quickie on ERISA, Kagan had a solo dissent in a second, and they punted.

(More next Thursday.) 

Hamm v. Smith involved the rules in determining when someone is intellectually disabled enough to avoid execution. Some worried that it would result in a significant shift rightward, perhaps on much more than the specific subject matter.  

The justices decided to "DIG" it as improvidently granted. You can hear Alito grumbling. 

Kagan, Barrett, and Kavanaugh didn't provide any thoughts. Sotomayor (with Jackson) explained why they thought it a bad vehicle and responded to Alito's dissent (with Thomas joined in full, Roberts and Gorsuch mostly). A lot of writing for a DIG. 

Thomas, on his own, also strongly dissented, wanting to toss Atkins v. Virginia (intellectually disabled cannot be executed) entirely. 

Net result: The Supreme Court, on a 5-4 vote, lets stand lower court decisions tossing out Joseph Clifton Smith's death sentence in Alabama because the court found he is intellectually disabled.

Tina Peters Commutation + $1.776B Trump Slush

I cover both here. 

SCOTUS Watch: Order List

A ten-page Order List with various odds and ends.

Chris Geidner notes on Bluesky:

Also in today’s orders, SCOTUS sidesteps ruling on private enforcement of Section 2 of the Voting Rights Act, sending two cases back for post-Callais reconsideration. Jackson dissents, pointing out that Callais had nothing to do with private enforcement and saying she would have summarily reversed.

Rick Hasen summarized:

Justice Jackson dissented from the order, on the sensible grounds that Callais did not consider the right to sue question. Of course, the stakes are much lower now that Section 2 is essentially dead no matter who sues.

(His colleague was more sympathetic.) 

Also, a cert grant (per Geidner):

The Supreme Court takes up a case over whether employees of federally funded schools can sue to enforce Title IX’s sex discrimination bar. 

Kavanaugh, without comment, noted he would have granted cert. in another case. If you do a docket search (on another page since the Order page does not provide links):

Whether a multiemployer pension plan that terminated through mass withdrawal before the 2020 plan year is eligible for Special Financial Assistance under 29 U.S.C. 1432(b)(1)(A).

Alito and Barrett didn't take part in the examination of a couple of cases. Again, only Kagan and Jackson regularly explain why they do that. 

Sotomayor added a brief statement noting that she agreed with the court not taking a criminal case because the government admitted error and the defendant received all that was requested for. 

The next thing on the schedule is an opinion day on Thursday. Next week's orders will be on Tuesday because of the holiday. 

===

I agree with Steve Vladeck that justices should show up more in front of Congress. Court reform includes multiple things, including some that should have bipartisan support. This is one such proposal. 

“Rededicate 250"

The “Rededicate 250: A National Jubilee of Prayer, Praise & Thanksgiving” event in D.C. today had a Christian Nationalism feel. 

The Washington Post article's title:

Trump-backed prayer festival on National Mall draws thousands: ‘We welcome Jesus!’

It was not merely a private event:

A crowd of thousands transformed a block of the National Mall into an evangelical-style worship service Sunday at an event backed by President Donald Trump and funded with millions of taxpayer dollars.

Trump didn't show up. They played a video of his reading a Christian Nationalism-friendly biblical quote from a different event. A few signs of religious diversity (including the usual Judeo-Christian touches with Judaism as a the clearly junior party) aside, the dominating force was apparent:

People described a variety of reasons for coming — to bring awareness to what they see as harassment of or disfavor toward conservative Christians, to pray for the country to repent for its sins, or to fortify what they call the Christian roots of the country — in particular against Islam or other faiths outside Christianity or Judaism. 

Pete Hegseth referencing the mythical story of General Washington kneeling to pray story is the flavor of "history" we will see here. An honest accounting of our nation's religious story would be helpful. 

This bunch, with Trump as their false god, won't give it to you.  It is more likely to be blasphemous, including to many Christian believers. And, to our overall values.  

SCOTUS Watch

The Supreme Court is beginning its final end-of-term push. They will meet on Thursdays until the end of June. Opinions dropping will be likely.

