Some More Executions

November has some executions, including multiple days when more than one is scheduled. 

Perspective should be placed. A relatively "heavy" month still has fewer than ten executions nationwide. This article covers concerns in each of today's scheduled executions. 

Jesse Guardado was convicted of killing Jackie Malone, 75, before stealing money and other items while he was on a crack cocaine binge.

A death opponent focuses on his rehabilitation in prison. He admitted his guilt. His childhood was horrid. Other red flags. 

But I think the first part is the strongest argument. If you have the death penalty, you should repay those who help out. It's an incentive. 

Overall, this sounds like one of those cases where you understand the original sentence, but on balance, the execution is a bad idea. 

The final SCOTUS appeal, the only one for today's executions, was yet another challenge to Florida's lethal injection protocol. I don't begrudge the concern. It surely has some basis. 

But by now, no one is listening, with even the liberals silent. I don't really know why SCOTUS even took so long to hand down its pro forma order. It came down sometime after mid-afternoon today. 

Alabama plans to carry out its third execution of 2026 on Thursday evening, putting Michael Shannon Taylor to death by lethal injection almost 35 years to the day that he beat and murdered an elderly couple in Gadsden.

The twenty-year lag time is a concern. (Breyer, dissenting.) It's better than usual as compared to many recent Florida executions. Thirty-five years definitely crosses the line. 

He went AWOL and sent the message, as Jesse did, that elderly people shouldn't be nice to others. Alabama chose lethal injection because a court of appeals judgment earlier this year ruled that nitrogen gas has not been the expected panacea.

The governor's scheduling of his execution is one of her final acts. Alabama, showing its acceptance of national shame, elected Tommy Tuberville.

Jeffrey Weisheit has been sitting on death row since 2013, when he was convicted and sentenced to death for the 2010 murders of two young children, 8-year-old Alyssa Lynch and her 5-year-old brother, Caleb. The children were trapped and burned alive in their home in Evansville.

Indiana executes fewer people than Alabama and Florida. The crime is truly horrible. I use the modifier because executions occur for various reasons. 

Some arise from facts that are simply horrible to read about. The mindset required to do this brings to mind some movie sociopaths. Keeping up with all these executions is very depressing. 

The immediate concern is Christa Pike's horribly botched execution. I think she should be released into a rest home after thirty years in prison. Her lawyers are going for LWOP, which many deem a long shot. 

JW's lawyers argued that execution by lethal injection is unsafe. The state court was closely divided on the question. No SCOTUS review. 

One final thing. The Supreme Court handled a death penalty-related appeal on Wednesday. After a longer oral argument on Tuesday, this one was less than an hour long. 

One advocate appealed to the victims obtaining justice (a long prison sentence not being enough) when opposing it as frivolous. As noted in the first link, the parents split here. 

The father strongly opposes the execution. Appeals to "what about the victims" only go so far. What should we do here? Reminds me, as I noted in a comment, of a case decades ago (tempus fugit) where two brothers split on the matter. 

A person noted elsewhere, correctly, that victims do not settle the issue. The criminal justice system represents society. The civil justice system deals with personal justice. Nonetheless, people do appeal to such things, and they do so selectively. 

California

The governor commuted all the people on death row to LWOP. The state Supreme Court has to sign off on two-thirds of them. 

Overall, the death penalty is effectively dead in the state at this time. I think it's a good idea that the governor does not have carte blanche pardon power. 

President Biden did not commute every death sentence. An absolutist might be upset. I find it that hard to do so given he did commute thirty-seven, which is a lot more than anyone else. He also, unlike the governor here, acted unilaterally. 

He left three mass murderers and those on military death row (one due to die now in December) to their fates. Trump was also able to transfer a non-death-row prison to state custody, where they were executed for state crimes. 

The move today does not have much practical effect. It is symbolically powerful, especially since so many people are involved. I still don't like LWOP, which in most cases is too long. Anyway, the inmates on death row in California basically have that now. 

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, and 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" hypos. I disagreed then; I disagree now. 

Mood: Fight! Fight! Fight!

Democrats Win Nationwide, including winning back the WHOLE Congress!!!! And statewide in Texas. TEXAS!!! More here.

A Sense of Perspective About Alaska

After the NYT did a recent expose, a type of so-called "October Surprise, about the Democrat (who already won statewide in the past as a representative) running in Alaska, we are getting a lot of talk about how "despicable," etc., the dirty trick is. 

It's legal, and probably of limited value (at best; might be counterproductive after the article), but you know, bad! Overall, I think the caper (it amounts to that) was stupid. And, yes, unseemly. 

But I'm not going to get the vapors about it. Republicans had their own dirty tricks. Put aside blatantly lying in ways that in the end misled many more voters, probably, in the end. Plus, bottom line, the stakes are clear. Checking President (ugh!) Donald Trump. 

Come the fuck on, people. Get a grip. 

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. 

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The justices will be back in November.