SCOTUS Watch: Opinions

The Supreme Court is running out of no-drama opinions. We had three today. One split 6-3, but it was not a major dispute.

Jackson had a unanimous bankruptcy ruling. Thomas (with Gorsuch) said, "Let's go big." Sotomayor said, "Let's not."

Kagan had a unanimous statutory ruling. Bluesky legal minds flagged a notable comment that might limit the Trump Administration's current activities somewhat:

We hold that a defendant charged with violating §1519 must be tried in the district where the falsification occurred; he cannot be tried in a different district where the investigation was located.

The third case was a 6-3 opinion (Barrett v. Jackson) with Jackson having an extended discussion about legislative history. She's big about that sort of thing.

Kagan got off the bus there:

Reliance on legislative history may be appropriate when statutory text in context remains, after careful review, stubbornly ambiguous.

Kagan thought "text, structure, and statutory history" did the trick here. She did not (unlike Sotomayor) join Jackson on the rest. A reasonable position, succinctly expressed. 

I don't know who's correct as to the merits. I do generally trust Kagan's judgment when there is a disagreement. But her overall reasonableness is a guide for us all.  

Constitutionalism 

David Strauss, about fifteen years ago, wrote a helpful little book discussing "living constitutionalism." 

He argues that a form of common law, restrained somewhat by text (especially about clear matters such as the number of senators), is the appropriate path. 

Strauss goes a bit too far on how the amendments overall have been of little consequence. They do repeatedly do less than one might think. 

For instance, the Sixteenth Amendment overruled a dubious 5-4 income tax opinion decided in the 1890s. The original Constitution, on its own, authorizes income taxes.

On the other hand, acknowledging Jim Crow, the Fifteenth Amendment did signficantly advance racial equality, especially in the North. It helped in the South, even then, at least for a few decades. 

Originalism is a dubious path. It is not some big restraint. The alternatives are not just "make stuff up." And, originalists do that too, in a fashion. 

One online comment accepted the approach for rights but not powers. Doesn't work. The two are connected. And, appeals to original understanding to apply the Commerce Clause or whatever is silly business. 

Military Chaplain Updates

Military chaplains are a usual example of when we can have government support of religion.* 

Granting that, religion, especially mixed with government, remains a sensitive subject. The streamlining of "faith codes" underlines the point with controversy from various quarters. 

The so-called Department of War [still not a thing] posted on Twitter (blah) the general goal:

In order to clarify the work of chaplains and simplify the work of commanders, the Pentagon has consolidated and simplified the list to roughly thirty codes — using the previously used labels for faiths.

The Pentagon’s job is not to adjudicate theological debates, but instead to ensure sincerely-held faith is respected and encouraged in our ranks.

I'm not sure if its job is to "encourage" faith, sincerely-held or not, either. But, okay, let's go with that.

There was a major hiccup when Mormons were not labeled "Christians." Many Republicans (and Trump supporters) are Mormons. That caused a flare-up.

The new codes did not designate specific Christian denominations as such. Catholics were just "Catholics," not "Catholics (Christian)."

People were still upset that many other religions were left out. We just have a catchall "Other Religions" category.

Also, we have a single "Judaism" category, which includes multiple major groups, and a bunch of separate, relatively small (Church of the Nazarene?) Christian groups. 

Secretary of Defense Hegseth, who wears his specific Christian beliefs on his sleeve and promotes them in his official capacity, also made other changes. 

Hegseth has not earned much respect as someone to trust with such things.

Before the change, a chaplain’s uniform carried their rank insignia along with a symbol denoting their religion.

The policy, he said, “speaks to the difficult balance of the duality of a military chaplain. A chaplain is first and foremost a chaplain and an officer second. This change is a visual representation of that fact.”

Hegseth also said that removing rank allowed chaplains to “be seen among the highest ranks because of their divine calling.”

The person is a military chaplain. Rank is important to the military. They were seen as chaplains before. I'm unsure why this move is necessary. I would like to know how chaplains overall feel about it. 

The directive follows a broader effort by Hegseth to reshape the military’s Chaplain Corps. In a December message, he said he wanted to restore chaplains’ focus on ministry and argued that the role had shifted toward counseling and support functions in recent years.

What "ministry" entails depends on the person. For many, it would include "counseling and support functions." This seems like an idiosyncratic view of what the appropriate role of a chaplain is. Did he think the old way was too "woke"?

