Some Quick SCOTUS Reactions Regarding Yesterday's Elections

The Supreme Court gave the cold shoulder to a Trump Justice Department ("DOJ" is a bit too generous) request involving claims that noncitizens may be voting in California. A bit of Election Eve News.

The Democratic wave has significant potential in local justice departments with national effects. Partisan lawsuits, red and blue, are a big thing these days. Federalism for the win! Congress also needs to investigate Judge Emil Bove, among other things. 

I agree Alito retiring NOW is unlikely. I'm not sure how much SCOTUS will otherwise respond as positively as Vladeck suggests. If you want to reference 1936, SCOTUS soon upheld many New Deal programs. We had a great shift in constitutional law. What is the idea now? 2026 didn't promise to have too many significant cases anyhow.  

Meanwhile, on Election Day, the Supreme Court had another case on the lengths they have gone in the direction of promoting free exercise over establishment, even in the face of discrimination. 

Mirror of Justice Blog (Catholic Legal Blog) back pre-Obergefell argued "race (and maybe sex) is different" in that area. To answer the "what about racist religions" hypotheticals. 

I disagreed then; I disagree now. 

ETA: New case granted. 

SCOTUS Watch

Order List

SCOTUSBlog has multiple entries about Monday's Order List. The justices are on a short break now. But, of course, things still pop up.

Sotomayor (with Gorsuch) again flags a problematic situation. This time it involves a car seizure policy.

Four justices did not take part in a dispute. They don't say why, but it is likely because of their involvement with a publisher. I say something about it here. 

The Supreme Court also granted two petitions, including one involving a home brewing ban passed in the 1860s. The other involves race discrimination and education. One is a law school hypo, while the other is conservative cotton candy.

I just hope for minimal damage. 

William Reaves Execution 

Vietnam Veteran Whose Jury Did Not Learn Critical Mitigation Evidence about His Service-Related Injury, is Set for Execution in Florida

The murder of a sheriff's deputy is the type of thing that might warrant a death sentence. Nonetheless, forty years have passed. See Breyer's dissent.

We also have more complications. The final appeal somewhat poetically addressed that:

Whether the Florida Supreme Court’s repeated failure to take into account the diverse frailties of humankind in capital sentencing by consistently denigrating the force of proffered mitigating evidence, including significant mitigation of a combat veteran, violates the Eighth Amendment’s prohibition of arbitrary, capricious and excessive punishment. 

Maybe, but the Supreme Court didn't think it cert-worthy. Executed. 

Trans News

The U.S. Supreme Court on Wednesday morning denied the Trump administration’s request to allow it to immediately implement a plan to end gender-affirming medical care and social accommodations for transgender people in prison.

Chris Geidner has more. Alito and Thomas dissented without an opinion. 

26th Amendment

The "Purcell Principle" has been subject to confusion over the years. As far as it goes, an order applying it this week seems acceptable.

Justice Jackson's solo dissent also sounds reasonable. The 26th Amendment is at issue, and the lower court ruling kept that in mind. 

(The order has the term's first correction.) 

Inside Baseball

Justice Kagan calls out the conservatives (giving them one overly generous pat on the head for not being too pro-Trump) while politely criticizing originalism. Did she read Alito’s book?

This bit of inside baseball is interesting. It also suggests that criticism has some effect. 

I have noticed how they put extended "opinions" that would logically be put on the Orders Page on the Opinions page. It is somewhat confusing. 

Court Expansion

I am not the biggest supporter. 

But I continue to find that the liberal opposition leaves something to be desired. Let's press the point.

The Democrats can win Congress. They can even win a trifecta. And we can see what court reform truly will entail. The debate starts now. 

===

The justices will be back in November. 

Two More Executions (Well, One)

I continue to agree with Justice Breyer (and Ginsburg and Stevens) that there are constitutional problems with executing people decades after the trial. 

No justice has agreed with them since. Thus, two more people were executed after thirty years, without any red flags being raised. 

Curtis Wilkie Beasley, 77, is scheduled for execution on Sept. 29 for the 1995 murder of a Polk County woman who was bludgeoned with a hammer in her home.

In 1998, a jury voted 10-2 to recommend Beasley die for the death of 62-year-old Carolyn Monfort of Dundee after he had been found guilty on charges of first-degree murder, robbery, and grand theft in February of that year.

