Update: For whatever reason, SCOTUS announced mid-afternoon (did they forget about it before?) that for now the Texas abortion opinion is stayed with four justices dissenting without comment. There is an outstanding cert. petition involving a Mississippi case (see cert. watch at SCOTUSBlog) that is likely covered by tomorrow's orders.
Also, there is an order (with only Sotomayor dissenting without comment, making it unclear what her issue is) involving an ongoing dispute involving the contraceptive mandate and religious exceptions. Notable is that it says the order does not affect the ultimate ability of women to get contraceptives though the truth of that might be questionable especially along the margins. It seems overall fairly contraceptive mandate friendly.
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Well ... The SSM did not end the passion at the Court, that's for darn sure. FOUR justices made statements regarding the lethal injection case (announced by Alito -- like in the Hobby Lobby case, certain parties surely were like "had to be him, huh?") with Sotomayor with the main dissent, Breyer (with Ginsburg) on record now as being doubtful the death penalty is constitutional and Scalia (though Thomas wrote a better reply with less snark; he did as with SSM join Scalia) there to reply to Breyer. I will not provide links -- see SCOTUSBlog, Election Law Blog et. al. for commentary and the SCOTUS website for links as well.
The lethal injection result is not really surprising though Alito (he of "guerrilla" abolitionist movements) getting five full votes here is notable. The particular means (with Sotomayor providing a strong dissent) is not clearly a problem, the district court findings here of special import. This still leaves some discretion to district judges that find differently. An added wrinkle is the idea that if a method is opposed, the claimants have to show that there is an alternative available, since the death penalty has long been held unconstitutional. The majority rejects the implication this means any horrible means is warranted if there is no alternative. So, there must be some limiting principle of sorts there.
But, Sotomayor makes a good argument as to the logic of the majority's opinion and is right that the state is under no compulsion at all costs to execute in the first place. Some states don't have the death penalty, after all, so it seems to be a matter of policy discretion. The majority, some members in particular (Kennedy is part of an ongoing movement to restrict it), appear to think the state is obligated to execute certain people. And, the argument that the Constitution specifically provides procedures regarding depriving "life" does not end matters. It has to be done with "due process of law" and the Eighth Amendment is another check as is things like equal protection of the law. If such things are not met, no, executions are not allowed. And, overall, as to the Due Process Clause, execution is not the only means of taking life -- e.g., use of lethal force to catch convicts or use of drones in military conflicts.
I cannot assume to be able to judge who has the best case in the dispute over the evidence here but will simply note that it is likely close enough that even a tie should go to the dissent. Justice Sotomayor (with Kagan) in effect (Breyer/Ginsburg join the full dissent but the other two don't join his) assume the death penalty is constitutional, but isn't that enthusiastic about it ("but see" Breyer's dissent). Plus, it ends with the suggestion that some defendants here would rather the firing squad (nitrogen gas too novel to mention?) though noting it also leaves something to be desired. Net, this doesn't sound too supportive of capital punishment overall.
There were some orders before this though not anything to do with abortion (there will be more tomorrow). There were dissents from denial and action involving cases similar to some decided. And, with Kagan again recused, the Fisher affirmative action case is back again. Let's see how this goes. Sotomayor might have to use that dissent she allegedly wrote after all. After tomorrow, there are scheduled order days during the summer.
The remaining cases -- Arizona redistricting and EPA regulations -- also were 5-4 with Kennedy joining the liberal and conservative blocks respectively. Concurring Opinions Blog has various posts about this where the law professor went back and forth. Overall, this to me suggests that we should give the state discretion over the redistricting scheme and in the process I agree with the majority. The dissents overall seem to be somewhat academic "you might have a point" type arguments at best. Kagan's dissent in the EPA case is probably correct though unsure how important it is -- some barrier to regulations, but how much?
BTW, some first day by Steven Matz, including three hits!
Also, there is an order (with only Sotomayor dissenting without comment, making it unclear what her issue is) involving an ongoing dispute involving the contraceptive mandate and religious exceptions. Notable is that it says the order does not affect the ultimate ability of women to get contraceptives though the truth of that might be questionable especially along the margins. It seems overall fairly contraceptive mandate friendly.
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Well ... The SSM did not end the passion at the Court, that's for darn sure. FOUR justices made statements regarding the lethal injection case (announced by Alito -- like in the Hobby Lobby case, certain parties surely were like "had to be him, huh?") with Sotomayor with the main dissent, Breyer (with Ginsburg) on record now as being doubtful the death penalty is constitutional and Scalia (though Thomas wrote a better reply with less snark; he did as with SSM join Scalia) there to reply to Breyer. I will not provide links -- see SCOTUSBlog, Election Law Blog et. al. for commentary and the SCOTUS website for links as well.
The lethal injection result is not really surprising though Alito (he of "guerrilla" abolitionist movements) getting five full votes here is notable. The particular means (with Sotomayor providing a strong dissent) is not clearly a problem, the district court findings here of special import. This still leaves some discretion to district judges that find differently. An added wrinkle is the idea that if a method is opposed, the claimants have to show that there is an alternative available, since the death penalty has long been held unconstitutional. The majority rejects the implication this means any horrible means is warranted if there is no alternative. So, there must be some limiting principle of sorts there.
But, Sotomayor makes a good argument as to the logic of the majority's opinion and is right that the state is under no compulsion at all costs to execute in the first place. Some states don't have the death penalty, after all, so it seems to be a matter of policy discretion. The majority, some members in particular (Kennedy is part of an ongoing movement to restrict it), appear to think the state is obligated to execute certain people. And, the argument that the Constitution specifically provides procedures regarding depriving "life" does not end matters. It has to be done with "due process of law" and the Eighth Amendment is another check as is things like equal protection of the law. If such things are not met, no, executions are not allowed. And, overall, as to the Due Process Clause, execution is not the only means of taking life -- e.g., use of lethal force to catch convicts or use of drones in military conflicts.
I cannot assume to be able to judge who has the best case in the dispute over the evidence here but will simply note that it is likely close enough that even a tie should go to the dissent. Justice Sotomayor (with Kagan) in effect (Breyer/Ginsburg join the full dissent but the other two don't join his) assume the death penalty is constitutional, but isn't that enthusiastic about it ("but see" Breyer's dissent). Plus, it ends with the suggestion that some defendants here would rather the firing squad (nitrogen gas too novel to mention?) though noting it also leaves something to be desired. Net, this doesn't sound too supportive of capital punishment overall.
There were some orders before this though not anything to do with abortion (there will be more tomorrow). There were dissents from denial and action involving cases similar to some decided. And, with Kagan again recused, the Fisher affirmative action case is back again. Let's see how this goes. Sotomayor might have to use that dissent she allegedly wrote after all. After tomorrow, there are scheduled order days during the summer.
The remaining cases -- Arizona redistricting and EPA regulations -- also were 5-4 with Kennedy joining the liberal and conservative blocks respectively. Concurring Opinions Blog has various posts about this where the law professor went back and forth. Overall, this to me suggests that we should give the state discretion over the redistricting scheme and in the process I agree with the majority. The dissents overall seem to be somewhat academic "you might have a point" type arguments at best. Kagan's dissent in the EPA case is probably correct though unsure how important it is -- some barrier to regulations, but how much?
BTW, some first day by Steven Matz, including three hits!
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