The good faith of this Administration, with its Christian Nationalism overtones, on this issue is already questionable. Hegseth has also shown to be racist and sexist, including regarding firings. 

We can move on from that. The general issue is sensitive. It is a good thing that it is getting some attention. Perhaps, more kinks will be worked out. 

==

Note: Religion is one of those subjects that will sometimes lead people to jump to first principles, including rejecting special rules for religions at all. Some will make some snide references.

So it goes. "Religion" is referenced in the First Amendment and is a general legal category, including in human rights law. It's a thing. 

"Immigration is the sincerest form of flattery."

 

Trump is anti-legal immigrant, even if "illegals" is the favorite go-to. My grandparents were immigrants. On the other side, they were once denounced as unfit to be American. Pig is right.

Giants QB Campaigns For Trump

I discuss the controversy arising from the Giants' QB introducing Trump at a campaign event. Trump is bad, the Giants don't need the drama, and they already had Epstein drama. No handwaving. The criticism of DART is appropriate. Meanwhile, Mets suck again.

Tina Peters Commutation + $1.776B Trump Slush

I cover both here. 

“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.  

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.

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.

Chadwick Willacy Executed

On September 5, 1990, Willacy, then 24, was burglarizing Sather's Palm Bay home when she returned home unexpectedly. Willacy bludgeoned Sather, 56, bound her hands and feet with wire and duct tape, and brutally strangled her with a cord. He later disabled smoke detectors, doused her with gasoline, placed a fan at her feet, and set her on fire.

Florida executed another person who committed heinous crimes decades ago. The Supreme Court never held, even if a few justices flagged the problem, that such lag times were constitutionally problematic. 

(See, e.g., Breyer's dissenting opinion in Glossip v. Gross, including how the state interest decreases over time. The person did serve three decades in prison.) 

The last appeal also had a repetitive feel. His lawyers sought information regarding the lethal injection process. Sotomayor recently noted she was concerned about possible problems, especially since everything was not out in the open. 

A long prison sentence is appropriate in these cases. The capital punishment system is too flawed to be trusted. Executing a few people among a bunch of horrible people, including decades later, is not a good use of the public welfare. 

ETA: Trump Death Penalty Watch

The Garland Justice Department placed a moratorium on executions. A final report flagged problems with lethal injection usage. 

The Trump Justice Department [I use that label advisedly] has addressed a different sort of problem. Recently, there have been issues with obtaining execution drugs. Also, some botching of executions.

The TJD has decided to provide an open season for alternatives. They will leave open the usage of electrocution, nitrogen gas, and firing squads. 

Trump 1.0 waited until mid-2020 to start executing people. There are now only three people (mass murderers all) on federal death row. It would be remarkably quick for some newly applied death sentence to be carried out in less than four years.

The three people on death row were sentenced in 2015, 2017, and 2023. Realistically, it would be difficult to see more than two of them being executed by January 2029. I might be wrong. But five years would be rather fast. 

I'm strongly against the death penalty. I acknowledge my anguish if any of those three are executed would be rather low in comparison to many other things these clowns are doing. 

The Biden commutations have realistically limited the ultimate harm they can do on this front. They can try to get some death sentences. Even there, their efforts might be somewhat limited. 

One person in federal custody for other crimes was released to state custody, where he was executed. States might manage to execute someone else somehow, too, including among those Biden commuted. So, Trump has some room there.

Still, on the "execution" front, he has done a lot more damage, illegally killing people, including in Caribbean boat attacks. 

SCOTUS Watch: Order List and Other News

Order List

Today's Order List was long enough that it suggested additional writings. It also had some notable developments, including a case that might further weaken Oregon v. Smith (general applicable laws are generally acceptable for religious liberty purposes).

One case on the "shadow docket":

By a 6–3 vote, and with no opinion, the Supreme Court throws out a lower court decision denying qualified immunity who killed an unarmed, mentally ill man by using "bodyweight force" to restrain him. All three liberals dissented.

A per curiam error corrects a lower court Fourth Amendment decision. Sotomayor, without comment, wouldn't provide relief. Jackson dissents with an opinion. 

Sotomayor, in a statement, discusses a dispute involving a child abduction measure. She agrees it is something they should eventually address. 

This specific lawsuit, however, is procedurally inappropriate to take. Nonetheless, she argues it was at least partially a self-inflicted wound by the Court.