It is becoming a standard practice. Florida executes old men for horrible crimes occurring decades ago. 

Other problems may exist (e.g., non-unanimous jury recommendation). The final appeals raise multiple claims. The time lag, however, stands out most. 

A major argument is that he is a decrepit old man who is not fit to be executed. I consider these types of executions a form of de facto euthanasia. 

Christa Pike, aged 50, is scheduled to be executed in Tennessee, USA, on September 30, 2026. She was convicted in 1996 of a 1995 murder committed when she was 18, barely out of a childhood in which she endured rape, sexual and physical violence, abuse, and neglect. The state failed to protect her as a child despite having knowledge of what she was facing. Her court-appointed lawyers then failed her at her trial, presenting little of the mitigating evidence of this abuse or its psychological consequences.

Tennessee last executed a woman in 1819. An execution of a woman is always atypical. The crime here was horrible.

Pike had accused Colleen of insulting her and trying to steal her boyfriend. Two other residents at the camp later testified that Pike had bragged about the murder before and after, and showed them a piece of Colleen's skull.

She did not act alone in the "torturing and murdering" of the teen. A co-defendant reportedly was the one truly into the Satanic rituals practiced during the crime. Her defense was also suspect, including failure to provide adequate testimony about her problems. 

A very troubled eighteen-year-old committed a heinous crime. She has been in prison for thirty years. Is that not enough punishment? Not according to Tennessee. She failed the death penalty lottery.

A coalition against sexual abuse submitted a striking amicus brief arguing that her past sexual trauma would lead to PTSD while she was being executed. She would effectively feel like she was being raped. 

The justices rejected all the final appeals without comment. I don't like that as a general rule. 

It is a tad worse here. Something worse happened the next day. The court of appeals (2-1) temporarily stayed the execution. The Supreme Court overturned the stay, with Sotomayor dissenting for the liberals.

Two appellate courts splitting on the issue shows room for debate. The Supreme Court's intervention allowed someone to die. The orders yesterday kept the status quo, though one allegation was glaring enough to warrant a response. 

I understand the concern that the court of appeals wrongly stopped things at the last minute. It has been thirty years, and now there is more delay.

I wasn't sure if it made the right call. New evidence might be present, but was it really enough? There was also a procedural debate over the claim. 

Once the court of appeals stayed the execution, the presumption favors the status quo. Lifting the stay would result in someone's death. (Or so it seemed.) The majority should have explained why reversal was warranted. 

The execution was also botched. Media witnesses explained, in brutal detail, how things went down. She was alive over an hour after the execution drugs were administered. I wonder about executions in other states. Were there more problems than apparent? 

They were left in the dark about what exactly happened, including whether she was still alive. 

"No prison officials were outside to tell the media what was happening as the first responders arrived. No time of death has been publicly provided."

A curtain was repeatedly drawn to hide what was going on in the execution chamber. Later, a court reported that the government provided medical attention. Anyway, I guess her concerns about the use of lethal injection weren't totally off base. 

It was not the first botched execution this year. The governor announced that officials will suspend the other execution planned this year while they investigate. 

Some people have denounced capital punishment as "barbarism" tonight. Often, it goes down without looking as horrible. But maybe that is how barbarism works. It seems okay, then they rub in how bad it is. 

==

Meanwhile, the Supreme Court prepared for the new term. A "long conference" examined a bunch of pending appeals, mostly to dispose of them.

Alito recused himself in a major climate dispute. There was some back-and-forth involved. 

Alito (more) and Roberts are the only active justices with individual stocks, which means Alito has to recuse more often. Maybe there is a better way?

SCOTUS Watch: Budget Edition

Kagan/Barrett Testimony

COVID and other things (that can't explain the much longer Senate lag time) ended the regular tag team (one liberal, one conservative justice) going up to Congress at budget time. 

The appearances not only provided a chance to discuss budget matters. Congress members could ask justices other questions, including diversity of court personnel and other matters. 

For instance, the "shadow docket" or ethics. To cite stuff covered this time. Likewise, an ethics code, which Kagan is open to having some enforcement mechanism. Leaks were also discussed. 

It is a useful, if not profound (hearings rarely are), dance. Some useful information is shared, and justices remember that they are not just above it all. 

One thing some sneered at was the justices' discussion of increased security concerns in recent years. "Yeah, threaten our liberty, you will get push back." 

