SCOTUS Watch: Sotomayor Dissents a Lot Edition

Order List

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

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

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

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

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

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

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

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

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

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

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

Oral Argument

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

Rick Hasen has more.

Upcoming

We should have one or more opinions on Wednesday.

More Illegal Boat Strikes

The ongoing illegal monstrosity that the Republican Congress is just letting Trump unconstitutionally carry out in Iran should not lead us to forget other things.

A U.S. military strike on a vessel suspected [SUSPECTED!] of hauling drugs prompted the rescue of a sole survivor, the second known instance of a successful recovery in a campaign that has killed dozens of people.

U.S. forces struck a “low profile” vessel Thursday in the Eastern Pacific transiting a common smuggling route, according to a post on social media by U.S. Southern Command, which oversees the ongoing boat strike campaign against alleged smugglers in Latin America. The strike was the 46th since early September, officials said, totaling 159 people killed.

This is still going on. 159 people killed. Murdered.

RIP Robert Mueller

Robert Mueller, an honorable public servant, has died. The usual comments and responses will now come.

Trump metaphorically pissing on his grave is understandable. Some of the comments? Understandable but depressing.

People had some fantasy vision of "Mueller Time," regarding a Sessions Justice Department (Trump 1.0) appointment, who was acting within the limits of that role. This includes not indicting sitting presidents.

[Trump was very concerned behind the scenes that the investigation would screw him over. It would end his presidency! The crybaby eventually realized how much the system was stacked in his favor.] 

OTOH, can you imagine someone like him being appointed now and Pam Bondi recusing herself?

He still offered a "roadmap" of sorts. He didn't have to do so. It was the responsibility of others, not taken, to carry things through. This includes a report that provided repeated evidence of wrongdoing, including the Trump campaign (family members like Kushner, too) engaging with Russian agents. 

These actions were consistent with President Trump’s previous invitations of foreign interference in United States elections.

[First impeachment.]

Impeachment managers repeatedly warned us about what Trump would do if you didn't stop him. People have this fantasy image of "daddy" saving us, when they are not sneering at the idea of relying on them.

Mueller honorably served, including leading an investigation akin to that of Jack Smith. Smith, to be clear, investigated a former president. He had more discretion to prosecute, as well as having more serious crimes to use to do so. 

OTOH, when Trump was re-elected, to the shame of "We the People," Jack Smith knew the game was up. 

The video is when celebrities reenacted the Mueller Report. Powerful stuff. RIP and don't join with Trump pissing on his grave. Thanks. 

Does Bruen Violate the Tenth Amendment?

Eric Segall reviews a new article co-written by Jake Charles (a law professor with an expertise in Second Amendment issues who teaches at Pepperdine, that is, not a liberal school) that comes at criticism of Bruen from a state rights lens. 

The opinion, limited by a later case, uses a historical analogue approach. Modern day regulations need to overlap with regulations, and there have to be enough examples (how many?) to satisfy the justices, from the founding era. Not totally clear if that would be 1791 (2A) or 1868 (14A).  

This approach can be challenged on multiple grounds. A major criticism is that it is simply not practical. It has led to confusion in the lower courts. There is also the general problem with originalist-like approaches. Things change. We cannot sensibly be tied to what was done in the distant past.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The article frames things in a Tenth Amendment fashion. The Tenth Amendment is a statement of principle. Applying that principle can take us in various directions. It overall promotes federalism, including protecting state power in different ways.

The authors argue that federalism includes the principle that states have the discretion to make policy. This discretion is limited by individual rights and congressional powers. This is not about a criticism of the RKBA overall. It is about the discretion states have to regulate, with the right taken for granted.

States did not regulate in the past for a variety of reasons. They were limited by constitutional requirements. A state cannot censor based on viewpoint. It cannot favor certain religious sects.

OTOH, just because they did not regulate did not mean they could not regulate. Bruen, along with other misplaced "history and tradition" tests, wrongly limit state discretion based on what they did not do. 

Why didn't they do it? A range of reasons, including different times requiring different rules. This is where a "living" (the horror!) approach reaffirms basic constitutional principles.  States, over time, develop new ways of doing things, learning as they go along. That is fine. The Constitution allows it. 

Eric Segall offers that the argument is open-ended. It does provide a basic rule that guards against misguided interference with state power. Depending on the specifics, it can apply to cases (think abortion rights) that liberals like. But that also goes to underlining rights. 

Things often can be framed in different ways. Lawyers know this. They can acknowledge or use certain frames to advance their goals. Some frames are appreciated by certain people. 

Conservatives regularly support state rights. Liberals call out their hypocrisy for selectively supporting them. Conservatives will tend to explain, "This is different." It can be helpful to use the same language and debate details.

The article frames things as a matter of Tenth Amendment rights and powers. The people have the right to pass certain types of laws and have the discretion to do so. 

This is not about a dislike of guns. It is about how artificial restraints interfere with legitimate state power. The argument fits in with "originalist" arguments. The article has plenty of 19th-century quotes to back up its arguments. History, like religion, is not just something for conservatives. 