Sotomayor, without comment, also noted she would have granted a case alleging evidence was not properly supplied in a criminal case. 

Justices Alito, Kavanaugh, and Barrett didn't take part in some decisions without saying why. Only Kagan and Jackson consistently provide their reasons. 

Shadow Docket Story

Steve Vladeck addresses a NYT article, with internal documents, discussing a major change in the shadow/emergency/interim docket in 2016. I agree with his overall analysis. The articles provide sunlight on issues of special concern. The actions are troubling.

Fix the Court suggests a proper response would be congressional legislation requiring transparency. If they abuse the process, jurisdiction stripping and budget cuts would be some possible consequences. 

(This was suggested in an email I received via a subscription.)

Or we can go the route of certain conservatives who think the leak is the biggest problem. The overall comments there, as I noted in a comment, ignore that internal deliberations are regularly leaked. Full documents are a step beyond that, but that might be appropriate (e.g., Pentagon Papers).

Thomas vs. Progressives

Prof. Segall focuses on his corruption -- Harlan Crow -- but also links to a wider discussion, how his usual "just so" historical account is garbled. This is who conservatives deem their model judge. 

Happy Birthday, Justice John Paul Stevens. And Adolf Hitler, apparently, going by Justice Thomas. 

Meanwhile ...

Some good news in a lower state court in Pennsylvania, which, on state constitutional grounds, struck down a Hyde Amendment. A concurring opinion also cited religious liberty. 

Some state courts went this route in the past. The principle should be applied nationwide. 

ETA: Two non-ideological opinions were handed down on Wednesday. Sotomayor had the unanimous opinion for one. Thomas had the other opinion, with a dissent by Alito, Roberts (relatively rare dissenter), and Kavanaugh. Sometimes, disagreements aren't always along the expected lines. But 6-3 is still a thing. 

Bible Reading Marathon

Trump Will Participate in a Marathon Bible Reading

He will read a passage from the Old Testament that his Christian supporters cite as a call to national repentance and divine blessing.

I have long had an interest in the Bible. I listen to Bart Ehrman's weekly podcast. I took a New Testament course a long time ago. I have read a lot about the subject. I once read the whole Bible. 

I am reading this book by Rachel Held Evans' sister. It works both as a general discussion of grief and grief rituals as well as a Christian discussion. She comes from that tradition. She's a good writer. 

People will have a cynical reaction to this effort. Trump surely doesn't seem like an honest broker here. The verse he read is somewhat ironic if read honestly:

If my people, which are called by my name, shall humble themselves, and pray, and seek my face, and turn from their wicked ways; then will I hear from heaven, and will forgive their sin, and will heal their land.

Certain evangelicals read some biblical quotes in a Christian Nationalist way. The original context was the Jewish people in ancient times. The current meaning should not be inferred to be a statement of Trump triumphalism. 

I think, quite honestly, our nation should humble itself and seek forgiveness for its wicked ways. It has supported Trump and committed much damage beyond that. It needs to accept what it did. It has to work toward healing.

Susie Wiles, the White House chief of staff, will read Proverbs 31, which includes a wide-ranging list of qualities of “a wife of noble character” that has become a touchstone for many Christian women.

This is another somewhat ironic choice. How would the original author feel about her position? How noble is it to be Trump's chief of staff?

Rachel Held Evans spoke repeatedly about that chapter, about "women of valor." Rachel did not just read the Bible. She studied it in depth. That is the best way. Also, it's a good thing to discuss. 

I suppose when the whole "Bible" is read, it will be the Protestant Bible. I was taught using the Catholic Bible, which has additional material. 

Congress, some time back, read the whole Constitution. Well, not really. They edited it somewhat, skipping over amended parts. That allowed them to skip over the slavery stuff. Did they read the whole thing when they did it again more recently? They should read the whole thing.

The Bible can get tedious, especially all those genealogies and rules and regulations. A few of the prophets go on for quite a long time. But it's okay if they want to read the whole thing. Should be done humbly and not as a partisan thing.

We see the world through a glass, darkly. 

ETA: I liked the book on grief. The chapters sometimes went too long. 

It is significantly a personal narrative, since she had multiple miscarriages and her sister died. (Her grandmother also died, but that is fairly typical for someone her age.) She is a bit privileged.

She has a husband, family, friends, and a rewarding career. Lots of people don't have all of that to fall back on. Toss in faith, no matter how she noted she sometimes struggled with it.