Barrett being told by her security staff to wear a bulletproof vest is a bit more. Bluesky comments talked about gun drills in schools. Okay?

If people sent you pizzas in the name of a judge's murdered son or "swatted" (fake police reports) your house, it still would bother you, correct?  This is not a pissing contest. There are serious concerns here. 

It is not totally coincidental that the uptick overlaps with the Trump Era. Liberal and conservative judges have been affected. But Trump stands out. 

He played a significant role. Schumer once talking about "reaping the whirlwind" doesn't make it "both sides do it," when Trump regularly uses violent and delegitimizing rhetoric about the courts.  

Yes, Barrett is part of the problem. She supported Trump, significantly so she could get her job.

But security is still a concern. 

Dennis Sochor Execution

Florida continues to execute senior citizens. Sochor raped and murdered someone in 1981. 

These lengthy delays create two special constitutional difficulties. First, a lengthy delay in and of itself is especially cruel because it “subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement.” Second, a lengthy delay undermines the death penalty’s penological rationale.

Yes, Justices Breyer, Ginsburg, and Stevens. 

The final appeal, rejected without comment, provided additional information regarding alleged evidence that Florida's execution method is cruel and unusual. 

His lawyers claimed Florida wrongly blocked an attempt to make such a claim. Various recent appeals in some fashion addressed this concern, including requests for information. 

Sotomayor once released a statement noting her concern. Otherwise, crickets. 

Kagan, during her testimony, challenged the use of the term "shadow docket" because the justices have explained things more. Well, that explanation is only a matter of degree. 

He was executed later in the day. The coverage does not suggest any issues. But I did not find any in-depth discussion of the overall claims, either. 

Two more at the end of the month.

Trump News

The Supreme Court has done much to help enable Trump. One thing they did not do was block this. 

They did delay it somewhat. The other civil judgment, involving much more money, is still pending. 

Carroll received the money more than three years after a jury found that the president was liable for sexually abusing her in a Manhattan department store in 1996, and then for defaming her on social media. Trump has repeatedly appealed the judgment to no avail — including petitioning the Supreme Court multiple times — and last week launched a last-ditch attempt to block her from getting the money.

But this is a start. 

Like the one successful prosecution, thank you, New York, for helping to obtain a modicum, a small modicum, of justice and consequences. 

Other Stuff

The first summer Order List, traditionally a short nothingburger, is due on Monday. 

SCOTUS Watch

Justices Amy Coney Barrett and Elena Kagan will appear July 14 before the House Appropriations Subcommittee on Financial Services and General Government, which has jurisdiction over the annual spending measure that funds the Supreme Court, according to a scheduling announcement from House Appropriations Chair Tom Cole (R-Okla.).

The Supreme Court might be in recess, but it is still in session. Odds and ends still occur.* 

The most notable news, however, is that two justices will (for the first time since COVID) appear before Congress. Thomas, for some reason, stopped by recently. Not in an official capacity. 

The usual procedure was to have a liberal and a conservative justice, as we have here. The appearance provides members to ask justices non-budget related questions. 

“the right to have rights—to freely participate in our political community”

We will also have many term round-ups. 

Prof. Dorf discusses a controversial reference in the birthright citizenship opinion. I don't think he quite salvages the reference. Yes, noncitizenship is "less secure." Noncitizens still have rights.

Prof. Segall talks about Kavanaugh's de facto acceptance of living constitutionalism. Brett has to bow down to the originalist god, including talking about how constitutional "meanings" hold firm. 

As with the English language generally, however, meanings change over time, too. Sorry dude. 

==

Note: The summer is sometimes so lacking in SCOTUS news that I am left to cite the website providing a typo correction to one of its opinions. 

The Court used to fix typos silently as if there were editing elves doing so out of public view. Now, they openly cite even the smallest edits. 

They also provide the final "bound" version of the opinion, which in the past took years but now starts during the term itself, including any changes at the bottom of the page.  

Check out here. There are "revisions" with the date provided. You can also look down the page and see the first twenty or so opinions now have exact page locations. 

The changes, like the different versions of biblical verses (h/t Bart Ehrman), are often trivial. Nonetheless, it is a good bit of open government. 

ETA: Graham Platner finally formally removed himself from the Senate race. The new replacement of Senator "Kavanaugh Won't Overturn Roe!" will hopefully be picked later this month. 

