SCOTUS Watch

We are focused on Supreme Court things lately. The regular term will end soon, and there will be fewer.

The Order List again had a few interesting tidbits, including granting a case to determine if states need twelve-person juries for felony cases. The different policies regarding juries have led the Supreme Court not to nationalize all the federal rules (see, e.g., grand juries) there yet. 

They did not (without comment) take a challenge involving a now nearly 100-year-old federal judge who has been taken off regular service. It is a bit of a conservative cause celebre in some quarters. Others aren't too excited. They figure Congress set forth guidelines that allow courts of appeal to regulate such things, and it wasn't unjustly applied here. 

Jackson (with reason) and Alito (not) recused without saying why. Alito (with Thomas) wanted to take a criminal justice case. Alito wanted to take a case involving schoolchildren:

When she sought approval to hang flyers at school to advertise club meetups, school administrators would not approve the flyers because they contained pictures of students with “Defund Planned Parenthood” placards. 

Alito and various conservatives are more open to the federal courts intervening when conservative causes are involved. Meanwhile, the justices are preparing for the final burst of opinions, many of the twenty or so left "hot button" issues. 

There is only one (Thursday) opinion day scheduled so far. Granting another next Thursday is a gimmee; that is still not enough. At least two more should be necessary. Having one tomorrow would have been logical. We shall see how things go.  

Meanwhile, like usual, the Order List has some notable matters, even if nothing earth-shattering. 

===

ETA: I talk about the opinions handed down later in the week, including marijuana/guns, here. 

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. 

Judges Behaving Badly

A black woman judge, appointed by a Democrat, behaved badly. The judicial self-regulation left something to be desired. 

Liberals, who are not hypocrites overall on the issue, flagged the problem. Judicial ethics and proper congressional oversight should be bipartisan. It is a good campaign issue.

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

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? 

National Day of Prayer

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

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

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

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

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

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

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

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

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

SCOTUS Watch: Order List [And Other Stuff]

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

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

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

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

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

Steve Bannon

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

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

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

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

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

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

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

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

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

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

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

I say more here including about Sotomayor stuff. 

SCOTUS Watch

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: Orders

Steven Vladeck references one other SCOTUS rule change (other than the monetary recusal matter that received signficiant attention): 

The second, which got no media coverage, clarifies that, even when a party electronically files a cert. petition through the Court’s e-filing system on or before the day that it is due, it must still complete physical service of the petition within three days. (The sequencing of electronic filing and physical service had been unclear under the previous iteration of the rule; my own risk-averse approach had been to ensure that they happened on the same day.)

Today's Order List mostly deposed many petitions while only granting one for review. They accepted the second question.

Issue: (1) Whether federal law precludes state-law claims seeking relief for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate; and (2) Whether this court has statutory and Article III jurisdiction to hear this case.

Mark Joseph Stern on Bluesky:

The Supreme Court takes up a MAJOR climate case that asks whether federal law preempts (that is, forbids) state-level claims against fossil fuel companies for damages related to climate change.

(See also this discussion from a conservative p.o.v.) 

Kagan, noting why, recused from the determination of two cases. Jackson followed her new rule of not going along with blocking free petitions deemed from those abusing the privilege if the person is currently incarcerated.

There are two opinion days scheduled, so we might get a bit more news than that. There are also oral arguments, including one about the Takings Clause, but they aren't too notable. 

The author was a prosecutor there. Interesting book. 

55 Steps

 

An excellent character study involving a significant ruling involving the right to refuse drugs while civilly detained. More details here. 

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! 

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. 

SCOTUS Related News

Originalism 

This blog post on originalism is interesting even beyond the specific allegation. Originalism appeals to people for various reasons. Sometimes, outdated bad stuff helps conservatives. 

When they want to support things that actual original understanding might not support (e.g., campaign finance bans or regulatory takings), they find a way around it. It's a bit of Calvinball. 

For instance, Dred Scott v. Sandford had to play with history. The dissents show another path.

Brazil Recognizes Rule of Law 

Bolsonaro to Start Serving 27-Year Sentence Over Coup Plot

Trump v. U.S. and the end of the Georgia prosecutions are not the only way. Multiple former Brazilian leaders were prosecuted for crimes. 