I respect her overall, helped by an overall liberal outlook. Still, that got to be a bit much after a while, especially with all the talk of rituals involving the community. Not everyone has "a community."

I also am not a Christian. Christianity can be fine. Stephen Colbert is a Christian and all that. 

This addendum is not about my disagreement with the basics of Christian doctrine. Still, the whole died for sins business. Such a great sacrifice!!!!!

That has long annoyed me. Many people suffer and die for a whole lot less. They often don't even know if their death will mean much. They might sacrifice for one person. Imagine dying to save humanity?

(I'll grant the premise! Still dubious!) 

And, sorry to bring this up, why did they need to be saved in the first place? Oh well.

Religious Liberty Commission Follies

At a Monday (April 13) hearing at the Museum of the Bible in Washington, D.C., Texas Lt. Gov. Dan Patrick, a Republican and the chair of the commission, asked, “Would it not be a good recommendation that every school, every university, every business, has to have that one sheet on the bulletin board about protecting people’s religious liberty, and that the separation of church and state is the biggest lie that’s been told in America since our founding?”

The Trump Religious Liberty Commission meeting at the Museum of the Bible (book) is fitting. The museum is an evangelical enterprise significantly funded by Hobby Lobby. 

The chair argued that "the anti-God left has used ["separation of church and state"] to suppress people of religion in our country." This is the "biggest lie" told in America since our founding. "Slavery is a positive good" is third or fourth, perhaps. 

Religious liberty is extremely important. It is also highly debated. But the commission is not set up for an honest discussion. The discussion might offer references to Baptists, Madison, and Jefferson strongly supporting state/church separation. 

This caricature of right-wing beliefs leads some to disdain any talk about religion. We will get references to fantasy people in the sky or some such thing. 

A pending case reflects one single-minded view. A Catholic organization wants an exception to an LGBTQ equality provision. Another lawsuit involves a hospice that claims a religious exemption from a trans equality provision. 

I find such litigation selfish. Not all Catholics believe in this anti-LGBTQ doctrine. Regardless, if you want to take part in public affairs, including public welfare services, it is not outrageous that basic equality has to be followed. 

Is this what you want to worry about when providing hospice care to people? Not allowing them rooms in their self-designated genders? Will you only provide them care if they pray to Jesus Christ, too? How shallow a Christian you are. 

(Catholic nuns don't use birth control.* That is b.s., too. The concern has to be the employees. 

Some janitors at a school can't have birth control, even if it is their own employment-based health care. Some sisters realize that it is moronic.)

Last month, Meenu Batra, 53, who has lived in the South Texas border colonia of Laguna Heights since 2002, was on her way to Milwaukee, Wisconsin, to work another case. She’s been a court interpreter for over 20 years, the only one licensed in Texas for Hindi, Punjabi, or Urdu. Her language skills are requested nationwide, where she’s contracted to help people making their way through the immigration court system, just as she did for herself 35 years ago when she immigrated from India to New Jersey before settling in Texas.

I think this is probably a more troublesome threat to religious liberty. Such a translator is likely used by Hindus and other minority faiths partially to obtain religious services. 

Respect for immigrants is generally a religious obligation in many faiths. Some people do oppose anti-immigration policies, especially those of a Trumpian nature, on religious grounds.

Is the presence of "woke" religions a "big lie," too? 

==

Note: Maybe some Catholic nuns do use birth control. Some gay priests are sexually active. 

The "birth control" also sometimes has other health uses. I'm not sure how much that comes up with Catholic nuns. I assume they are not deemed "sluts" if they use it for non-contraceptive reasons. 

Braving the Truth

 

Rachel Held Evans died in 2019. Multiple additional books, including this collection of essays (with additional commentary by others), followed. I talk about it here and here. With additional Trump b.s. 

SCOTUS Watch: Order List [And Other Stuff]

The Supreme Court handed down a short Order List before going on a little mid-April break. One grant:

Issue: Whether the Veterans’ Judicial Review Act stripped district courts of the jurisdiction, recognized by this court in Johnson v. Robison, to hear challenges to the constitutionality of acts of Congress affecting veterans’ benefits.

A bit of lay-up since both sides agreed they should take the case. The solicitor general also argued that the court below was correct. He also suggested the plaintiff sued the wrong person, helping to explain the curious "U.S. Congress" part of this case. 

Meanwhile, among the orders is one in which Gorsuch did not take part. Only Kagan and Jackson explain themselves when such a recusal happens. They are right to do so. 