SCOTUS Watch: Opinions/Orders

Orders

The Order List had some notable content, including multiple grants and no grant in the E.J. Carroll case. Maybe, just maybe, Trump will have to pay up for his sexual assault.

Gorsuch (with Alito and Thomas) returns to his concern about health workers not being able to obtain an exemption from vaccine mandates. NY, among other things, argues it is a bad "vehicle" for review. 

Thomas (with Gorsuch) wants to re-examine NYT v. Sullivan, citing original understanding (the case involves Alan Dershowitz suing CNN). If they want to quote original understanding, quite a few modern-day First Amendment cases should be decided the other way. A lot more limits were allowed back then. 

Sotomayor, for the liberals, dissented in a qualified immunity case involving a prisoner alleging mistreatment. There is a good originalist argument, ignored by conservative justices, that juries should have wide discretion to find government officials liable for wrongdoing. The Founding generation thought juries were the "palladium of liberty," even more than judges, who were creatures of the state.  

Each Trump nominee did not take part in a case without saying why. 

There should be another "clean-up" order, with perhaps more recusals, later in the week.

Opinions 

Barrett (with Roberts + the liberals) upholds a rule regarding mail-in ballots. Rick Hasen argues that "text,  history, and longstanding practice going back to the Civil War" back her up. A somewhat unhinged Alito opinion, however, still received four votes. 

Kagan continues the expansion of the reach of the Fourth Amendment to "geofence warrants," regarding the location of cellphone users. Alito, Thomas, and Barrett dissented. Gorsuch concurs but tosses in some cosplay about original understanding.

[Orin Kerr of Volokh Conspiracy is one resource for this topic.]

Roberts had the big two for the day involving agencies. The Federal Reserve, 5-4, can retain its "for cause" removal rules. The dissenters partially complain about the reach of the opinion, which broadly rules to bring clarity to the question.

(People are arguing that Roberts/Kavanaugh selectively exempt the Federal Reserve "to protect their stock portfolios." The special exemption is dubious. OTOH, various agencies regulate financial matters. They also affect stock portfolios.)

Not so for other agencies, overturning long practice (at least from the late 19th Century) and precedent (from the 1930s). The whole thing is bullshit, 6-3, Sotomayor (Kagan usually handles this issue) with the dissenting opinion for the liberals. 

(Her dissent, which she read from the bench, is very good. We should have audio/video.) 

The First Congress split various ways regarding the proper constitutional and policy rules for removal. It is a political question that should be left to congressional discretion. The dissent is correct that the majority forgets its "place." The voters need to secure a new Congress that reminds them. 

The 6-3 majority puts its thumb on one side. Perhaps, it is an ironic move to honor the 250th Anniversary of the Declaration of Independence (tyrannical king). 

Some more opinions tomorrow.

ETA: A discussion about them. 

SCOTUS Watch: First Opinion Day

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

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

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

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

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

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

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

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

NY Primary

My district had two races: state comptroller and the House (Ritchie Torres).  The liberal challengers didn't do well. They did well in some other places, including Brad Lander, Mayor Mamdani's choice. 

It was a low turnout race in my polling place. I manned the only polling table (there are usually two). I appreciate those who showed up, a few with little children. Democracy is action.

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. 

NY Primary

 

My two options for early voting are the state comptroller (long-term Democrat) and the House (I'm represented by Rep. Ritchie Torres) races. Basically, protest votes.  

Torres has been a jerk at times and too pro-Israel (basically, they can do no wrong). He has strongly gone against Trump. Still, I'm glad I can vote against him in the primary. The other race? Some left-leaning groups endorsed the challenger. Okay. Eh.

SCOTUS Watch: Opinions

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

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

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

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

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

Kagan got off the bus there:

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

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

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

Constitutionalism 

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

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

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

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

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

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

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

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

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 v. Trump: Tariffs

Congress should have handled this. 

But, since they are led by chickenshits, a 6-3 Supreme Court opinion blocked Trump's patently illegal (and financially stupid) usage of tariffs.

People wondered why they were taking so long. The 170 pages of opinions help explain why. 

Roberts handled the majority and did so in twenty pages. Kavanaugh (for Thomas and Alito) wrote a dissent three times as long. 

Gorsuch wrote a "combative" (to cite one comment), quotable concurrence twice as long.

Gorsuch, essentially thinks virtually everyone else is wrong, hypocritical, or both. He, virtually alone, is pure.

