SCOTUS Watch: First Opinion Day

The first opinion day of the week (yesterday) disposed of five cases, all somewhat also-rans. The opinions largely broke down 6-3. 

The oral argument didn't bode well for a prisoner trying to obtain damages against state prison officials for violating his religious liberty. The reason was not that the conservative justices only care about Christians. 

Holt v. Hobbs, for instance, protected the rights of a Muslim prisoner. The justices do somewhat selectively care about religious liberty. Nonetheless, the reason for the opinion here is likely somewhat different. Wrong all the same. 

Kagan and Jackson joined the result in a case about the Alien Tort Statute (the trend has been limited protections), but joined much of Sotomayor's dissent on why the majority went too far. 

The liberals fully disagreed with the conservatives in an immigration case. Thomas for the conservatives.

The one kumbaya moment was an overreach of a case involving the Takings Clause. Fair market value is fair enough when the government sells a property in a tax sale, as long as the whole thing is otherwise fair. 

Some libertarians might be upset, but I looked into the details (did so in response to an early response to this guy), and this was no great travesty or anything.  This is the case that it's okay to give to Alito. 

There will be more pain for the liberal side of things (and more hot-button cases) in the upcoming days. 

Supreme Court Order List

Today's Order List was a bit long since the justices tossed back a death penalty case (7-2) because the lower court wrongly took into consideration evidence the jury didn't see. They granted a case first sought by a pro se prisoner. Also, the "bill of complaint" issue (two views) came up again. I basically agree with Michael Dorf. 

"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.

SCOTUS Order List

The weekly Order List had some interesting bits.

The justices decided the appeals court wrongly decided on procedural grounds a lawsuit involving the free speech rights of immigration judges (not Art. III judges). Thomas (with Barrett) also disagreed on the merits. Free speech fails, for now. 

[The backstory is that the administrative process was broken because of Trump's obstructionism. Helped b by the court conservatives. The lower court tried a workaround and was called out.] 

The justices, following standard practices since at least the 1970s, rejected even accepting a "bill of complaint" involving a dispute among states. 

Thomas (with Alito) took their usual stance (reasonable) that they should at least examine the merits. They also added some right-wing comments on the merits of a dispute involving undocumented people having driver's licenses. 

Kavanaugh would have taken a dispute involving arbitration (New York Football Giants v. Brian Flores). He didn't comment on why. 

Alito and Thomas would have summarily reversed a lower court opinion involving excessive force and the Fourth Amendment. They cited a lower court opinion they "essentially" agreed with. 

Alito (no comment), Kagan, and Jackson (referencing ethical guidelines) did not take part in deciding three cases.  I continue to prefer the latter approach. 

Finally, in a "to be continued" sort of way, a lower court continued to reject a redistricting map, holding it is racially discriminatory. The Supreme Court, with the liberals dissenting, sent it back. 

It is likely to come back.  

==

Meanwhile, this is an interesting discussion of the Supreme Court's relation with social media, including suggestions on how it can dip its toes in.

ETA/Opinions: 

Barrett, for the conservatives, ruled against two "compassionate release" claims. Sotomayor (with Kagan) concurred on limited grounds in one case, dissented in the other. Jackson dissented in both.

Kavanaugh, it being one of his concerns, wrote a 5-4 opinion supporting a claim alleging racial discrimination in jury selection. Roberts joined, as did the liberals. Gorsuch dissented for the rest.

Gorsuch wrote a brief (less than eight pages) and unanimous arbitration opinion.  

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.

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. 

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.

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. 

SCOTUS Watch

Order List

Sotomayor (with Jackson) dissented from a denial regarding a case about prisoners having the right to split a filing fee. Kagan would have taken the case but did not join. Takes four to grant cert. 

We then went into an oral argument involving guns and drugs. Eric Segall has a good commentary. And then the long oral argument was done. 

But not the news for the day. 

"Emergency" Docket

Steve Vladeck and Chris Geidner discussed two irregular decisions involving a New York City redistricting matter and requiring a school to tell parents their children were using alternative pronouns and so forth. They are the usual 6-3 jobs with Sotomayor and Kagan handling dissents. 