More VRA News 

They had no Order List on Monday. No problem. They often make news outside of those often no-drama orders.

For instance, the aftermath of a major Voting Rights Act decision continued. It involved Alabama. Sotomayor dissented for the liberals. 

The conservatives didn't explain themselves. Bad decision, but not the end of the line. Meanwhile, there continues to be a lot of jockeying in multiple states.

The Virginia state supreme court ruling was not a good decision. The Hail Mary federal challenge was also not good. It was rejected without comment. 

Arguments 

We don't get video or even audio (for opinion announcements) of the proceedings. 

Amy Howe showed up since we cannot. She promoted, as a witness, greater transparency during the proceedings of the Biden Supreme Court Commission. Her summary of this term's arguments is interesting. 

Opinions 

The usual practice is for the justices to drop a limited number of opinions in late May and early June. Then, we will have an influx, with multiple decision days in one week to complete the job. Late term rush.

There are worse things to worry about. All the same, this is a bad job of pacing yourselves. 

Anyway, as expected, the two opinions (both unanimous with one concurrence) are non-controversial. The usual sentiments about how such opinions are still of some significance aside, neither is not a "high profile" case worthy of much attention. 

Abortion Pill News

The Fifth Circuit dropped a ridiculous opinion preventing Mifepristone from being prescribed by telemedicine and delivered by mail. The decision is bad both procedurally (standing) and on the merits.

Justice Alito, in charge of the Fifth Circuit, granted a temporary halt (administrative stay). He (selectively) had it expire on Monday afternoon and then extended it to Thursday afternoon. So, after two opinions few cared about dropped, bigger news was forthcoming.

(The link underlines how the change in Administration matters.) 

The Court, about a half hour late, granted a regular stay. Thomas and Alito dissented for different reasons. Alito noted the Court did not explain itself (which is unfortunate), which he did not find problematic about an hour later, when an execution was involved.

One notable thing about Alito's dissent is that he references how a change of policy in the Biden Administration helped protect the supply of abortion pills after Dobbs. State shield laws, including in New York, were also quite important.

Michael Dorf has more, including a reference to a good article on the Comstock Act. A previous discussion, which includes a reference to a Biden DOJ policy statement, is also worthwhile. 

Busby Execution 

A murder apparently motivated by robbery led one person to be sentenced to death, the other to prison. 

After over twenty years, too long (Breyer), Texas was ready to execute him. There was a claim of intellectual disability, which even the state witness granted.

The Supreme Court has held that intellectual disability at a certain point will make execution unconstitutional. It is also a mitigating factor. 

The seriousness of the claim is suggested by the fact that even the conservative-leaning Fifth Circuit at least temporarily held up the execution. The justices overturned the stay without comment.

Kagan dissented without comment. Jackson (with Sotomayor) briefly noted how gratuitous it all is. 

He was the 600th execution in Texas since 1982.

Upcoming

Order List on Monday, and another opinion day on Thursday. Who will buy Souter's home? 

In-Lawfully Yours

I referenced this film about six years ago. The video I used is blocked. I summarized:

Up Channel has "new" films on Sunday nights at 7/11 that are actually not new but promoted as new. For a few weeks now, the picks have been overall pretty good. 

This week, we had a city girl, not much into God, come to help her old mother-in-law (as in ex -- the hubby cheated on her) move after the father-in-law died. She falls for the new minister, whose deceased wife was her sister-in-law. 

Thus, the punny title. Various familiar faces, including two people in current shows and two from old shows. It has light touches mixed with a lot of serious content. 

Well-acted, with the story pretty well paced too. Sorta topical.

The film was a Regents University production. The DVD behind-the-scenes extra talks about that, including how film students were involved. 

Its website offers:

Experience the difference of America’s Premier Christian University that offers over 150 areas of study online and on campus in Virginia Beach, Virginia.

"Christian" means a variety of things. The film promotes an open-minded view. After all, the minister might be a widower, but the other love interest is a divorcee. 

At one point, her ex comes back pretending to want to reunite. He claims to be reformed. It is a trick. Some Christians would find that troublesome. Why not make it a redemption story and save her from the evils of divorce?!