Again, nothing is scheduled until next week, on Friday (conference/non-argument session, likely to swear in people), but something might come up. 

Steve Bannon

SCOTUSBlog provides more details that show that even a brief, bland-looking Order List can have some interesting details. More Trump news, too:

The justices also sent the case of Stephen Bannon, a former adviser to President Donald Trump who was convicted of contempt of Congress, back to the lower court, where the Department of Justice has filed a motion to dismiss his indictment.

Bannon served his brief sentence. This has a symbolic quality. After an extended -- ridiculously so -- process, which must be reformed, Bannon actually was punished for obstruction of Congress.

This, of course, has to be discouraged. I am being sarcastic. Anyway, this seems to have a gratuitous feel to it. The United States provided a brief reply that it was dismissing the indictment "in the interests of justice." Yes. Justice for Trump stooges.

They had the prosecutorial discretion to do this, though in this case, it is horribly applied. Once they do so, the argument is made that the procedure applied here in this order is appropriate. 

Iowa decided to supply an amicus as part of its Republican/Trump support role. It is laughable that Iowa felt it necessary to get involved here. 

The procedural move here does not appear improper. The ultimate problem is that Trump yet again finds a way to remove even the bare minimum justice for the past wrongs he and his minions inflicted. 

I'm open to being proven wrong. It does seem wrong that the Justice Department can step in at this point. But if the prosecution was actually improper, a later action of this sort might be sensible. 

So, again, it does seem like it turns on discretion. 

ETA: On the odds and ends front, some more rules (Appellate/Bankruptcy/Evidence) were released. 

SCOTUS doesn't intervene in an election dispute. Sounds like a blatant case, even if you don't like the law. Might have line drawing issues. Easy case here.

I say more here including about Sotomayor stuff. 

SCOTUS Watch

Order List

The Supreme Court on Monday agreed to weigh in on a procedural question arising from a pregnancy discrimination case – specifically, whether a defendant can raise an affirmative defense (that is, a legal excuse or justification) later in the proceedings when it did not raise that defense in the answer to the plaintiff’s complaint.

After a brief order list, Sotomayor (with Jackson) spends some time explaining why the justices should have taken a criminal justice case. Finding troubling criminal justice cases that suggest the arbitrary nature of the criminal justice system is her thing.  

(The opening link provides more details) 

Opinions 

Happy Trans Visibility Day, which once was allegedly an anti-Easter plot or something, since it coincidentally overlapped that year. By chance, the justices decided the conversion therapy case.

Justice Gorsuch, having the opinion (which, like multiple other opinions he had in cultural war cases, was procedurally dubious), was a bad sign. Worse, only Jackson dissented. It was a good dissent. 

(Jackson used a Calvinball ruling -- see Breyer's angry dissent -- to her benefit. Okay. But realistically, that is how it is going to be. Selective application.) 

The conservatives upheld anti-trans care policies, even though such policies clearly have ideological motivations. This time, when trans people are protected, the regulation is suddenly thought control.

The law involves the regulation of people with a state license to practice medicine and only covers minors. So, it is not about the conversion therapy of adults or therapy by unlicensed people, including clergy. 

Under this logic, any medical treatment delivered through words rather than instruments could now carry First Amendment protection—a framework that could shield a doctor who encourages a patient to commit suicide, a dietician who tells an anorexic patient to eat less, or a therapist who deliberately steers a vulnerable client away from life-saving treatment. It could also extend well beyond medicine: a financial advisor who talks an elderly client into a bad investment is exercising speech-based professional conduct, as is a lawyer who gives harmful legal advice.

Not good. Kagan (with Sotomayor) concurred in full, citing an alleged limitation. But, as Jackson noted, the limitation in context is fictional. If they concurred strategically, Gorsuch's language is far from restrained.

The opinion says strict scrutiny is required. Some misleading coverage aside, the Court did not strike down the law. Colorado has a higher test to meet. 

But that is usually an uphill battle. Gorsuch's rhetoric, as SCOTUSBlog flags, is also not reassuring:

But the Supreme Court also strongly hinted that the ban would fail that test. In his 23-page opinion, Gorsuch stressed that in cases like Chiles’, Colorado’s ban “censors speech based on viewpoint.” Because the First Amendment “reflects … a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth,” Gorsuch continued, “any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments.”