Rick Hasen briefly raises red flags about the New York case. The problem there is procedural. Only Alito writes for the conservatives. But he might have an opinion for the Court in an election case soon. That one will matter. 

The case page provides the state brief in the trans case, which details various complexities that some skip over since they think the policy is wrong. Erin Reed puts things into a wider context. She covers trans issues. And the SCOTUS conservatives have, over and over again, shown disdain for trans rights. 

(The exception being the Bostock case, a statutory interpretation case that is an asterisk without more.) 

Overall, Kagan is correct. First, they should have taken it for full review. Second, they are hypocrites regarding substantive due process, including not taking a case where trans parents raised such claims in support of their children's transitioning. 

Vladeck flags that the majority -- unsigned though Barrett with Roberts and Kavanaugh concur separately, with a few comments about Dobbs, the abortion case -- rushes through the balancing required in granting the request. 

Okay, they did it, as he says, but they did it slipshod, including not being concerned about the interests of the students. For instance, even if you think the parents have a good case, the district court's order appears to be too broad. 

Ideally, parents, children, and schools should be on the same page. But things are not always ideal. Forced outing, against the will of the children, is bad too. 

A 6-3 "emergency" docket opinion is not the way to handle this situation. But, as Vladeck says, the conservatives are (selectively) impatient. 

Billy Leon Kearse Execution

Florida, after SCOTUS dropped a no comment order, executed another person on Tuesday.

Kearse murdered a police officer about thirty-five years ago. Murdering a police officer is one of those narrow classes of cases of particular heinousness. But it was 35 years ago. Too long.

And, even there, only a narrow majority below rejected claims that a death sentence was improper. He was 18 and had serious intellectual disability claims. 

The final appeal raised procedural arguments, including those involving the disability, which were probably rightly rejected in this posture. Still, even here, I wish they would briefly explain the ruling.

I continue to find these executions gratuitous and otherwise problematic without being APPALLED each and every time. 

Opinions

Wednesday was a scheduled opinion day, though the two unscheduled rulings took some attention off that. Regularly, SCOTUS does things off schedule.

Jackson (standard used in an immigration case) and Sotomayor (NJ Transit Corporation is not an arm of New Jersey, so no sovereign immunity) with unanimous opinions. SCOTUSblog had a live blog.

Upcoming

Another Order List is scheduled for Monday. There will be a two-week break before more oral arguments. 

No opinion days are scheduled, but as we have seen, unexpected news might arise at any time. For instance, two years ago, the Supreme Court announced over the weekend that there would be an opinion dropped, without them showing up (cowards). 

The Supreme Court does not usually announce news on the weekend. But this was a special case. It was the Trump v. Anderson opinion keeping him on the ballot. 

War With Iran

Dorf on Law has two good entries on how the war (sic) with Iran is illegal. I have my upfront .02. Stephen Colbert was great last night, too, covering it, both his monologue and first guest.

Rubio's European Address

Secretary of State Marco Rubio and German Chancellor Friedrich Merz shake hands at the Munich Security Conference earlier this month. 

Rubio's speech received some attention. The link (The Guardian) acknowledges he was reasonable as compared to Vice President James David Vance's speech last year. OTOH, they have different purposes.

Rubio provides the patina of reasonableness. Vance is full-fledged MAGA. This is a matter of degree.

Rubio’s speech was more subtle and coherent, but he in essence sang from the same hymn sheet: the message from Washington remains that Europe and the US should be defined by ethno-political values of culture, tradition and religion. 

The fact that such history has also bred nationalism, racism, fascism and colonialism is apparently nothing to be ashamed of.

The Freedom From Religion Foundation focuses on the so-called common religion tradition angle. 

“We are part of one civilization — Western civilization,” he claimed. “We are bound to one another by the deepest bonds that nations could share, forged by centuries of shared history, Christian faith, culture, heritage, language, ancestry and the sacrifices our forefathers made together for the common civilization to which we have fallen heir.”

Christian Nationalism was more blatantly expressed during the National Prayer Breakfast. 

Trump’s religious adviser Paula White-Cain introduced the U.S. president as “the greatest champion of faith that we have ever had in the executive branch,” claiming he has “brought religion back to this nation and beyond.”

Trump then mixed politics and religion, including denouncing Democrats as un-Christian. 