She asks a lot of questions about the Bible and religion in the film. The film cheats a bit by not providing too many answers to her questions. 

Yes, how do you know you chose the right religion? Yes, how did Job getting a new family really help him after his old one all died?  

The film does know that a "message" film should first be a good film. The Bible is filled with stories that teach us. They are also enjoyable stories. They were passed down for more than their moral lessons.

I re-watched the film (at least for a third time) and still enjoyed it. The husband's coming back is a bit heavy-handed, but it is an understandable plot device. Got to earn that nice ending. 

Still, I want to get past that and back to the pastor and his sister-in-law building a relationship. They are a good couple. And both are well-rounded, complex characters. 

Mets at the 1/4 Way Point

 

A lot of mediocre teams. A lot of teams are under .500. After 40 games, the Mets are at the bottom of the pack at 15-25. A lot of baseball is left. Still, that's pretty bad.

Update: Good week, including an "instant classic" win vs. the Yanks. 

Umpire John

Judge Sotomayor, before becoming a justice, noted that appellate judges make policy. They set forth rules while district judges largely determine facts.

As Lawrence Hurley reported for NBC News, Roberts continued: “I think they view us as truly political actors, which I don’t think is an accurate understanding of what we do. I would say that’s the main difficulty. “

What is a "political actor?" Let's go the dictionary:

political

adjective

po·​lit·​i·​cal pə-ˈli-ti-kəl 

1a: of or relating to government, a government, or the conduct of government

b: of, relating to, or concerned with the making as distinguished from the administration of governmental policy

2: of, relating to, involving, or involved in politics and especially party politics

3: organized in governmental terms

political units

4: involving or charged or concerned with acts against a government or a political system

political prisoners

The Supreme Court plays a significant role in setting forth policy. It does so in ways with many political implications. Fitting those definitions. 

The term "political" is disfavored by many judges. It sounds like they are "politicians" who are shady sorts. Judges are supposed to be above the fray. They are special.

We accept too much the idea that politicians, who represent us, are allowed to be "dirty." It helps Trump some since "they are all bad, right?" 

But John Roberts is setting forth an artificial dynamic here. The Supreme Court has a political role. His saying after the recent Voting Rights Act opinions is even harder to take. 

Each branch of government has different roles in our system. Courts have a role that is more independent in certain respects. They, however, are not just off on the side, outside of the political system.

Honesty can help us determine how to react, including what sort of reforms of the courts should be sought. 

===

Talking political, I talk about the Virginia Supreme Court (4-3) overturning the redistricting measure here. tl;dr: It was not a scam that they waited to decide, but how they ruled looks pretty sketchy. 

National Day of Prayer

I agree with the Freedom From Religion Foundation, whose lawsuit was successful at the district court level before losing on standing, that this is unconstitutional. (Link to litigation at that linked discussion.) Good luck doing so these days.

The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.

Congress should not be selectively advising people, especially the president [though this one is quite willing to do so without being pushed], to pray. The district court opinion from the before times referenced Justice Blackmun's opinion in a creche case (Allegheny):

It is worth noting that just because Marsh sustained the validity of legislative prayer, it does not necessarily follow that practices like proclaiming a National Day of Prayer are constitutional. Legislative prayer does not urge citizens to engage in religious practices, and on that basis could well be distinguishable from an exhortation from government to the people that they engage in religious conduct. But, as this practice is not before us, we express no judgment about its constitutionality.

The dissent acknowledged that the legislation “is a straightforward endorsement of the concept of turning to God in prayer." [cleaned up] These days, that sort of thing is more and more allowed. It still is bad under the First Amendment.

The word "may" aside, the legislation has the purpose and effect of promoting prayer. It is a "National Day of Prayer." Baptists who respect the separation of church and state see the problem while realizing there are worse breaches.

(There is a reference to meditation, but it remains a day of prayer. And not everyone does that either.) 

I again note that -- though prayer is something many religions do -- the language favors Christianity. There is a reference to "churches," not places of worship. 

Religious liberty warrants a separation of church and state. It also warrants avoiding favoritism, including selectively instructing the president to proclaim about certain religious activities. 