I still don't understand, regarding the Georgia news, how some ethical issue involving a romantic relationship with the third choice for prosecutor was some sort of due process issue. Fani Willis at most should have gotten an ethical slap on the wrist. 

As with Trump v. U.S., there was no need for the state supreme court to take the case, delaying things until after the election, which sealed the deal. And that included many state defendants who still could have been prosecuted now. 

Limited Security Funding 

As judges face more threats, only the Supreme Court gets new security funds

The number of judicial threats has increased over the last ten years. Trump's vitriol does not help. It led to multiple threats and even some actual sanctions during his civil and criminal trials. For what good that did.

The failure to provide more security funds for lower court judges (tough on crime!) is suspicious.

According to several former judges, the money issue has also fueled perceptions that President Donald Trump’s administration and its allies in Congress have politicized judicial security. In hearings this year on the judiciary’s budget, some Republican lawmakers criticized judges who had ruled against Trump’s policies and pressed judiciary officials who testified on whether they would try to rein in what the lawmakers called a partisan judicial process.

Right-wing attacks are not the only cause of judicial threats. Vitriolic attacks from the top, however, matter. It worsens the situation. It leads to some more harassment. An article linked to the recent piece notes:

A simpler solution, several former judges said, would be for Trump administration officials to cool their rhetoric, which they believe fuels threats from extremists and fanatical supporters. While the White House has denounced violence against judges, President Donald Trump and some of his most powerful allies have continued to use inflammatory language to lambaste those who rule against administration policies.

In social media posts Wednesday and Thursday, top Trump adviser Stephen Miller called a federal trade court’s ruling against the president’s tariffs a “judicial coup” and reposted photos of the three-judge panel, saying, “we are living under a judicial tyranny.” 

[More here.]

More Trump News 

The Supreme Court *delays action* on Trump's request to fire Shia Perlmutter, the register of copyrights at the Library of Congress, pending the court's decision in two upcoming cases about the president's authority to fire federal officials. Thomas would let Trump fire Perlmutter now.

(Mark Joseph Stern on Bluesky regarding a Wednesday Order. No discussion from justices.) 

The second case is scheduled for January, so it will take some time. Meanwhile, the justices will be back on Monday with stuff scheduled until the 15th.

SCOTUS Watch: Orders

Texas Restricting

I started this blog in the middle of the first Bush43 Administration. Various shenanigans going on now, including mid-decade redistricting to obtain partisan ends, went on back then, too. A feeling of deja vu.

A 2-1 Fifth Circuit opinion provided a surprising win for the Democrats when the mid-decade Texas redistricting (which led to a retaliatory California effort) was struck down as an illegitimate racial gerrymander. Trump Administration shenanigans were involved. Their incompetence strikes again. 

The Supreme Court earlier held that political gerrymanders are non-justiciable in federal court. The Rucho opinion ended a 4-4-1 stalemate where conservatives wanted to prohibit such appeals and liberals tried to get Kennedy to agree to join them the other way. Kennedy, while not giving a firm "no," never gave them that fifth vote. 

The Supreme Court left such appeals open in the 1980s. I don't know how much the federal courts actually restrained the process. 

I am not aware of any SCOTUS case that struck down a partisan gerrymander (racial gerrymanders were found). The blog discussions against Rucho tend to skip over that part. Not saying Rucho was meaningless. Curious how much it changed things.

There was a very unhinged (and somewhat counterproductive) dissent to the court of appeals opinion. Justice Alito on Friday granted Texas an "administrative stay" on Friday and sped up the briefing. A response is required by 5p.m. today. 

Never-ending drama.

Order List 

Today's Order List is the last thing scheduled until the beginning of December. It had some interesting bits.

As Chris Geidner noted on Bluesky:

The Supreme Court grants no new cases for merits review in today’s orders list, but it does summarily reverse two lower court rulings in criminal cases—one holding a constitutional error in a Mississippi trial, the other holding the Fourth Circuit improperly ordered a new trial in a Maryland case.

The Mississippi case struck down as unconstitutional a law providing a blanket ability to screen child witnesses. A split SCOTUS opinion earlier upheld the practice, but held it must be "case specific." The Court, in a five-page opinion, left open the possibility that the screen would be harmless error in this case.