Right you are, Law Dork. Gorsuch is a prick and remains one even if he sometimes is on the right side.  He took over for Scalia and has improved his writing. 

Still a prick. People are loving some of his concurrence. Kagan and Barrett show that some of it is hot air. Dude goes too far. Keep that in mind. 

Both Barrett and Kagan, in different ways, basically told him to stop mansplaining. Kagan, for the liberals, didn't use the "so-called major questions doctrine." 

Kavanaugh and Thomas (adding some other originalist invention that many originalists aren't aware of) found a way to avoid it. Some are surprised at Kavanaugh's vote, but other than Alito and Thomas, he has been the most Trump-friendly. He did go the extra mile here. Give that man a beer. 

Jackson, arguing that it is what many legislators use more than bare citation of text, appealed to legislative history. She will be fighting the young Trump appointees for years to come. You go, girl! 

When Congress tells us why it has included certain language in a statute, the limited role of the courts in our democratic system of government—as interpreters, not lawmakers—demands that we give effect to the will of the people.

Barrett's opinion (a few pages, since she's not a blowhard) specifically answered Gorsuch, tossing (as required) a couple of citations of her former boss (Scalia). She noted:

Textualists—like all those who use language to communicate—do not interpret words in a vacuum. Instead, we use context, including background legal conventions, common sense, and constitutional structure, to ascertain a text's most natural meaning. (cleaned up)

Which is fine. Just to be clear, those terms are rather flexible. Again, that is fine, since any interpretative method will be, especially in hard cases. 

It is just that when Scalia or Gorsuch claims their method is special while the other side is lawless or something, they are full of themselves. 

I wrote something about originalism and Richard Hasen's book (not new) about Scalia here. More here ("Joe from the Bronx"). 

He has a chapter about "word games," arguing that textualism sometimes is just that. Like Jackson, Hasen also cites others who have found that Congress expects its laws to be handled differently. 

The majority opinion argues that there is no "foreign policy exception" to the major questions doctrine, especially when it involves taxation, a basic congressional power. Reminds me of the Steel Seizure Cases and the Supreme Court's citation of domestic powers. 

Roberts left open the possibility that Trump has the power to apply tariffs using some other legislative authority. Such authority has various limitations. It won't let him do his unhinged, power-hungry routine against various nations. Well, as badly. 

The law is crystal clear; conservatives are wary about tariffs, and it is a way for the Supreme Court to show they are not a potted plant. 

TPM is correct that the Supreme Court took too long. This has been going on for around a year. The tariffs are lawless. They caused lots of problems. 

Let's not exaggerate. The Supreme Court should have restrained Trump much more. And, the result is messy, since it does not handle the relief for taking money illegally. More litigation will follow. 

But you take the wins when they come. Trump reportedly was cursing when he found out about the opinion. He later said at a press conference:

Trump praises Alito, Kavanaugh and Thomas for dissenting on the tariffs ruling before, calling the other justices "a frankly disgrace to our nation" who are "very unpatriotic and disloyal to our constitution" and are "just being fools and lapdogs for the RINOs and the radical left Democrats."

Justin Baragona on BlueSky also flagged that he still welcomes three of the justices to his speech to Congress, while others are "barely" invited. Barrett and Gorsuch are embarrassments to their families. 

Yeah. I'm still with the House Minority Leader.

"Fuck Donald Trump and his vile, racist, and malignant behavior

“This guy is an unhinged bottom feeder,” Jeffries added. “Every Republican sycophant who continues to stand by their cult leader should be run out of office.”

Let's end where we began. Congress could and should have handled this. They still can. 

A Democratic Congress would have had a better shot.

ETA: The law here should not cloud the policy. 

The very reason this lawsuit could be brought is that it brings financial harm to the challengers.

My reference to Congress touches upon this. Democrats are already highlighting the economic harm and demanding refunds for ill-gotten funds. 

Trump promoted tariffs as a fundamental aspect of his economic policy in the 2024 elections, to much scorn from reasonable people. Reason, however, did not win out. Many still realize the policy was stupid and (contra to his lies) mostly paid by Americans. 

Other Stuff

They also changed the rules to help flag financial conflicts. The public information office posted an explanation (sometimes just notify the press). 

It would be even better if Roberts and Alito (well, he might be gone soon) sold their stocks. Also, be nice if all of them, not just Kagan and Jackson, explained why they recuse from cases. 