What We Stand For

Joanne Freeman, the historian, argued on BlueSky: 

• Empathy 
• Diversity 
• Equity 
• Humanity (& the humanities) 
• A broad idea of “WE THE PEOPLE” 
• Concern for ANY kind of “we” Truth 
• (Real) history 

The current regime opposes these things. 

Needs to be stated plainly.

SCOTUS Monday (Not a Fun Day)

It started blandly with a four page Order List. Then, Alito provided an expected administrative (temporary) stay to the wrongminded abortion pill ruling. Then, it granted a request to immediately put the Voting Rights Act ruling into effect. Jackson dissented. Alito (with Thomas/Gorsuch) whined about it. Hit too close to home, Sam?

ETA: A request to recall the judgment was denied.

Trump Supports Anti-Christian Bias

Religion Clause Blog reports: 

Yesterday, the President's Task Force to Eradicate anti-Christian Bias issued a report (full text) titled Eradicating Anti-Christian Bias within the Federal Government. The 197-page Report (with an additional 368 pages of Exhibits) focuses on policies of the Biden Administration.

The report has the usual Trump anti-Biden bullshit. Biden, whose expression of religious beliefs was much more honest than Trump's, supposedly is "anti-Christian." 

Biden regularly wore his religion on his sleeve and did so a lot more credibly than the current occupant. His Administration also respected equality, including the diversity of Christian beliefs. 

Trump's Administration selectively weaponizes Christian beliefs, promoting Christian nationalism, while disrespecting many Christians. This includes changing long in place policy regarding ICE enforcement at places of worship.

Where is this so-called anti-Christian bias? For instance, people who blocked clinics, motivated partially by religious beliefs, were not allowed merely to continue to do so. Laws protecting clinics were enforced. So, people could freely obtain health care, pursuant to their (often Christian) moral beliefs.

Vaccine mandates were also enforced. First, the average Christian doesn't find vaccines problematic. Second, requiring workers, including health care workers, to vaccinate or use alternative methods to protect others, is not "anti-Christian bias."  

There are rules in place respecting non-profits with tax breaks. Religions and religious organizations, whatever the religion, don't deserve a special exemption from the rules here. 

And so, it goes on and on. The Trump Administration promotes a selective form of Christian nationalism. The Baptist Joint Committee for Religious Liberty has flagged the problems of Christian Nationalism. But then, they aren't the "Christians" the Administration is concerned about.

Religious liberty is a fundamental aspect of freedom, not just in the promotion of some favored ones. It is too precious to let such special pleading go on without comment. See also, Justice Thomas and his confused and biased take on how "they" ignore the true meaning of the Declaration of Independence. 

"Christianity" is not just a conservative form of it. "The left" are alleged to be anti-Christian and anti-religious. This is a vicious slander. 

SCOTUS Watch: Oral Arguments Wind Down

Order List

Two things stood out for me in a four-page order list. As Rick Hasen summarized on Bluesky:

The Supreme Court won't hear the case where a lower court temporarily stopped Texas from using its re-redistricted congressional maps. The Supreme Court just reversed that order without hearing argument or getting more briefs.

The liberals dissented (without opinion). There is a story here. We have another reversal, based on a short per curiam, of a 160-page or whatever district court opinion on the shadow docket. 

Steve Vladeck is on the case, not having patronizing conservatives referencing the "hysteria" over the question. Wow. Breyer says all is well. An accommodationist who is loath to criticize. I think his replacement is more on the money. 

(Vladeck, after the voting rights decision, wrote a partially paywalled piece on reforming the Supreme Court. He opposes court expansion.) 

Meanwhile, quoting Chris Geidner, they also granted another case:

SCOTUS grants another post-Jarkesy case about administrative agencies’ adjudicative powers, involving the Labor Department.

The liberals didn't like Jarkesy, but some left-leaning sorts thought it was correct to require additional usage of the federal courts. So, it's not a crystal-clear issue.

Arguments

The Supreme Court then spent two hours (too long) talking about "geofence" warrants. Sounds like a tricky case that they will try to rule on narrowly. OTOH, maybe it's too soon to judge.