The case first came last spring and was distributed to multiple conferences. This suggests some concern. I think the case should have been accepted for full review and oral argument.

The Court also (again) refused to take a case to reconsider the Feres doctrine regarding immunity regarding certain military claims. 

Gorsuch would have taken it. Thomas again wrote to explain why he thinks so, too. Sotomayor is sympathetic but argues that stare decisis warrants leaving it to Congress to fix. She makes a good case. 

The petition for a writ of certiorari is denied. The Chief Justice and Justice Alito took no part in the consideration or decision of this petition.

Only Kagan and Jackson (and somewhat inconsistently Sotomayor) deign to explain why they recuse.

===

The justices will hold oral arguments in the first two weeks of December. 

Then, there is an Order List scheduled for 12/15. That is the last thing scheduled for 2025. 

Other stuff is likely to drop.

ETA: A reference in my daily SCOTUSblog email warrants an addendum.

plainly, courts “call balls and strikes”; they don’t get a turn at bat

The second criminal per curium given short shrift in my comments drops a "balls and strike" reference. 

The lower court explained how the Supreme Court allowed them to raise a problem with a trial that was not cited by the petitioners. So, it is unclear whether the justices were right to call them out here. 

But, overall, the justices don't just call balls and strikes. The Supreme Court repeatedly gets a turn at bat, including changing the questions raised by the lawyers for appeal. 

They also have a lot of power over the batters, including who will get a time at bat, when they will get a time at bat, and what they should do there.

The per curiam quotes an earlier opinion (by Kagan):

In line with our duty to call balls and strikes, we granted certiorari to resolve the split, 589 U. S. ___ (2019), and we now affirm.

Do umpires generally "call balls and strikes" by settling nationwide disagreements on strike calls via official statements of what the rules are?

Meanwhile, here's some more (from me) on judicial review, one of some new essays on that website. 

SCOTUS Order List

There are three basic things about today's Order List.

Kim Davis: Denied

Kim Davis's case was rejected without comment, even though some attention was given to it as if there was a real chance it would be used to overturn same sex marriage. Lots of people, including Mark Joseph Stern (gay, married, strongly anti-SCOTUS), were like "duh." See also, Chris Geidner (gay). 

As Steven Vladeck previously noted (linked here):

Third, there was a surge in media discussion about the pending cert. petition by Kim Davis, and what it means for the future of the Supreme Court’s 2015 ruling recognizing constitutional protection for same-sex marriage in Obergefell v. Hodges. (The surge seems to have been caused by the fact that the Court ordered the respondents to file a response to Davis’s cert. petition after they had waived their right to file such a brief. But such a move requires a request from only a single justice, and is in no way predictive of a grant of certiorari.)

This was one of those cases where a juicy-sounding case was on the docket, and too much attention was given. For instance, the Supreme Court doesn't grant a case, and a report suggests they decided the merits of the issue.

I am not going to disdain the average person being concerned here. The stakes are high, and people have a thin understanding of things. People aren't experts here. It's a learning opportunity. Anyway, hopefully, we are done with Kim Davis, who has been around for years. I have my doubts. 

Election Case Taken 

The Supreme Court granted review in a case for which the Fifth Circuit opinion was deemed "bonkers." 

The general idea appears to be that this was a "too much for the conservatives, at least two to three of them" Fifth Circuit ruling.  

Alito, Gorsuch, and Jackson did not take part in a case each. Jackson alone explained why. She and Kagan have consistently done that. Sotomayor, less so. Conservatives, never. Yes, this still bothers me. 

Gorsuch/Native Americans

Kagama helped usher into our case law the theory that the federal government enjoys “plenary power” over the internal affairs of Native American Tribes. It is a theory that should make this Court blush. Not only does that notion lack any foundation in the Constitution; its roots lie instead only in archaic prejudices. This Court is responsible for Kagama, and this Court holds the power to correct it. We should not shirk from the task. 

Gorsuch used a non-grant to dissent and provide some broad woke comments about our historical mistreatment of Native Americans and the Supreme Court allowing Congress to have plenary power over their affairs. Thomas joined him.

Thomas has gone his own way regarding Native American issues, including the proper rules for criminal justice. He has not been as woke on the merits as Gorsuch, which threw a few people.

