SCOTUS Watch

Shadow Docket

I saw news reports that the Supreme Court left in place a lower court decision that allowed a Trump deportation policy.

The order, which simply rejected an appeal without comment, was only on the Court's website later. I checked multiple times that day. I saw it the next day.

Amy Howe provides the details. Steve Vladeck has a piece (largely behind a paywall) on the sketchiness of the procedure used. He notes that conservative justices were upset when that happened during the Biden Administration. 

A lot can be behind a one-line "request denied" order. Anyway, they will be back next week. 

Tidbit: The preliminary bound copy of last term is almost complete. 

Walter Gellhorn lectured Japanese students at Tokyo University. He provided them with notes on our constitutional system. He adapted them into a book. 

I learnt about it in a book about Marilyn Monroe's library. She had a copy. Monroe was apparently liberal minded. The book was published in 1960. 

The book largely holds up, though some portions -- this was before many of the incorporation decisions -- are somewhat out of date. It does not talk much about religious liberty, except as a subset of the freedom of expression. 

The author notes that:

American constitutional law is not a massive structure that is erected all at once, and then continues to stand unchanged; rather it resembles a coral reef that gains bulk from many small accretions, and changes shape through the tiny erosions of wind and wave.

It is "built up on a case-by-case basis." Gellhorn is what some now would call a "living constitutionalist," with or without the sneer. He recognized that the law develops over time, influenced by our changing knowledge and values. 

He emphasizes court interpretation while noting that it will not likely go too far beyond current norms. People tend to place too much emphasis on the courts. 

Obviously, more so today than in the 19th Century, the courts play a large role in determining constitutional meaning. But they are not all that matters. 

(I will check out the linked new book.) 

We see that today with Trump doing a bunch of things and the courts being only so much of a check. I am all for (see Chris Geidner) cheering lower courts (especially) providing as much of a check as possible. 

But a lot is still happening outside them. 

It Begins ... I Voted

Marilyn Monroe was a big reader. 

In honor of the one hundredth anniversary of her birth, let's read all about it. Good book overall. She rambles some. But overall, a good read.

We began early voting about five years ago. The early voting location was a bit of a distance away. Now, there is an early voting site about five minutes away.

2026 is an important election. Voting is one of the basic civic duties of each American citizen. Some people are loath to accept that they have any such duties. I disagree. Selfish people. 

(I commented online that I try to be humble and don't like to judge other people too harshly. 

I was discussing a television character. Got to be some extended deal about how I was full of myself and trying to handwave bad people. It was silly.) 

New York has state elections. The biggest is the governor. Kathy Hochul for the win!

We have congressional elections. Local ballot measures. And local judicial elections. 

I voted Working Families whenever possible, except for governor (Democratic). Democratic, otherwise. 

The ballot measures, overall, look okay. Nonetheless, I think they are inappropriate things for voters to decide. I voted "no" on each on principle.

Ballot measures can be a helpful way for voters to avoid legislative bottlenecks. Abortion measures come to mind. The public's input can also be useful on other matters. Sometimes, a state ballot measure is simply required because the state constitution so requires. 

The specific issues, here, however, do not appear to be of that character. They are somewhat technical judgment calls best left to city council. 

I vote write-in for judicial races. The link helpfully provides information, including on the specific duties of each judge. But the average voter isn't aware. 

The voting guide (which I did not receive in the mail, though I saw one in the library) doesn't even talk about judicial races. There are also regularly no actual choices. Judges regularly run unopposed. 

What is the point? The New York City Bar Association summary notes the Bronx surrogate judicial candidate is "not approved." 

Why? Seems relevent. What voter knows? 

The website does not analyze each vote. They provide basic information on the selection process. I guess that she didn't fill out the questionnaire. 

I found this website. She has a mixed record. Maybe, as a matter of caution, I would not vote for her. That would entail either a blank or a write-in. 

But I really don't know enough to say. It is just absurd on some level to have races with so little information. 

For an average race, you at least have party lines in the general election. I would simply let a judicial review committee and/or the legislature handle this. 

On some level, even allowing the lowly voter (me) to have a chance to vote their conscience in this fashion is a charming reflection of our democracy. 

Plus, we get free stickers and that pen/stylus thing. What more can you ask?

How about Democratic control of Congress? Ha ha. 

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. 

Televising Executions vs. Originalism

Secretary of Defense Pete Hegseth announced that military personnel would execute Nidal Hasan, who killed 13 people in the 2009 Fort Hood shooting, by firing squad on December 3, 2026. 

Biden's commutation left open those on military death row. Hegseth said it would be livestreamed for public viewing. 

Trump decided public opposition (even Vance didn't want to watch) was strong enough not to agree. It is an example of the public applying constitutional norms. An important check.

Yes, it would probably have been upheld in court. Maybe correctly.

Trump v. Trees

A snapshot of Trump abuse of the justice system. 

SCOTUS Watch

The post-holiday Order List included some "grants," including one case involving obtaining information about DOGE. A "miscellaneous order" seems not noteworthy. 

A long-time prisoner allegedly murdered specifically to be put to death. Talk about hard cases. The whole system is problematic. Plus, places without the death penalty handle such situations. 

It took around seventeen years, but Florida did so today. No final appeal. Florida cancelled a more iffy execution involving an older prisoner with health problems. 

White Sox Blows It

White Sox lost their divisional lead. They had a shot at a bye. They had to play an extra round in another ballpark. 

But that was against the Astros. Who were .500. White Sox won two and advanced. Win a game and effectively they had home field advantage once more. They won two.

Had two shots in front of their home fans. Lost both games. One more shot in Cleveland. Lost it. What a crappy way to end a great season. Win four in a row. Lose three in a row and be eliminated.