There was also a housekeeping order. More orders on Monday. Two opinion days next week. They are back hearing oral arguments. So busy, busy. 

They will also have (in March) an event in honor of Sandra Day O’Connor. 

SCOTUS Watch (Reform Edition)

(I forgot about the NYT article that dropped about Roberts having people sign non-disclosure agreements. But that was a voluntary policy already and there still will be leaks. 

How much really does that change things? We are concerned about other stuff, aren't we? On that, Vladeck is correct in his Thursday Substack.) 

Term Limits

Rep. Tom Barrett (R-MI), a first term Republican, proposed a Supreme Court term limit amendment as part of a wider reform package. The overall package sounds dubious but I'm okay with people seriously trying to reform the government.

The term limit amendment would set a twenty-year limit. A term limited judge could still be confirmed for another level of the judiciary. Sotomayor was both a district and court of appeals judge. A person could theoretically serve sixty years.

The amendment, as all realistic reforms are likely to be, only applies in the future. No current judge or justice would be term limited. This underlines how a term limit, however fine it is, and I support them, will not by itself be enough. 

Barrett wants to tie this with a set nine on the Supreme Court. Why should the Supreme Court, which has gone up and down from a 5-10 justice range (five never came to pass and ten was short lived) be set at some specific number? 

Republicans repeatedly are expanding state courts. This doesn't make it ideal. They do multiple bad things. But stopping any chance of expansion has to bring with it something worth the candle. 

Term limits aren't enough.

I am open to a compromise but one where the Democratic supported reform kicks in over twenty years from now (twenty years after the amendment is ratified) is not enough. For instance, we need an ethics bill. Any reform package is likely to have something I dislike. But need more. 

He also wants a supermajority amendment (2/3) to add new states. A bill banning mid-term restricting is fine. See below. This part is unconstitutional:

The bill would also require that only U.S. citizens are counted toward district apportionment and electoral votes. The census would still count all persons for other purposes.

(14A, sec. 2 says "persons" should be counted for apportionment purposes. That includes "district" apportionment. This rule would result in different districts being treated differently depending on the types of persons they have. No good.) 

Overall, it should be part of a wider voting rights bill. The three-year sunset funding idea seems too overinclusive. I am, however, game in having a debate to have Congress truly control the power of the purse. Trump has stolen it. 

Partisan Gerrymandering 

The Supreme Court (5-4) in Rucho v. Common Cause (2019) finally bit the bullet. 

After years of Justice Kennedy hemming and hawing, his successor provided the fifth vote. Federal courts will not try to determine unconstitutional partisan gerrymandering. State courts can use state constitutional provisions. And some have. 

Justice Kagan for the liberals had a strong dissent. And I understand. What truly annoyed me was that the conservatives were not consistent. 

They took away congressional power in Shelby County v. Holder to enforce the Fifteenth Amendment using vibes. If you want judicial restraint, do so consistently, please.

Federal courts can still determine that districting involves illegitimate racial gerrymandering. A lower court determined that was involved in Texas. The justices by a partisan vote overturned. 

Texas clearly had a partisan gerrymander. But that is functionally acceptable now when federal judges address the matter. Justice Alito has moved the goalposts and suggested they are generally acceptable. That, however, is not what Rucho said. 

The state, pushed by the Trump Administration which the lower court (written by a Trump nominee) found motivated by race, also redistricted mid-decade. The Constitution sets districting every ten years. 

It is not explicitly barred to do so mid-decade, but a case can be made. The whole thing has a race to the bottom feel. And Democrats, using the realistic motto that unilateral disarmament is for wussies, respond tit-for-tat. California for Texas. And so on.

If you allow Texas to redistrict to help Republicans win the midterms, there is no good reason to stop California from doing so to help the Democrats. People cynically figured SCOTUS would find a way.

They, without comment, did not grant a request to do so. Rick Hasen is happy and not too surprised. (Maybe, he is that no justice said anything.) SCOTUSblog has more on the details. 

Ultimately, this is depressing. We need nationwide election reform, including something that addresses partisan gerrymandering and mid-term redistricting. A national rule is necessary to avoid a race to the bottom. That is typical national rule dynamics.

We can debate the details, including what the current Supreme Court will deem appropriate under Shelby v. Holder. But this is not a good way to run a railroad.