Gorsuch has a point, though it's unlikely the Supreme Court is going to shift gears after over a hundred years. They won't frame things quite as crudely as some opinions back then. But changing over a hundred years of congressional discretion here?

I think not. Gorsuch's Native American stuff sometimes appears a tad too precious to me. Still, it is worthwhile to press the envelope given how much baggage there has been here. 

==

Justice Jackson also dropped another order regarding the very accelerated SNAP litigation. To hint at the speed here, an appellate opinion was dropped late yesterday (Sunday). Legislatively, also in flux.

Trump Odds and Ends

The Trump Justice Department regularly lied to and didn't follow the orders of courts. 

(This should matter, right?) 

Prince (for now) Andrew is having his royal title (basically symbolic) stripped because of his involvement with Jeffrey Epstein. 

OTOH, Mike Johnson is keeping the House of Representatives in session and not swearing in a new Democratic representative, partially to prevent a measure from releasing the Epstein papers. 

Even in the friendliest polls, Cuomo has the smallest enthusiastic base of any candidate. Curtis Sliwa has more people excited to vote for him. Cuomo’s only shot is patching together enough voters who fear or despise his opponent enough to accept him by default. He has nothing to offer for the future, just a cynical warning that we cannot trust it to someone else.

But that same need to control has brought him here: stuck in a race he’s unlikely to win, for a job he never really wanted. And that’s because Cuomo can see everyone’s faults but his own. He doesn’t show humility. He rarely apologizes. And if you never admit mistakes, you never learn from them. You never evolve.

Okay. Let's move on from this ugliness.

The Supreme Court has found another possible "this goes too far" bit regarding Trump sending troops into our cities. At least, eventually. 

Don't worry. As a whole, the Supreme Court (6-3 much of the time) has supported Trump while expanding its power, including against the lower courts. 

Time for court reform.

ETA: Some SCOTUS addendum stuff.

A media advisory dropped regarding seating for a Trump firing case, underscoring the expectation it will be a well-watched oral argument. Press seating will be by assignment only. All cases aren't equal.

It could take years to have a bound copy of a term's opinions. Now, they start providing bound pages during the term. The final opinions for the 2024 Term are now available with the page numbers. 

Oral arguments begin again on Monday. 

No Habeas For Chimps

An intermediate Michigan court unsurprisingly rejected a habeas appeal for chimpanzees. 

The claim was raised to obtain liberty for some chimpanzees allegedly being mistreated in a zoo. There are rules in place for the mistreatment of animals. Habeas protections provide a special level of protection against unjust detention. 

As part of the same framework, the common law treated animals as objects of property. Blackstone defined property as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” 

It is offensive that all animals, even chimpanzees, are treated as merely "property." Again, there are cruelty to animals laws that suggest they are at least a special species (ha) of property. This traditional despotic power is tempered somewhat in the modern day. 

I talked about this issue a few years ago when the highest court in New York rejected a similar claim as applied to an elephant. The Michigan Court of Appeals likewise worried about line-drawing for "intelligent" animals. 

Unlike the human species, which has the capacity to accept social responsibilities and legal duties, nonhuman animals cannot—neither individually nor collectively—be held legally accountable or required to fulfill obligations imposed by law.

And, noted non-humans are different in kind from women and slaves of all sexes (both are "persons" according to the Constitution). Such language can be pushed back upon. Babies are "persons" too, after all. But, generally speaking, yes, not the same, exactly.

[ETA: I am not sure how literally true the "legally accountable" bit is. Put aside that three-year-old human children are not held legally accountable. 

Dogs can be killed -- use the desired euphemism -- for vicious behavior. Non-human animals can be punished. They can be taught, like humans, to fulfill certain obligations and social responsibilities.

In return, we can have an obligation to treat them well. Before a dog is killed, there should be some due process. And, not just to protect an owner's "property." In medieval Europe, this was taken quite literally, with lawyers appointed and everything.]

Non-human animals, we can debate the line-drawing,* should not be treated as mere property. They have the intelligence, the ability to feel pain, and other aspects that warrant protection. Humans also have personal interests that warrant the protection of other animals. 

