SCOTUS Watch: Orders

The Order List was longer than usual. So, we had additional writings, particularly an apparent 6-3 per curiam, summarized by Mark Joseph Stern on Bluesky this way:

By a 6–3 vote, the Supreme Court reverses a decision in favor of Pedro Hernandez, a mentally impaired man who was pressured into an allegedly false confession of murder through these👇unconstitutional tactics. The supermajority says he did not face a deprivation of "clearly established" rights.

The liberals wouldn't have taken the case. It amounts to an "error correction" of an allegedly misapplication of the rules for federal habeas appeals. Some local coverage. 

Alito and Thomas would have taken or decided some crime-related cases (one involving the use of race) the other way. 

Jackson followed her practice regarding not rejecting certain appeals by incarcerated people allegedly abusing the pauper's petition rules. 

Sotomayor, for the liberals, would have taken a case involving a claim of intellectual disability in a capital case. Texas supported the appeal, but the Texas courts (this happened before) blocked it from happening below. Four justices earlier would have tightened the rules in such cases, so this isn't surprising. 

The Supreme Court granted another so-called "Bivens" case, involving a remedy for constitutionally based abuses. The claim won below, and Bivens has been much disfavored. So, it doesn't bode well. Congress can address the situation. 

We will have  (signed) opinions on Tuesday and Thursday. There is likely to be at least one more opinion day. Toss is a scheduled execution. 

Alabama Doesn't Executes Jeffrey Lee

Lee, who has been on death row for 25 years, was convicted of the 1998 murders of Jimmy Ellis and Elaine Thompson during a pawn shop robbery in Dallas County. He was also found guilty of the attempted murder of Helen King.

The death sentence and planned execution are problematic on multiple grounds, but only a few justices (at most) have agreed with the reasons.  

Twenty-five years is too long. Justice Breyer explained why. I will continue to cite his dissent. 

Sotomayor, for the liberals, flagged the problems with nitrogen gas. The others think "not enough."

An Alabama jury recommended 7-5 that he receive life without parole. A judge overrode them. 

The policy is no longer in place. The justices have rejected multiple appeals that flagged the problem. 

The jury, even without other potentially mitigating evidence, did not find him guilty enough to die. A double robbery/homicide clearly has aggravating circumstances. A majority of the jurors still thought he did not deserve to die.

The lower courts split one last time. The district court found some problems with nitrogen gas, but not enough. The court of appeals disagreed, sending it back to determine if a backup method (the firing squad) was available.* The state appealed. 

Steve Vladeck argued that the Supreme Court intervening, given the technical status of the case, would be particularly dubious. Hours after the execution was scheduled, the appeal was rejected. 

(I find it asinine that things work this way. That we have a finale on execution night. It is how it is set up. The state is partially to blame. It should change.) 

The machinery of death, with Thomas, Alito, and Gorsuch dissenting, was stopped. For now. 

I have argued that final refusals to intervene, even if hopeless appeals, should be at least minimally explained in death penalty cases. I think so here. 

Anyway, Jeffrey Lee shouldn't be executed. A majority of his jury said so. Too long ago. 

If he's executed, he shouldn't be executed by nitrogen gas. There is too much doubt. I know. Is the firing squad better? I guess? 

Maybe, just let's not execute him at all. Alabama hasn't for over twenty-five years. Why start now?

===

Note: The rules hold that if you challenge an execution method, you need to provide an alternative. 

Maybe, see Glossip v. Gross, things would be different if the state used crucifixion or something, but they haven't found any such method now exists.

So, the firing squad was chosen. Is it better? Some experts suggest that it is. People think it is barbaric. It sounds like it would be. But pain and suffering-wise, it very well might be the best approach.

Not free from botching, of course.  

Andrew Lukehart Execution

Andrew Lukehart, after previously being found guilty of child abuse, was sentenced to die by Florida for the death of a five-month-old child. He first made up a kidnapping story.

That was thirty years ago. Breyer explained why it is constitutionally and otherwise problematic to execute someone after all that time. Florida is making it a habit.

The first article suggests it is still somewhat unclear what exactly happened. Why did he murder the child? Child abuse, including lethal child abuse, arises for various reasons.

The crime is horrible, especially when you look at the picture of the child. The news article starts with a trigger warning. Still, thirty years in prison is a very serious punishment. 