The other notable oral argument (for me) is a late addition involving Trump's immigration policy. And with that, the oral arguments are likely done. 

Now, they will get to opinion writing, probably finishing by the end of June for their summer baseball camp plans or whatever they want to do. We will also likely see if Alito really is going to stay on. 

Opinions

Rick Hasen (Election Law guy) is EXTREMELY concerned about a big 6-3 (Alito v. Kagan) voting rights case handed down. It is "one of the most pernicious and damaging Supreme Court decisions of the last century." He's not one to exaggerate.

Kagan's concern is suggested by her dissent from the bench. Since we don't have audio (Oyez.com will provide it eventually after the term is over) or video, we can just read about both Alito (longer than usual) and Kagan's bench statements. 

Congress could, and eventually should, pass a new voting rights law. They have done so in the past in response to statutory construction. The current executive and legislature are not likely to do so.

I think Congress should have a fast-track process to address Court rulings regarding federal statutes. The 6-3 Supreme Court might then flag an alleged constitutional barrier to the legislation.

This is where court reform comes in. You have ethics reform, tweaking qualified immunity, term limits, and so forth. Various good policies on their own. 

A constitutional decision like Shelby v. Holder sometimes can be addressed (e.g., update the process there deemed out of date). Other times, you will run into a roadblock, like the Trump v. U.S. ruling. 

Some want to expand the Supreme Court. Others worry this will result in tit-for-tat responses and overall diminish the Court. 

Hardball will make for tough decisions at some point, including jurisdiction stripping and targeting their budget (minus reduction in salaries, which the Constitution prohibits). After all, if you use the budget to "blackmail" (pressure) the Court, does that not have some potential at threatening its integrity? 

I think we should put everything on the table. Reform will be tough. Serious reform, whatever it entails, might require ending the filibuster. Whenever bad opinions, especially ones with political/partisan valence like this one, arise, this talk does as well.

A trifecta is necessary. Let's start thinking. Meanwhile, jockeying by both sides in a districting race to the bottom continues. 

==

The first opinion was unanimous. The result in a future case could help liberals or conservatives. It involved the investigation of crisis pregnancy centers. 

Maybe it was the right decision, and it wasn't on the merits, though judges below disagreed. Was it that obvious? Shrugs. More on the background here. 

Executions

James Garfield Broadnax was nineteen when he was part of the robbery/murder of two people in 2008. Texas executed him. 

There is debate over how serious his role is, the use of race in jury selection, and other issues. Two confessed, one was given the death penalty. 

No comment by SCOTUS when rejecting the final appeals. The whole thing seems arbitrary. 

(A few judges have shown some concern about executing people under 21. The line now is eighteen.)

Florida executed someone sentenced to die for the rape/murder of his teenage step-niece, committed in 1976. James Hitchcock is not someone many will have sympathy for. It still is patently ridiculous to execute someone after 50 years. 

Florida is making a habit of this, though, even for them, 50 years is longer than most. As usual, I cite Breyer's dissent in Glossip v. Gross on this issue.

Since only a few justices over the years, none on the Court now, flagged that problem, his final appeals rested on other claims. His lawyers, yet again, raised a claim that the Florida lethal injection process is flawed.

Also, they again raise an innocence claim. It isn't new, so hard to see it working at this late date. He claims his brother did it. I doubt it. The time lag is my issue.

He committed horrible crimes. He was in prison for fifty years. Some members of the victim's family will obtain closure. That is a variable thing, and anyway, not enough to justify a few arbitrary executions.

A long prison term might also have led some to have closure. A lingering execution might have hindered the process as they waited a bit more time for it to happen.

Upcoming

No more oral arguments. 

There will be releases of orders (Monday) and non-argument sessions (often admission of bar members, but some opinion days might be mixed in) and conferences (Thursdays) until the end of June. At least, after a ten-day break after Monday (orders). 

(Memorial Day pushes one order day to Tuesday.)

There will also be various other days with orders and opinions, especially as things speed up in June. And probably a surprise or two mixed in. So, it goes.