I don't know if a traditional habeas judicial proceeding is the best avenue to protect their interests. Yes, I would couch them in terms of "rights." But they should be protected. As with minors and others unable to adequately and independently defend their interests, special advocates can be appointed for this purpose. 

The legislature or the people, by constitutional change (some foreign nations protect animals in their organic law), would be the appropriate place to secure this protection. I hold to my earlier stance.

The current law warrants holding against the challengers. OTOH, two judges in NY did dissent. 

===

* Chimps are a somewhat easy case since higher primates are so closely related, including intellectually, to humans. Nonetheless, the earlier case involved elephants. I noted there that even birds, at least parrots, have shown special intelligence. 

Vegans and vegetarians draw their line in various places. Opponents will have a field day. One recent comment referenced jellyfish. Yeah. While you eat your veal, make a big deal about worms and such.

The line is going to be, at some point, somewhat arbitrary. Nonethless, like all "slippery slopes," some lines are reasonable. The general public does not think that cruelty to animals laws are stupid.

This remains so even if they step on bugs. 

Early Voting Begins

It is that time of the year again. Early voting has begun. Around five years ago, New York began to provide ten days of early voting. 

We also have "no excuse" vote by mail. I even convinced a voting-hesitant person to use it after years of not voting. She used an option where it is automatically sent to the voter, which is an incentive to vote as compared to those who would have to personally choose to vote each time. 

New York also provides a voting guide, though it does not cover judicial races. I find that dubious. 

I understand the value of convenience. I had to walk a significant way (not too long) the first time. Now, an early voting location is five minutes away. I will man the polls on Election Day.

(There is a race for governor going on in New Jersey. One person I follow on Bluesky is scaring me by warning us that the Democrat is not putting up enough of a fight. This is where we are at. Even NJ is not totally safe regarding not voting for the Trump Party.) 

Civic Duty 

I think in-person voting is an important symbolic act.

So, a little part of me doesn't like mail-in voting. But I understand there is a value there, especially for certain voters. It is best to have various options. 

Some argue Election Day should be a holiday to help some of these voters. It makes some sense, especially given the importance of voting overall to democracy.

But early voting helps to fill in that gap. After all, many people are already off today, Saturday, the first day of early voting. I don't think a whole day off is necessary. Early voting and many voting locations will also cut down wait times and other problems. 

Overall, we have a moral duty to vote. It is our civic duty. Some people are annoyed with that claim. 

How dare you tell me I have a duty to vote! I'm not (though it might work) talking about a penalty for refusing to vote. The state doesn't penalize being mean to mom. Is a minimal thing like voting too much for citizens to manage? Perhaps this helps explain things.

A fraction of the public voting has various problems. One problem is that it encourages very partisan representatives. Low turnout in primary elections is especially problematic when they are likely the "real" election in safe districts. AOC first won her primary with a tiny fraction of the vote. 

New York City Elections 

The two big things in NYC this year are the mayoral race and some ballot measures. 

Mayoral Race 

Zohran Mamdani is favored to win the mayoral race. He is a fitting answer to the times. Put aside the exaggerated, often bullshit criticisms. The main concern is that he is too young and inexperienced. He's more experienced than the Republican choice. 

And, as Mamdani said, Cuomo's "experience" is a big part of the problem. Plus, just what experience does he have to govern New York City well? Mamdani's campaign, including being open to respectfully listening, has shown a basic quality Cuomo lacks. 

It is a good thing that Mamdani and Cuomo (who should have simply dropped out) are not the only options. Mamdani's opposition hates that the anti-Mamdani vote is split. But do we really want Republicans and independents to only have to vote for Cuomo? It's as if Bill Clinton were the alternative to a very liberal presidential option in 1996.  

I'm obviously biased, but I am honest in saying that. My Republican city councilwoman (I have not seen a single campaign sign in the neighborhood of her competition; the Democrat deserves to lose), along with the rest of the small Republican caucus, endorsed Curtis Sliwa. If nothing else, Sliwa is not an asshole, Democratic, and likes cats. 

Sliwa is still not a serious option if you truly thought Republicans had a chance. He ran unopposed in the primary, probably because they felt Cuomo would win. He didn't. Too bad, Republicans. 