The final appeal, rejected by the Supreme Court the day before without comment, was a standard red flag about Florida execution procedures. Old ground

It also added a novel argument that forcing him to choose an alternative means of execution (you must do so if you challenge the method) is a violation of his religious liberty. There is a federal statute protecting the religious liberty of prisoners. 

His execution doesn't provide much value, in my opinion, to the public welfare. Safeguarding children is precious. An arbitrary execution does little to advance it. 

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. 

Executions

There were three executions scheduled this week:

May 20 AZ Leroy McGill

May 21 TN Tony Carruthers

May 21 FL Richard Knight

Tony Carruthers is most troubling. 

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

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

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

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

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

Why? They botched it. See you in 2027?

==

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

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

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

Both were executed. 

==

The first case is particularly arbitrary. 

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

PUNT

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

(More next Thursday.) 

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

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

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

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

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

SCOTUS Watch

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

More VRA News 

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

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

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

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

Arguments 

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

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

Opinions 

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

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

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

Abortion Pill News

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

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

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

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

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

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

Busby Execution 

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

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

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

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

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

He was the 600th execution in Texas since 1982.

Upcoming

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

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: Sotomayor Dissents a Lot Edition

Order List

There was a long order list today. This implied an unsigned opinion and/or dissent. We had both. 

A brief, unsigned opinion (per curiam) held that a lower court incorrectly didn't provide qualified immunity in an excessive force case. The justices argued that precedent did not settle the question. The liberals disagreed.

Qualified immunity is a major concern. Congress can and should address the situation. Too often, even that ability to try is removed. 

This also should be disfavored from a historical point of view. Things have changed over time, so I don't just rely on that. But some judges allegedly rely on that a lot. Allowing juries to decide would also be democratic. Now, judges too often close things off.

Sotomayor had all three dissents. She also argued for the liberals that the justices should have taken a case involving DNA evidence in a capital case. 

DNA evidence isn't magic. The government fears people will demand DNA evidence, here perhaps tainted in some fashion, and too much will be made out of it. But DNA evidence can also be powerful. A possibly tainted execution is also a tiebreaker. 

A third case involving denial of cert of a case involving alleged retaliation against an online journalist was a solo effort. That case had some support from conservatives below (Judge Willett was cited). Sotomayor provides a sympathetic reading. She also flags an apparent circuit split, making it a helpful "vehicle" for SCOTUS review.  

I'm not an expert. I don't do "deep dives" in these cases. For instance, in the capital cases, arguments are flagged that might not hold up. 

I cannot tell you if she is right that the circuit split is "cert worthy." It is important to note that the Supreme Court is more than a "court of error correction." A circuit split is a major reason for taking a case. 

Sometimes, there is a case that troubles one or more justices on the facts. They might flag that the case is not "cert worthy" while still noting their concern. They might also note the case raises issues that the Supreme Court should take up in a different case.

Meanwhile, Alito and Gorsuch did not take part in cases addressed in the Order List. As usual, we don't have any official explanation for why. Only Kagan and Jackson do that. The others should join them.

Oral Argument

Some of the conservatives were on vibes during the oral argument regarding the regulation of mail-in voting. This time, some Republican Southern state defending their discretion to regulate had a more sympathetic hearing from the liberal side. 

Rick Hasen has more.

Upcoming

We should have one or more opinions on Wednesday.

ETA: Sotomayor also appeared to be on the dissenting side during the oral argument in an asylum case. 

Gorsuch had his first opinion (only Alito dissented). Thomas wrote a copyright opinion (Sotomayor concurred in the result with Jackson). 

... and we will have another opinion day next week.

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

There was a seven-page Order List on Monday. The Court granted one case for review. SCOTUSBlog:

In Prutehi Guahan, the justices will weigh in on a dispute that arises from the U.S. Air Force’s disposal of unexploded ordnance, which it burns or blows up, on a base in Guam. 

So notable concern, but based on technical issues:

Four years ago, Prutehi Guahan, an environmental group, went to federal court to challenge the Air Force’s then-pending application to renew its permit, granted to it by Guam’s Environmental Protection Agency under a federal law called the Resource Conservation and Recovery Act, for its disposal of ordnance. The group contended that before the Air Force submitted its application, it should have prepared an environmental impact statement, as required by a different federal law, the National Environmental Policy Act.