Everything can be on the table. For instance, perhaps it is a good idea to expand the size of the House, which was set in place over a hundred years ago. Or some form of multimember districting is a good idea. 

Voting rights and overall republican principles should be something we can establish in a bipartisan fashion. Yes, I know, insert sarcastic metaphor here.

The point still holds. Rep. Barrett's package might not be my cup of tea. But young Republicans who will be around a long time, perhaps, willing to think creatively with some room for compromise are welcomed.

If sane people (Democrats at the moment) gain control, they very well might have a chance to be part of the solution. I'm serious. 

Any major change realistically needs some sort of bipartisan support to have staying power. A supermajority (see PPACA) might provide some chance, but when we are talking things like SCOTUS reform, we probably need more. 

The Struggle for Judicial Supremacy (Robert Jackson)

Imagine if someone wrote a book like The Struggle for Judicial Supremacy: A Study in American Power Politics today. Would they be confirmed to the Supreme Court, to replace the Chief Justice (someone else was elevated in-house), the next year? It might be exciting.

Robert Jackson was FDR's solicitor general and attorney general (his position when the book was released in 1940). He was a strong partisan supporter and testified in favor of the court expansion bill. Jackson includes FDR's message to Congress and radio address on that bill in the appendix. 

(Jackson skims over the controversy. He argues that a major problem was that the bill was not bluntly promoted to address misguided judicial supremacy. There was a hard-to-take argument; supposedly, it was really just a reform bill to improve the courts.)  

What is "judicial supremacy"? Each branch of government is "supreme" in its own sphere. Congress can impeach whom it wants (realistically speaking), as long as they are a federal officer. Presidents can veto what they want. In his famous Steel Seizure Cases concurrence, Jackson later discussed the broad power of the modern-day president.  

Jackson acknowledges an appropriate court concern (while noting they alone aren't involved) in protecting civil liberties. He does not reference it, as it was not yet famous, but Jackson endorses the famous "footnote four." 

(I don't think "judicial supremacy" merely means judicial review. Judicial review has its limits. Either way, being "supreme" in a certain area is not "supremacy." There is a greater meaning there.) 

His concern about "government by lawsuit" was the usage of substantive due process to, in his view, incorrectly override legislative discretion in policy matters. 

Likewise, an artificial application of constitutional provisions to rob the people's representatives of the discretion to make policy. This often had an economic flavor, so we have many cases involving employment, rate regulation, taxation, and so on. 

The Lochner Era and the battle of the New Deal were his particular topical focus. A specific concern, like now, was the lower courts, where injunctions could block government programs, even when federal law appears to deny the power to do so (tax injunctions). 

He provides an in-depth analysis of many legal disputes (after about 100 pages, I started to skim). Jackson argues that, generally speaking (again, civil liberties would be an exception), a strong presumption of constitutionality should be the rule. Eric Segall would be pleased. 

Justice Jackson had his limits in the area of civil liberties, especially after World War II. He thought there were limits to free speech, especially in the battle against fascism and communism. That is, "the constitution isn't a suicide pact." Jackson also thought there was a limit regarding the federal courts' interference with state criminal trials.  

Jackson warns that the courts have limited abilities. They work by lawsuit, argued by lawyers. Policy is not just a matter of applying legal principles, especially via specific disputes. A single dispute will not provide enough information. Litigation can also take a long time. Meanwhile, public policy is in limbo. 

He notes early on that what works for his time might not work in future days. Jackson was no originalist, though he respected history. Like FDR, he supported a "living law."

Justice Rehnquist (as he then was) in the link at the top of this entry noted that this is a "dated book." It is a project of its time. People might even have been surprised at it in late 1940. Wasn't the struggle for judicial supremacy won by FDR? Jackson knew, however, that it was a long haul. 

Imagine, for instance, what Jackson would have thought when the Supreme Court struck down the legislative veto a few years after Rehnquist wrote those words. Would he support a court expansion bill today? Either way, judicial supremacy remains bad.

SCOTUS Watch: Justice Jackson Is Busy

Justice Jackson stands out in today's Order List.

The order list starts with a procedural move that includes Jackson going along, but for a limited reason (see here; correction). 

Jackson and Kavanaugh don't take part in a case. Only Jackson explains why. (Kagan also follows that practice). 