The baggage involved in these events has led many Democrats who otherwise support the concept to be wary about the whole thing. FFRF and others have covered this over the years.

Lawfare, which leans center-right, also has a summary. For instance, there are such passages as "rules-based global order—an overused term."  

See also:

Under President Trump, the United States of America will once again take on the task of renewal and restoration, driven by a vision of a future as proud, as sovereign, and as vital as our civilization’s past. And while we are prepared, if necessary, to do this alone, it is our preference and it is our hope to do this together with you, our friends here in Europe. 

The "renewal and restoration" talk is basic "Make America Great Again" rhetoric. 

Rubio is sending the message that America is supporting authoritarians (darn rules!) like in Hungary that promote that message. And the U.S. (and other nations willing to go along shouldn't feel bound to those rules in doing so either. 

Also, Trump's overall immigration policy is furthered by this passage:

“in a pursuit of a world without borders, we opened our doors to an unprecedented wave of mass migration that threatens the cohesion of our societies, the continuity of our culture, and the future of our people.” 

The Lawfare summary ends with a brief translation of the speech, including the non-Vance tone:

But all of that is rude to say. And it makes us look bad. And it makes you all worry. So let’s collectively indulge the polite fiction that we have more in common than we do. Let’s overstate a shared history. Let’s pretend we agree on shared challenges. And let’s pretend I’m not saying that the basis for our future cooperation is that you submit to our will. The first step in this regard is that I flatter you. The second step is that you applaud for me. And then I will fly home.

Many Democratic senators have had buyer's remorse for going along with the unanimous confirmation of this guy. Rubio was supposedly a reasonable guy, unlike the Secretary of Defense or Health and Human Services. 

Maybe on some sort of curve. Still, how surprising is it that Rubio is going along with Trump's policies without much serious pushback? Nothing in his past suggests the guy has some sort of spine. He would be a loyal soldier. Plus, even in a vacuum, Rubio had issues.

Now, he is the Secretary of State in the Trump Administration. Yes, we can have worse. 

OTOH, with people like Trump's former real estate lawyer and the Boy Wonder (Kushner, who always looks damn creepy in photographs) travelling the world and doing foreign policy, it is unclear how much better things are now.  

And his Munich speech suggests what is what as well.

===

Meanwhile: Mets lost their ST opener 2-1. Some nobody gave up an unearned run for the loss. 

Odds and Ends

SCOTUS is on its mid-winter break. 

It released its March argument schedule, which includes April 1 (birthright citizenship). See also, some of the anti-BC briefs.

==

Today's Groundhog's Day and this is Black History Month. I briefly talk about that here with further links with more info.

==

I watched Ted Lasso (first five episodes) on DVD around five years after most people. It does have charms, especially such a positive lead, which we need in these times. 

The two primary women (owner and girlfriend of a player) characters are well played. There are so many shows these days on so many platforms of which I see nearly none.  

Interesting book with four flawed individuals.

Someone responded to a post about an anniversary of the 18th Amendment with a "what a bunch of morons" sentiment. That's a somewhat cheap shot. 

Trump Has to Go (Venezeula)

 

My congressional representative (not AOC) has a good statement. More from me here and here. The rule of law = Trump has to go.  

Shadow Docket News

Immigration judges are not Art. III judges. They do not have life tenure and have less independence. People in front of them have fewer rights. 

They challenged a limit on speaking engagements. The Trump Administration brought a request for the Supreme Court to intervene, even though the win was limited and only involved sending things back for more factfinding. 

In a limited bit of sanity on the shadow docket (sorry, SCOTUSblog; not the "interim" docket), the Supreme Court for now determined not to do so. It shouldn't be that notable, especially given the factual complexities involved. More at that link. 

But that's where we are at. The Shadow Docket Act tries to address the situation. It would require an explanation, and on the on-the-record vote count in certain cases. Not across the board. 

Justice Alito would likely find that demand an unconstitutional invasion of the separation of powers. OTOH, Art. III allows Congress to regulate the Supreme Court's appellate jurisdiction. The bill specifically does not cover original jurisdiction (interstate disputes over water rights, etc.). 