Kavanaugh didn't take part in deciding a case without saying why. Jackson dissented from a refusal to a motion based on an alleged abuse of the in forma pauperis policy, following her recent practice of doing so for incarcerated persons. 

Gorsuch dissents from a denial of cert. As Mark Joseph Stern (Slate) summarizes on Bluesky (noting his position received four votes in the past):

Gorsuch dissents from the Supreme Court's refusal to consider whether a judge (not a jury) can extend a person's prison sentence by finding, by a preponderance of evidence (not beyond a reasonable doubt), that he violated supervised release.

Charles Burton Doesn't Die

Charles Burton has been in prison for over thirty years for his involvement in a robbery/homicide. Burton is in his mid-70s and in a wheelchair. A final SCOTUS appeal (involving procedural issues) was pending. 

“I firmly believe that the death penalty is just punishment for society’s most heinous offenders, as shown by the 25 executions I have presided over as governor,” Ivey said in a statement on Tuesday. “In order to ensure the continued viability of the death penalty, however, I also believe that a government’s most consequential action must be administered fairly and proportionately.

Alabama's strongly conservative governor commuted his sentence to life. That's the right move, except that he should really be paroled. He is ailing and was not directly involved in the actual killing. He has already served more than enough for his crime. 

Burton wasn't even there when it happened. It was a particularly poor usage of the "felony murder rule."  I appreciate her principled pro-capital punishment statement. Yes, I can grant that.

Alabama has not had a great run in recent years executing people, especially respecting the procedure, which led them to shift to nitrogen gas. Give credit where it's due and all that, all the same. 

The victim's daughter opposed the execution. That happens, though some seem to think honoring the victims is a one-way ratchet. Still, executions are in the name of the public, not private parties. 

The actual killer was sentenced to death. His sentence was overturned on appeal. The government eventually sentenced him to LWOP. He died in prison.  

Burton's lawyers removed their final appeal as moot.

Cedric Ricks Execution

Cedric Ricks was sentenced to death for the May 2013 killings of 30-year-old Roxann Sanchez [girlfriend] and her son Anthony Figueroa at their apartment in Bedford, a suburb in the Dallas-Fort Worth area. Sanchez’s 12-year-old son, Marcus Figueroa, was injured during the attack.

His attorneys had asked the Supreme Court to stay his execution, arguing that prosecutors violated Ricks’ constitutional rights by eliminating potential jurors on the basis of race. 

Previous appeals by Ricks that alleged ineffective counsel and called for the suppression of evidence in the case have been denied.

A horrible domestic violence crime like this warrants serious punishment. It is not, in my view, the "worst of the worst" type murder that warrants the death penalty.

(Texas has executed a handful of people annually in recent years. It is a form of lottery to execute him.) 

One more death will not stop the cycle of violence involved. I don't know if the due process concerns flagged tainted the conviction. 

They probably are not "cert worthy" since they are most likely singular, not the special class warranting SCOTUS review. The justices should still not have denied without comment. 

Justice Joe would provide a brief statement explaining my denial, noting that the taking of a life (especially given my overall constitutional concern about the death penalty) warrants a special exception to the usual "no comment" cert denial policy. 

He was executed, providing an apology in his final statement. Media coverage continues to provide the public with information about such final moments. 

The almost thirteen-year lag time would have been notable back in the day. It's relatively quick, FWIW, as things go now. COVID probably helped add a few more years that might not have been there otherwise. 

Upcoming 

I noticed that a media advisory I missed flagged that there will be limited seating for the upcoming birthright citizenship oral argument. 

There is an execution scheduled on the 17th. There might be a final order to dispose of like the ones above.

The next scheduled thing is a special event honoring Justice O'Connor (next Thursday) with a livestream. Various Trump officials will take part. 

The justices will officially return next Friday. They probably (there is a notice they "may") will hand down one or more opinions. They will also have a conference to consider pending matters. 

Other News 

Oyez did not have last term's opinion announcements. 

The delay led Fix the Court to reach out and obtain them (in a raw form that is harder to access and contains other audio mixed in). 

Oyez now has (some) of the opinion announcements up. They are easier to access, but not complete yet. 

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. 

SCOTUS: More Opinions

Opinions

Two opinions dropped on Tuesday. 

[1]

Sotomayor handled a civil procedure case relatively quickly. It involved a dispute about allegedly tainted baby food. Thomas added a concurrence to flag yet another issue he is concerned about. 