Additional candidates have filed to run on other ballot lines in the general election but have not raised significant funds or polled among leading candidates. They include Irene Estrada (Conservative Party) and Joseph Hernandez (Quality of Life Party). Walden and Adams will both still appear on the ballot, despite suspending their campaigns.

Some long-shot candidate (Walden) floated himself as an alternative for a little while. He waited too long to concede he had no shot and remained on the ballot. 

Eric Adams, who wound up endorsing Cuomo, is still on the ballot. Filling out the ballot is the first time I heard of the "quality of life" party. 

The biggest question is probably whether Mamdani receives over 50% of the vote. Cuomo concedes it is a longshot for him to win with Sliwa in the race. 

I am also interested in whether Adams or anyone else will receive a significant amount of the vote. I reckon Adams' loyalists might give him a percentage or two at least. I don't expect miracles with Mamdani.

But I think he gives us a chance to obtain some good things, including a suitably strong counter to Donald Trump. Plus, Adams is so darn crooked. 

Ballot Measures 

Mamdani has played it safe lately, including not stating his opinion on the ballot measures. 

I don't think the reason was the state measure concerning the use of wilderness land for development (more land will be put aside to compensate) or one about new maps. That is, the two I supported. A sixth measure about ending off-year elections (it is not the final step, even if it passed) is challenged here. 

The three housing measures, a "gift" of sorts from Zombie Candidate (he is still on the ballot), Mayor Eric Adams, are particularly touchy since the City Council hates them. It's logical since a major point is to reduce their role, to help speed up the process. 

Affordable housing advocates support the measures, though the League of Women Voters was agnostic about one of them. A "yes" vote seems reasonable, even a good idea. Still, I was hesitant. I decided to vote "no" out of caution. 

I am wary of direct democracy, especially regarding specialty issues and/or things that warrant the balancing of interests. This issue is a reasonable exception since it specifically challenges the City Council's role, and they are self-interested. 

Other Races 

One more thing. New York has a form of instant run-off voting for city races (district attorney is a state race). It is only available during the primary. 

There are other local races. Sometimes, you could vote third party (e.g., Working Families Party) instead of voting Democratic or Republican. For whatever reason, not every candidate runs on two lines.

It helps send a message that you support that cause. Third parties in even years also need significant vote totals to remain on the ballot. That doesn't seem like an issue in 2025. A few voters are confused and want to fill in the ovals for a candidate in both places! 

Sometimes, there is a third option, such as the "Unity" Party, which is meant to be a third "unity" type alternative. Only a few people vote for these candidates. Still, as with the chance to fill in your own candidate, it is helpful to provide other options. 

The comptroller and public advocate (who is the next in line if the mayorality is vacant) are decent Democratic sorts who will win. 

The city council races are generally not in doubt. Maybe there is some upset or two possible somewhere city-wide. I would hope that maybe my city council district (after an upset last time) would go back to being Democratic. But that candidate has basically not shown up. It is annoying.  

Judges 

Two local judicial candidates are also running unopposed in my district. This is common. 

It also underlines the stupidity of judicial races being on the ballot. Some states have more active judicial elections, and there are some ethically dubious things going on. Here, it is largely just something you fill in. 

The average voter knows little or nothing about them. Not that it often matters since (you can write in a name; I usually do), there often is no actual race. 

Final Thoughts 

I continue to find it reassuring that voters have a chance to decide on Election Day. Often, yes, things seem pro forma. The winners and losers are obvious.

Enough times to matter, however, there are actual races. That happened this year, too, especially the mayoral primary race. Either way, the act of voting, our civic duty, is a wondrous thing.

Some people argue that democracy is dead now that Trump is in power. Or, at the very least, it is in suspended animation, somewhat akin to Han Solo in that Star Wars movie. Fuck that. 

I got my sticker. And, voting still matters. It is still going on. Some might want to interfere, but we don't have to let them. Happy voting. 

Order List + Execution Week Begins

SCOTUS

The Supreme Court added a case involving plea bargains to the docket on Friday. 

Saturday brought an article about lower court judges being upset about the shadow docket. 

Today was Order Day (given yesterday was a holiday). Kavanaugh, Alito, and Gorsuch recused themselves without stating why.  Sotomayor, for the liberals, flagged a troubling jury/capital case. 