It is a "message bill" at the moment and fine on that level. Democrats (with Republicans willing to join them) should put forth markers that underline their long-term goals. A bill like this provides the neutral reforms that have wider support. 

Meanwhile, there are no more scheduled events for the justices until early January, but miscellaneous orders might pop up before then. Oh joy! 

National Security Strategy (Trump)

The new National Security Strategy promotes the idea that Western Europe is a problem, and authoritarianism is not a problem. It is a "are we the baddies?" document. More here. 

SCOTUS Watch

The justices heard oral (yawn) arguments, acted like hacks on the shadow docket (6-3, Texas redistricting) again, and took up birthright citizenship. Among other things. I cover it at my Substack. 

World AIDS Day

World AIDS Day is a global movement to unite people in the fight against HIV and AIDS. Since 1988, communities have stood together on World AIDS Day to show strength and solidarity against HIV stigma and to remember lives lost.

The Trump Administration is not a big fan:

The State Department issued a terse statement last week saying, "an awareness day is not a strategy."

The result is that on December 1, the United States is not commemorating World AIDS Day. It's the first time the U.S. has not participated since the World Health Organization created this day in 1988 to remember the millions of people who have died of AIDS-related illnesses and recommit to fighting the epidemic that still claims the lives of more than half a million people each year.

The move is typical:

The decision not to mark World AIDS Day is in line with the administration's broader approach to WHO and the United Nations more broadly. Trump has been critical of multilateral organizations like the U.N. and of WHO's handling of COVID. One of his first moves, on inauguration day, was to start the process of removing the U.S. from the WHO. 

However, the Trump Administration has marked other days designated by the UN, such as World Autism Awareness Day. The White House issued a proclamation for that day.

It is not totally off limits:

Employees and grantees may still “tout the work” being done through various programs “to counter this dangerous disease and other infectious diseases around the world,” the email said. And they may attend events related to the commemoration.

But they should “refrain from publicly promoting World AIDS Day through any communication channels, including social media, media engagements, speeches or other public-facing messaging.”

Chris Geidner has more. 

Trump's Thanksgiving Messages

Two National Guard members, who shouldn't have been in harm's way,* were shot in D.C. Army Specialist Sarah Beckstrom, 20, has died. Or, as the NYT dubiously phrased it, "succumbed to her wounds."  

(Air Force Staff Sgt. Andrew Wolfe, 24, remained in critical condition on Thursday after undergoing surgery.)  

Of course, Trump and company exploited this. First, more troops will be sent, which is akin to filling a hole by digging deeper. Second, it was used for by now mundanely horrible attacks on ("Third World") immigrants. 

Trump's comments on Thanksgiving included calling Gov. Tim Walz (who has a disabled son) "seriously retarded.") and crude attacks on the cultural/religious garb of a member of Congress (no kewpie doll for correctly citing the person).

His attack on "anti-American" types is rather ironic. Trump's official Thanksgiving message had the not ideal mix of religious and partisan messaging. 

His secondary message is much worse, including the usual unhinged references to the "Autopen approval process." Where's the 25th Amendment when you need it? 

The suspect is "an Afghan man who once served in an anti-Taliban force supported by the C.I.A." (to quote a NYT article). See also this report on how veterans are disproportionately on death row. 

Trump blamed Biden for the suspect obtaining refugee status, though he came here this year during the Trump Administration. The fact that President Biden provided refuge for "anti-Taliban forces supported by the C.I.A.," generally speaking, is "duh" territory. 

(Surely, any refugee program should have some safeguards. But now that we have Trump in power, surely, that will be covered too, correct?)

Trump's conveniently on-brand anti-certain-immigrants response to a special type of refugee/immigrant is a problem even without all the other baggage involved in the message. The ability to obtain the support of other nations when we need it will meanwhile be made that much harder. 

Anyway, I look forward to his Christmas Message, which will surely make King Herod (whose physical and mental state near the end was iffy) proud.

(Portrayed by Antonio Banderas in Journey to Jerusalem, a musical version of the Nativity Story.)

Some will continue to say "I voted for this." Others who did will be concerned while their Republican representatives do little or nothing in response. 

I understand those who see a possible light at the end of the tunnel, including the 2026 elections. But, at risk of violating Godwin's Law (which is not violated when the reference is correctly applied), the Germans continued to cause damage until May 1945.