[2]

Thomas had the majority in the second case regarding the limits of sovereign immunity in a case alleging race discrimination by the post office. 

Sotomayor, for the liberals, and Gorsuch (a limit on federal agencies of any type is his thing) dissented. She felt the woman had a right to sue. 

The facts make this a sympathetic case. The split shows the limits of textualism. On that general subject, Eric Segall has a good blog post. 

Congress can pass a new statute to clarify matters. This is often the case. Many cases involve statutory matters for which the legislature can tweak things. Congress might fail to do this (see tariffs), and in response, the courts increase in power.  

[3]

Kagan and Jackson wrote the Wednesday opinions. So, readers can expect things to go pretty well. Each was unanimous in result, with a few conservatives adding comments. A brief summary below.

Justice Jackson affirms the Texas Court of Criminal Appeals on the scope of the right to counsel during breaks in trials. Accepts some limits on counsel engaging with the defendant (as a witness), adding some clarifying details about the rules.  

[4]

Kagan has an opinion on whether a government contractor can immediately appeal an order rejecting its claim to sovereign immunity derived from its work for the government. They can't.

One of the many technical cases they take. Kagan often can write these opinions in at least a halfway understandable way.  

The case also has a topical connection. Appeals take a long time. The facts are now around ten years old. They involve facts alleging a contractor's work policies for detainees violate a federal bar on forced labor and Colorado’s prohibition on unjust enrichment.

Melvin Trotter Execution 

A crack addict named Melvin Trotter fatally stabbed 70-year-old Virgie Langford in the corner grocery store she ran for 50 years. Trotter has been on death row for nearly 40 years for the murder.

Colorful summary. His lawyers argued that the claim of "premeditation" is dubious when he seized a knife at the scene. That is a big reason why he got the death penalty. Even bad crimes might not warrant it. 

An organization against the death penalty argued:

Melvin’s death sentence was handed down by a non-unanimous jury on two separate occasions. Florida is one of the only states that allows a death sentence to be given without the full confidence of the jury, making it widely recognized as unreliable. Melvin’s life was shaped by severe trauma, instability, and intellectual limitations that were never meaningfully addressed in court.

The final appeal alleged problems with the Florida execution protocol. Sotomayor (for herself) dropped a statement "to express concern about Florida’s implementation of its execution protocol and the secrecy surrounding it." 

Sotomayor has been the justice most concerned about lethal injection protocols. She noted the claim alleged flagged problems like "incorrect drug doses, the use of nonprotocol drugs, and recordkeeping lapses that could mask yet additional failing."

She joined the "no comment" denial because there wasn't (in her view) enough evidence in this case. It is rare to see any discussion in these final appeals. 

I continue, like apparently no justice is left on the Court, to find it problematic to only execute someone decades after the conviction. Forty years on death row is punishment enough.

Florida executed him a few hours later. 

Opinion Announcements

We also have good news: Fix the Court managed to access last term's opinion announcements. They are (for now) in a harder-to-access form, but the effort is appreciated. It would be simpler if SCOTUS posted it themselves. They think it is worthwhile to have them.

Upcoming

More orders and oral arguments next week/month.

ETA: There will also probably be one or more opinions dropping on Wednesday. Also, Tom Goldstein, founder of SCOTUSblog, was convicted.

SCOTUS Watch: More Executions

Ronald Heath

The Supreme Court, without comment, rejected a final appeal on the day Heath was scheduled to die. 

The result is probably justified given the law in place. Still, before a final sign-off for deprivation of life, an explanation is warranted. 

And a liberal using yet another criticism of the lethal injection procedure (cited in the final appeal) to flag its problems would have worked. Having been a Sotomayor statement about that in a while. 

He was executed later in the day. 

Florida continues to execute people for decades (1989) old crimes. I continue to find that problematic, constitutionally or otherwise (see Glossip v. Gross, Breyer's dissent). 

Heath's brother pleaded guilty and received life imprisonment. They murdered a travelling salesman in a robbery. Some legal claims:

The Florida Supreme Court denied appeals filed by Ronald Heath last week. His attorneys had argued that Florida corrections officials had mismanaged their own death penalty protocols, that the state's secretive clemency process blocked due process, that Heath's incarceration as a juvenile stunted his brain development, and that jurors did not recommend the death penalty unanimously.