The sloppiness of Bruen (as Segall notes) is not something to ignore. It's part of the overall discussion. If you like the RKBA, effectively upholding it should be a concern of yours. A sloppy approach, one that has to be treated like a round peg in a square hole to sensibly apply, is rather counterproductive. 

The article, however, is not just a disagreement with the opinion or statement on why it is impractical. It provides a federalism-friendly approach that brings together both sides.  

One criticism that I saw suggests it wrongly tries to argue that it provides a novel new theory. If you want to say it doesn't say anything special, that's fine. Articles can reinforce old principles, sometimes in slightly different ways.

It does not, as the person claimed, merely disagree with Bruen. It notes upfront that there are different ways to disagree with the opinion. It frames things a certain way. It grants RKBA. It honors federalism. 

The article is a helpful approach to provide a reasonable criticism of the current law that offers a sane path. It has implications that will not please all critics. For instance, if you are not a fan of gun rights or are rather absolutist about upholding them.* 

Overall, I think it is a helpful approach. Not magic. 

==

Note:  A true "history and tradition" approach to rights would leave open a lot of regulations, more than most people support under current law. 

Many people selectively realize this. They will accept more rights when applying the Constitution today, even if originally people would not think them necessary in one area of the law, but not others. 

Then, it will be "no one would have thought about that!" Cf. corporate speech with LGBTQ rights. 

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. 

Think Big

A local paper published my letter to the editor:

Bronx: We need major changes, including term limits for Supreme Court justices and limits on presidential power. This might require changing the Constitution. But we should think big. We had no amendments for more than 30 years. It’s time. 

Really 50 years. The 27A is a joke. 

Daughter of Daring

I used to keep track of and watch the Oscars. Now, I am barely familiar with some of the films. Instead, I read Daughter of Daring, which is not only a biography of a stuntwoman/actor, but a history of film and Hollywood (with a woman's focus) overall. 

I have also read her Creature from the Black Lagoon book. Both are good. Down-to-earth style, while quite detailed. Fun footnotes. 

ETA: One interesting tidbit is how cliffhanger serials and other films attracted women viewers as escapes and an example of women having agency, including for lower class women.

Venezuela Wins World Baseball Classic

The World Baseball Classic divides baseball players into international teams (Puerto Rico has a team). Italy was a surprise hit this time. They made it to the semifinals. Overall, it went well.

The U.S. team looked a bit stale, but made it to the finals. A promising Mets rookie started the game and did pretty well. Venezuela won in the ninth, 3-2. They were very excited to do so.

Blondie Plays Cupid

A retro channel shows "Blondie" films (1940s; there was also a couple of television series based on the comic strip, plus a radio show) each Saturday morning. I talked about this over the years. 

The 28 films are of mixed quality. For whatever reason, one film is not shown in the rotation (about a "haunted" house). Blondie Plays Cupid is a good one.

The film is effectively a series of vignettes. It starts with the Fourth of July coming up. Blondie is not a fan of Dagwood and Baby Dumpling's fireworks. 

She wants to go somewhere quiet. How about her relatives in the country? Some home and office scenes (where a plan to trick Dagwood backfires; the coworker involved is played by someone else in later films) take place. 

Then, an amusing scene on the train, with a familiar face (the grumpy railroad executive on Petticoat Junction; the actor was in lots of character roles). Fans of old shows and films will see other familiar faces throughout the series. 

The busy film then shifts to the country, where a young Glenn Ford offers them a ride. That's where the title drop comes in -- he has fallen in love with the neighbor's daughter, but the father opposes the match. The justice of the peace gives an amusing performance. 

More hijinks and things end (as they always do) happily. The film is well-paced and well-written, with the interrelated scenes fitting together nicely. 

One amusing bit of the "I see what they did there" variety involves Baby Dumpling winding up in a haystack after a joyride. Something is poking him. Turns out to be a needle. In a haystack.

There is also a cute final joke. The last bit involves something that would be rather serious (painful burns) if we took it seriously. The Wikipedia page at the moment somewhat misleadingly notes how things wound up. They don't simply enjoy the end of their vacation peacefully in the country.  

The films have various expected components, including the postman getting hit by Dagwood (the film has a twist, including him having a chance to get Dagwood back) during an early scene involving the family having breakfast. The smart aleck neighborhood kid usually gets involved somehow.  

Dagwood bumbles a lot, which at some point is a bit tedious. There is also some stereotypical Blondie stuff, including a bit too many scenes of her being jealous or upset (often arising from some misunderstanding) for some reason. She is not as sexy looking as in the comic strip.

Blondie started as a flapper-type character, while Dagwood was a rich man's son who gave up his money out of love. The films skip that backstory.

The strips, at least when I read them much later, also had them being close friends with their neighbors. This film has Blondie talking to the wife on the phone. Most of the films, however, skip them, and one late film has the neighbors annoyed at Dagwood.

The family grows over the decade or so of the films. "Baby Dumpling" becomes Alexander. And, they have a daughter named Cookie. The boss is "J.C" Dithers, though he is replaced later in the series except for the last film. That is, Julius Caesar Dithers.

Today is the Ides of March. It's all connected.