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Note: Chris Geidner, the author of that discussion, resides in D.C. He did not use the term "jackbooted thugs," which some might recall from back in the day.

His concern about not needlessly placing civil or military personnel in harm's way, however, does have a broad application. The same applies to the use of force overall, which sometimes will result in needless tragedy. Conservatives and libertarians, somewhat selectively, are concerned with such things.  

Trump DOGE and Foreign Policy Follies

Paul Krugman's discussion on the privacy invasion involved with DOGE (remain that?) reminds me of a 1970s Supreme Court opinion that upheld a regulation of prescription drugs. 

The opinion has helpful dicta spelling out the contours of the right to privacy. It noted:

A final word about issues we have not decided. We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. [Footnote 34] 

The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. 

The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. 

Recognizing that, in some circumstances, that duty arguably has its roots in the Constitution, nevertheless New York's statutory scheme, and its implementing administrative procedures, evidence a proper concern with, and protection of, the individual's interest in privacy. 

We therefore need not, and do not, decide any question which might be presented by the unwarranted disclosure.

[Paragraph breaks added.]

DOGE had other problems, including the horrible effects of the stripping of foreign aid, which led to a "legacy of death." More State Department news:

State Department Human Rights Reports Will Have Changed Focus

One article cited provides a taste:

The Trump administration is overhauling the State Department’s annual reports on global human rights, emphasizing entitlements “given to us by God, our creator” and issuing new guidance for U.S. diplomats to scrutinize the prevalence of abortion and gender-transition surgery among children.

We are told that the Trumpies provided an "unapologetically U.S.-centric and religiously tinged view of human rights." "U.S.-centric" here is akin to "value voters" in 2004 or often "Christian" today -- it means "a certain breed of conservative." 

For instance, the inability to obtain trans care and abortion services is not likely to get similar scrutiny. On some level, different administrations are likely to have different values here. Still, it's useful to not use supposedly neutral terms that are applied selectively. 

The general idea that this administration can be trusted with human rights has a feel of entrusting foxes with the rights of chickens. Happy Early Thanksgiving. 

SCOTUS Watch: Order List

Monday's Order List (no more oral arguments until December) had a few interesting tidbits.

In the most common types of habeas corpus proceedings in the United States federal courts, a certificate of appealability is a legal document that must be issued before a petitioner may appeal from a denial of the writ. The certificate may only be issued when the petitioner has made a "substantial showing of the denial of a constitutional right".

There were the usual housekeeping orders, which made some go "hmm." For instance, only those with knowledge of some inside baseball know what a "certificate of appealability" entails. Where is that Orders FAQ page?

The justices granted one case involving asylum seekers. The SCOTUSblog summary references "aliens," though the lower court opinion uses the more and more standard "noncitizens." 

I would have granted certiorari to terminate the longstanding and unlawful prison-building order at the center of this case. In 2019, the District Court ordered New Orleans to construct a new facility for inmates with mental health needs. 

Alito (with Thomas) had a short dissent from denial regarding a case; the federal government had to be pushed to provide a response to the challenge. Gorsuch would have granted, though he did not join the dissent. It turns on procedural matters.

The facts harken back (going by the briefing) to at least 2013. The new facility was only two-thirds complete as of July 2025. The case is out of the Fifth Circuit, and the usual conservative suspects (including Judge Ho) dissented below.  

The Trump Administration, however, did not deem it certworthy. A tad bit telling as compared to Justice Alito arguing it is compelled by the Prison Litigation Reform Act of 1995 (limiting lawsuits) and so on.

==

More about that case involving a major human rights judgment against Ferdinand Marcos, where Sotomayor on Friday rejected a stay request. 

Steven Vladeck, in his Substack today, also suggested the request for a stay could have at least partially been raised to put the government on the record (see Sotomayor's final order).  

Upcoming

There is a non-argument session scheduled on Friday. These are usually used to swear people to the Supreme Court Bar. Vladeck notes there is a small chance it will be used to dispose of an easy case.

An execution is also scheduled on Thursday. 

Some miscellaneous orders might drop. The next scheduled Order Day is next Monday. That closes the official events scheduled for November.