[The unanimous jury issue has been a repeat loser, though on some basic level it does seem wrong.] 

One anti-death penalty discussion notes that Heath's brother was the triggerman. Prosecutors said Ronald Heath also murdered someone else. Plus, at sixteen, he murdered someone with two others. 

Heath was released early for that previous crime, which is understandable since he was a teenager. He deserved a long prison sentence. It is doubtful he would continue a life of violent crime in his mid-60s. 

An execution over 35 years after the crime, at any rate, is a dubious matter. Such dangerous people being incarcerated, at least during their violent years (not sure about the mid-60s), is justified. The lottery capital punishment system is not.

Kendrick Simpson 

Simpson murdered two people twenty years ago. 

The details are aggravating. The judge claimed he showed "no remorse." 

Simpson’s lawyers told the board that Simpson was sexually abused as a child and his mother was addicted to crack cocaine. That trauma continued into his adulthood after someone shot him five times in New Orleans in 2004, leading to 16 surgeries. 

The Oklahoma Pardon and Parole Board voted 3-2 against recommending clemency. So, even here, there was only a borderline rejection of not executing him.

His final appeal to SCOTUS flagged alleged due process problems with the state not properly hearing certain claims. Same deal: denied, no comment. 

Oklahoma executed him. 

ETA: Also, in death penalty news.

Biden commuted the sentences of 37 of 40 people on federal death row. Three infamous mass murderers are still on death row. 

Trump then ordered twenty-one to be sent to a supermax prison. A Trump-nominated judge ruled that this was done without proper due process. 

Various others might be prosecuted for state capital crimes. This would be quite expensive and likely lead to years (if not decades) of appeals. 

Another person (not of this bunch) was sent to a state that executed him last year. The Trump 1.0 Justice Department waited until mid-2020 to early 2021 to execute people. So, it might be a while now, too. 

First Execution of 2026

Charles Victor Thompson was sentenced to die for the April 1998 shooting deaths of his ex-girlfriend, Glenda Dennise Hayslip, 39, and her new boyfriend, Darren Keith Cain, 30, at her apartment. Cain died immediately, Hayslip lingered some. Texas executed Thompson today by lethal injection.

Thompson's final SCOTUS appeal sounds dubious:

Thompson's attorneys have asked the U.S. Supreme Court to stay his execution, arguing Thompson wasn't allowed to refute or confront the prosecution's evidence that concluded Hayslip died from a gunshot wound to the face. Thompson's attorneys have argued Hayslip actually died from flawed medical care she received after the shooting that resulted in severe brain damage sustained from oxygen deprivation following a failed intubation.

The state not only argued that this was not a new claim. It was besides the point. Thompson was still responsible for her death. Why, after all, did she need medical care? 

SCOTUS earlier today, without comment (as usual), rejected the argument. It very well might be sound as a matter of appellate review. I still would like at least a brief explanation before the final court paves the way to the deprivation of life.

I continue to find long lag times constitutionally troubling (Breyer's dissent). Over twenty-five years fits the bill. Others will be glad that "justice finally prevailed." 

The top link notes that he escaped from prison for a few days after an earlier appeal. It sounds like a result of a ridiculous laxness of security for a capital offender:

Shortly after being resentenced, Thompson escaped from the Harris County Jail in Houston by walking out the front door virtually unchallenged by deputies. Thompson later told The Associated Press that after meeting with his attorney in a small interview cell, he slipped out of his handcuffs and orange jail jumpsuit and left the room, which was unlocked. Thompson waived an ID badge fashioned out of his prison ID card to get past several deputies.

Thompson committed a horrible act, murdering two people in cold blood. It was a personal crime, a result of his anger and revenge, which makes it somewhat less blatant as a "worst of the worst" situation. He was in prison for approaching thirty years. That is not nothing justice-wise.

Few will cry over his execution, of course, and he is now mostly a statistic. The first execution of 2026.

I might not provide deep dives for each execution this year. Perhaps, only those that receive SCOTUS review like this one will be handled. Time will tell. 

Another Execution (Two?)

Stacey Humphreys

In 2003, which is a long time ago [see Breyer] but not as long as some set for execution in 2025, Stacey Humphreys murdered two women. Robbery/homicide. 