The possible Robert Kennedy Jr.-ing of medical care is not ideal. I say that even if the opinion leaves open a way to uphold this law (strict scrutiny met) or to craft another policy that will protect children. 

Kagan, in the past, disliked "Lochner-ing" or the weaponizing of the First Amendment. Blah. 

Upcoming

The conference was on Thursday, given the Easter weekend. Monday will be an Order List. They then take a two-week break until April 17th. 

A media advisory regarding an oral argument that will likely have more demand for sitting flags the change at the top of Homeland Security. 

(ETA: The SCOTUS PIO released a statement on a news story involving Alito going to get checked out -- he is in his 70s, so this wasn't that notable on its own -- but didn't post it on the website. Yet again.)

Birthright Citizenship Trivia

Trump showed up for the birthright citizenship oral argument (left after the solicitor general was done), which would be the first time a sitting president did so. Notably, he picked this case to do so.

Talk about this being an "attempt to intimidate the justices" seems a tad overblown. Separation of powers? Eh. Members of Congress show up. 

Nixon and John Quincy Adams argued cases. Lincoln, too (a more forgotten detail). Not while in office, of course. Taft became Chief Justice. Ditto. 

John Marshall served as Secretary of State briefly after becoming Chief Justice. The Constitution does not -- unlike for members of Congress -- clearly ban that sort of thing. Justices also served in diplomatic roles. Robert Jackson was a prosecutor at Nuremberg.

More Illegal Boat Strikes

The ongoing illegal monstrosity that the Republican Congress is just letting Trump unconstitutionally carry out in Iran should not lead us to forget other things.

A U.S. military strike on a vessel suspected [SUSPECTED!] of hauling drugs prompted the rescue of a sole survivor, the second known instance of a successful recovery in a campaign that has killed dozens of people.

U.S. forces struck a “low profile” vessel Thursday in the Eastern Pacific transiting a common smuggling route, according to a post on social media by U.S. Southern Command, which oversees the ongoing boat strike campaign against alleged smugglers in Latin America. The strike was the 46th since early September, officials said, totaling 159 people killed.

This is still going on. 159 people killed. Murdered.

RIP Robert Mueller

Robert Mueller, an honorable public servant, has died. The usual comments and responses will now come.

Trump metaphorically pissing on his grave is understandable. Some of the comments? Understandable but depressing.

People had some fantasy vision of "Mueller Time," regarding a Sessions Justice Department (Trump 1.0) appointment, who was acting within the limits of that role. This includes not indicting sitting presidents.

[Trump was very concerned behind the scenes that the investigation would screw him over. It would end his presidency! The crybaby eventually realized how much the system was stacked in his favor.] 

OTOH, can you imagine someone like him being appointed now and Pam Bondi recusing herself?

He still offered a "roadmap" of sorts. He didn't have to do so. It was the responsibility of others, not taken, to carry things through. This includes a report that provided repeated evidence of wrongdoing, including the Trump campaign (family members like Kushner, too) engaging with Russian agents. 

These actions were consistent with President Trump’s previous invitations of foreign interference in United States elections.

[First impeachment.]

Impeachment managers repeatedly warned us about what Trump would do if you didn't stop him. People have this fantasy image of "daddy" saving us, when they are not sneering at the idea of relying on them.

Mueller honorably served, including leading an investigation akin to that of Jack Smith. Smith, to be clear, investigated a former president. He had more discretion to prosecute, as well as having more serious crimes to use to do so. 

OTOH, when Trump was re-elected, to the shame of "We the People," Jack Smith knew the game was up. 

The video is when celebrities reenacted the Mueller Report. Powerful stuff. RIP and don't join with Trump pissing on his grave. Thanks. 

SCOTUS Watch

More Trump News 

Steve Vladeck in his weekly SCOTUS Substack:

I wanted to use today’s “Long Read” to bring folks up to speed on the series of ongoing cases involving efforts by the Department of Homeland Security to revoke “Temporary Protected Status” (TPS) on a country-by-country basis for hundreds of thousands of immigrants from Haiti, Syria, Venezuela, and elsewhere—two of which have reached the Supreme Court through the Trump administration’s 33rd and 34th emergency applications. 

(He also references the racism involved.) 

SCOTUS took the matter for review later in the day. The oral argument will be in late April. 

Eugenio Suárez’s hit in the top of the ninth later in the week provided the deciding run to allow Venezuela to win the World Baseball Classic over the United States. He earlier spoke out about how immigrant baseball players worry about current policies. He noted a family member lost TPS status. 