Jackson dissented from the court’s decision to reject a request from Danny Howell, an Indiana inmate serving a 70-year sentence, to file a petition for review “in forma pauperis” – that is, without paying the $300 filing fee and the more substantial costs of printing a Supreme Court brief. The court’s order provided that because Howell “has repeatedly abused this Court’s process,” he would not be able to file new petitions “in noncriminal matters” (such as habeas relief, which is civil) without paying the filing fees.

(Amy Howe at SCOTUSblog)

The rule, put in place with the liberals of the day dissenting, has been around since the 1990s. Ginsburg et. al. went along. I appreciate that Jackson (she draws the line at incarcerated people), with her criminal defense background, did not. I wish she had done so before now, but better late than never. 

She also only concurred in judgment, a solo job, in a technical procedural case. The other two opinions were five and six pages each, each unanimous, though there were some separate writings. Sotomayor added a page in one, and Thomas (with Gorsuch) found another originalist hobbyhorse in another. 

Jackson also (along with Sotomayor) was an enthusiastic questioner in today's Second Amendment case out of Hawaii. She, in part, flagged how "history and tradition" advocates selectively find some history distasteful, skipping over it.  

The specific dispute was a strawman. The state's advocate tried to point out that, yes, one of the precedents cited was among those laws passed in the infamous "Black Codes" era after the Civil War. 

Nonetheless, the Reconstruction Congress accepted it, unlike others. Multiple conservatives latched on to the first part but ignored the second. Typical selective originalism. 

And, if the conservatives think "history and tradition" should be applied with an eye toward tainted pools, I have a thing or two to tell them about abortion bans. 

A completely nuanced take on history is both important and hard. See, e.g., the executive removal cases, which will continue tomorrow. 

SCOTUS Order List (and other stuff)

First off, I enjoyed Emily on Fire, a book co-written by James Patterson, which is a young adult novel whose title is a tad literal. I'm not usually a reader of Patterson (or Danielle Steel), but the cover drew me in at the library. 

Her mother died of cancer, and her sister committed suicide. Now, Emily plans to kill herself (you know how) to get the world to realize that we are fucked up and have to do something! The book mostly uses her point of view.

The book is raw (and honest, which is important) while retaining an empathy that provides some optimism that is much needed these days.

The only other news on the merits docket came Thursday—when the Clerk of the Court, in a letter to the parties, announced that Justice Alito is recusing from a case in which the Court is set to hear argument later today. 

Steve Vladeck explains an exception to the usual recusal without comment approach done by most of the justices, minus Kagan and Jackson. Sotomayor sometimes comments.

The norm (including applied to Alito vs. Kagan) was found on today's Order List. The Court granted some cases for review on Friday. Today, more so than normal perhaps, it was mainly about clearing brush -- a list of non-grants.

‪Sean Marotta‬, a lawyer, noted on Bluesky:

The #SCOTUS orders list today is a reminder of the shrinking commercial docket. Cases that would have been shoe-ins in the 90-case docket are getting denied regularly.

Kavanaugh, without saying why, noted he would have granted review in a bankruptcy dispute. As usual, I had to separately look up the docket number on the docket page, since the Supreme Court does not provide a link. Can you change that, guys?

The transgender athletes' oral argument is tomorrow. 

ETA: A comment in response to my reference to the Order List somewhere else flagged that there are two atypical requests for briefing respecting petitions for rehearing. I appreciate such information even though it encourages my excessive online habit. 

PFRhs are very rarely granted. The federal government waived a response in one case. In the other, it appears like they want to speed things along.

A bit of inside baseball during football playoff season.

==

I'm not too happy about most of the final scores in the first set of NFL playoff games. The Panthers (after two losses) gave the Rams a fight, but the end result was a third loss. I'm fine with the Bills winning.

A Jaguars' win would have been okay, too.

ETA: A close game, helped by the Texas QB screwing up, became a laugher in the 4th with Houston winning. It might be Rodgers's last game. 

I'm fine with that, particularly (1) not a fan of Aaron Rodgers, (2) Annoyed at the Week 18 win (they would have been better off losing that close game than yet another Steelers loss in the playoffs), (3) I'm fine with Houston, and (4) it's a better match-up with the Pats.

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.

Trump DOGE and Foreign Policy Follies

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

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

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

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

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

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

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

[Paragraph breaks added.]

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

State Department Human Rights Reports Will Have Changed Focus

One article cited provides a taste:

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

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

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

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