He was brutally practical about it, having them strip nude (figuring that would lessen any difficulties) and murdering them execution style. The SCOTUS liberals in October flagged a problem with his jury. 

Georgia scheduled his execution on Wednesday, but the parole board held things up (apparently, there was a conflict issue). The execution warrant will be active until next week, so we will see how that goes. 

ETA: The warrant ran out without an execution, so he won't be executed this year. So, 2025 had 47 executions.

Frank Walls

Florida executed one more person on Thursday, being quite busy, having nearly 40% of the total (19/48), tossing in the Georgia execution that, for now, is held up. He was guilty of multiple rapes and murders.

Yet again (1980s), we have a case where the execution happened long after the crimes and trial. He is an example of someone for whom the death sentence is understandable. But, even there, there was an over thirty-year lag time, which is very problematic. 

(The jury issue in the first case underlines that even in particularly cruel cases -- and there the person also had a history of crime that he then upped a notch -- the death sentence repeatedly is problematic.) 

There was a last-ditch effort, as usual, that was turned aside without comment by SCOTUS. The issues cited included potential problems with the lethal injection and mental capacity issues.

===

No more executions are scheduled for 2025. We will see if the Georgia execution occurs. 

If so, it would be the 48th execution, 29 scattered in various non-Florida states. Trump had little to do with them, except for one case where someone was released from federal custody. 

Two Executions

Mark Geralds [12/9, Florida]

A Florida man who stabbed a stay-at-home mom (in 1989) to death and later orchestrated a daring jailbreak has become the 18th man executed in the state this year, a record.

Another brutal murder in which (see below) the execution was problematically delayed for thirty-five years. The article cites Trump's support for an uptick in executions. If you take out Florida, the uptick is marginal. Trump had little to do with it so far. 

A statement released by the family was glad justice was done. There are many people in a "family," and some families of victims oppose the death penalty.  

The jailbreak took place in 1990 when he was awaiting trial. He was soon recaptured. The article does not flag later problems in prison. 

He had various appeals, some that reached SCOTUS, but no final one before he was executed this week. 

Harold Nichols (12/11, Tennessee)

Harold Wayne Nichols, 64, [was] executed by lethal injection on Thursday, Dec. 11, for the 1988 rape and murder of 20-year-old Karen Pulley, who was bludgeoned, raped, and left for dead.

On Jan. 3, 1989, he raped three separate women − including two single mothers whose children he threatened − and tried to rape a fourth woman, all within four hours of each other, court records say.

The over thirty-five delay in execution is constitutionally and otherwise problematic (Breyer). 

The final appeal focused on problems with lethal injection, including an apparent recent botched Tennessee execution. A serious issue that continues to be a concern, but not one the SCOTUS majority has shown much concern about. Ever. 

(The Supreme Court rejected the final appeal on the morning of the execution without comment.) 

The failed petition for clemency noted that two former prosecutors involved in the case and multiple jurors thought the death penalty was no longer appropriate. There is repeatedly a change in belief in that respect, including when other things are factored in. Such is the value of an opening for commutations. 

Nichols admitted his guilt and the need for him to be detained. Correction officers cited his good faith as a prisoner. Execution as forty years approaches appears gratuitous if not counterproductive (to encourage good behavior). 

There are two more executions scheduled this month.

==

I discuss Human Rights Day (12/10) here.

Richard Barry Randolph Execution

A man convicted of raping and fatally beating his former manager at a Palatka convenience store [in 1988] is scheduled to be put to death next month under a death warrant signed Tuesday by Gov. Ron DeSantis, who is setting a record pace for executions.

A brief in an earlier failed SCOTUS appeal noted the jury chose death by a vote of 8-4. The Supreme Court repeatedly failed to take cases to address old cases without a unanimous jury in capital cases. 

Nonetheless, it is troubling to execute someone when one-third of the jury disagrees. I also continue to find it constitutionally problematic to execute someone after a long, long time (here over thirty-five years).

(See, yet again, Justice Breyer's dissent.) 

Richard Randolph's lawyers failed to hold up the execution, raising many claims. SCOTUS, without comment, turned away a final appeal today. 

Of the 43 executions so far this year, 34 involved at least one female victim. Of those, 21 cases involved sexual violence against the women and six were attacks on domestic partners.

Florida is playing catch-up, leading all states in executions in 2025. It has at least two more scheduled next month. The public welfare has not improved.