Another Execution 

It also rejected a final appeal in a capital case.

Michael Lee King, 54, is scheduled to receive a three-drug injection starting at 6 p.m. at Florida State Prison near Starke. King was sentenced to death in 2009 after being convicted of first-degree murder, sexual battery, and kidnapping.

(The death sentence is not patently outrageous. The system can be arbitrary and overall, not helpful to the public welfare, without each and every case being similarly bad.) 

Florida apparently is moving on to executing one or more people who haven't been on death row for over twenty years. The final appeal basically addressed red flags regarding the state's lethal injection procedures. 

Sotomayor recently referenced the matter. She didn't comment this time, but there is a comparable reason why a SCOTUS stay of execution is questionable without erasing the problems with the procedures.  

Chief Justice Roberts Speaks Out

"The problem sometimes is that the criticism can move from a focus on legal analysis to personalities. And you see from all over, I mean, not just any one political perspective on it, that it's more directed in a personal way, and that, frankly, can be actually quite dangerous," Roberts said.

I saw people respond with an expletive. It's understandable. First, it sounds like he is upset about the justices being criticized. Second, the conservative justices were hoisted on their own petard by enabling Trump. And, yes, his criticism is specifically at issue. 

Trump repeatedly, in personal ways, attacked judges for ruling against him. The problem also arose during his civil and criminal trials. Judges repeatedly criticized him or even sanctioned him for crossing the line. He is back to using such rhetoric to attack judges for the 2020 elections. We know how that went. 

There has been a dangerous uptick in harassment of judges. People send pizzas to their homes in the name of a murdered son of a judge. Judges get harassing phone calls. A few judges in the past were physically attacked or even killed. 

Strong criticism is part of the program. Some will be fair, some unfair. But, especially when people like Trump (or other members of the government) attack judges personally, sometimes targeting other people along the way (family members, prosecutors, etc.), a line begins to be crossed. The unjust delegitimizing of the court system alone is a problem. It can get worse. 

A new article flagged some lower court judges addressing the problem. It notes that the pizza thing might have, in some sense, been a foreign job. 

I didn't catch that aspect before. It should be carefully checked out. It surely would not be the only attempt at foreign interference with our institutions. 

Another way to look at this is to examine a major reason lower court judges have received some strong criticism. Conservative justices have, at times, with little or no explanation, overturned their rulings. 

This effectively is a big "fu" to lower court judges, who regularly are just doing their jobs, provided extended explanations when doing so. The judges come off as "judicial activists" who deserve strong criticism. As the article notes, "thanks a lot, John."

When you flag this, some people think you are just making it about Trump. He obviously has significant influence and has used it in unhinged ways. 

But it isn't just him. So "what about Schumer" won't be much of a comeback. Put aside his comments and influence simply are not comparable. If you can find something bad liberals say, fine. 

We need to protect our institutions. This should not be a partisan issue. Too often, it seems that it is. 

Justice O'Connor

There was a special event on Thursday to honor Justice O'Connor. The Supreme Court website provided a rare livestream video link. 

There were two parts. There was a bar event, and then they had a special court session. The livestream only covered the first part. A ceremonial occasion would be an ideal situation to provide SCOTUS video. 

Some documentary materials were supplied, including an extended biographic statement. O'Connor was a moderate conservative from another age. 

Her role in Bush v. Gore for some is disqualifying. But she's no Justice Alito. She was, as noted, a reasonable conservative who carefully and pragmatically (influenced by her legislative experience) applied the law. She also supported civics education, making it her focus after leaving the Court.  

Opinions

The justices were back for opinions and a conference on Friday. There will be oral arguments next week.

They handed down a single opinion, by Kagan, which unanimously allowed someone to sue to protect his free speech rights. The person feared future prosecution. The case is not about damages.

Kagan handles things, tossing in some Kagan-esque colloquial "let's chat about this" phrasings (e.g., "For anyone who has followed along this far") quickly in a Roberts Court special. It's a good, limited opinion. 

(Robert Court specials unite the justices, often with short opinions, by opinions of limited reach that avoid divisive questions. Sometimes, they clearly paper over certain disputes, the seams at times fairly blatant.) 

Other Stuff 

The Court also dropped a housekeeping order. 

They will hear oral arguments next week after dropping an Order List on Monday.