Gorsuch said he is open to incorporating the Seventh Amendment. If so, go all the way, since the grand jury is also quite important, and the Third Amendment also has its importance. 

Alito (for Thomas and Gorsuch) also added a short statement noting his concern that schools do not notify parents about children transitioning. Such things, unlike abortion or birth control (Thomas), are a fundamental right. 

ETA: Both Sotomayor and Alito used the word "tragic."  We were able to hear the full opening material (e.g., bar admissions) on the first day of the term. Not so this time, apparently, since the C-SPAN audio starts with the first oral argument, with a tiny bit of Roberts swearing in lawyers. 

I also skimmed (it's too long for me to read; it might have been back in the day) the famous Learned Hand biography. There's a lot of interesting content, although some chapters are tedious. A nice anti-originalist quote:

[I]f our Constitution embalms inflexibly the habits of 1789 there may be something in the point. But it does not; its grants of power to Congress comprise, not only what was then known, but what the ingenuity of men should devise thereafter. Of course, the new subject-matter must have some relation to the grant;  but we interpret it by the general practices of civilized peoples in similar fields, for it is not a strait-jacket, but a charter for a living people.

Reiss v. National Quotation Bureau, 276 F. 717, 719 (S.D.N.Y. 1921).

His Bill of Rights lectures, however, simply go too far. Judicial review is part of our constitutional system. Yes, you can be quite wary about applying it. But it is a thing. His career as a whole wasn't such "judicial restraint on steroids" as all that.  

Two Executions 

It also marked the beginning of a busy week of executions. 

Texas, which has its moments, stopped (for now) an execution. It involved discredited shaken baby evidence. But we still will have a busy week.

Lance C. Shockley was sentenced to death for the murder of a Missouri police officer. That was twenty years ago, which (yet again) gives me a chance to cite Stephen Breyer's concerns that delays at some point are unconstitutional. 

Murder of police officers is one of those crimes even those wary of the death penalty might make an exception for. However, as usual, some red flags arose. For instance, the jury split on whether to give him the death penalty, with the judge deciding. 

(He also had a failed religious liberty claim regarding what he wanted at his execution.  The Supreme Court rejected it without comment, though it waited until sometime late afternoon execution day or so to do so.)

If there was going to be a busy week of executions in 2025, obviously, Florida would have to get involved. Samuel Lee Smithers murdered two women around thirty years ago (1996). He was the subject of "Deacon of Death," a true crime novel.

(He was a church deacon. He was also connected to church arsons. The murder victims here were prostitutes. Is there some twisted religion angle?)

Smithers was executed when he was in his early 70s. The question remains if it is legitimate to execute him after all this time. Mental issues were flagged, and a victim's father said she would not want him to be executed. What of the other victim?

An execution at this point does have shades of involuntary euthanasia. In fact, the final appeal (as usual disposed of by SCOTUS without comment) argues it is unconstitutional to execute the elderly. The long time that has passed is mixed in. 

Odds and Ends: Peace, Judges, and Sex

I discuss the winner of the Nobel Peace Prize.

There are three types of judges that are elected by New York City voters, rather than appointed by the mayor or governor. 

Supreme Court justices oversee state trial courts for felony criminal cases and some types of civil cases, including ones that involve large amounts of money. 

Civil Court judges in the city preside over consumer debt, landlord-tenant disputes and several other kinds of civil cases. 

Surrogates’ Court judges handle cases related to deceased people’s wills and estates.

I think judicial elections are dumb, partially since the average voter knows nearly nothing about the people on the ballot here. Here's a helpful explainer with links for information.

I still think they are dumb.

This is a book (over 500 pages) from early 2017, so it can do for an update. Then again, it ends with a reminder that the law and social norms repeatedly changed and could change again, especially with new SCOTUS personnel. 

It starts from ancient times. A quick read overall. It argues that morals legislation tends to overlap with religion, so it is a separation of church and state issue. As Justice Brennan realized with obscenity:

Like the proscription of abortions, the effort to suppress obscenity is predicated on unprovable, although strongly held, assumptions about human behavior, morality, sex, and religion.

The final sections cover sexual speech, reproductive liberty, and gay rights. It is not totally comprehensive (it should at least reference Mormonism and polygamy), but it covers a lot of ground. Good book overall. My copy had no cover.