And Also: A question was posed in recent town halls about convicted inmates voting in prison, perhaps originally because Sanders' Vermont is one of three places (Maine and Puerto Rico) that allow it here. The phrasing ("even the Boston Marathon bomber") was a bit asinine, but it is a serious question writ large, especially given the breadth of felony disenfranchisement. Plus, as shown by a link here, foreign practice is rather welcoming, especially for some inmates.
William Baude has written about the "shadow docket" on the Supreme Court, including their decision to summarily decide certain types of cases by per curiam and handling of stays. It has been long argued that "merits" cases (that receive full argument and so forth) aren't treated in a totally aboveboard matter as is. The opinions, e.g., often are compromises and/or ideological affairs that are not fully honest about what they are doing. Orders are even more thinly transparent. Many, like last night's execution matter, simply refuse to take the case or reject what is requested. At most, we get a brief statement.*
Some accounts provide a peak behind the scenes. Justice Breyer's dissent to a recent order rejecting a stay to an execution (covered on this blog) was a rare case of the justices themselves doing so. Justice Thomas in one dissent from denial complained the justices weren't taking seriously Second Amendment cases. He laid it on thick, but going on for about a decade (except in a narrow instance) without doing so (until Kennedy left the Court) is telling. SCOTUSBlog also has a "relist" feature that looks at cases held back for multiple conferences. These cases seem to interest one or more justices but for some reason a final decision is not made.
The transgender and sexual orientation civil rights cases just taken (referenced earlier in the week) was "relisted" ten times. Or, as Linda Greenhouse noted in a column more optimistic than a couple liberal court watchers (cited): "The court had the three petitions under active review beginning in early January, and the cases were taken up 11 times at the justices’ weekly private conference." Noting one of the cert grants was done back in May 2018, one law professor cried foul at the delay.
But, the final grant was done without comment. This as Greenhouse convincingly noted suggests negotiation. Citing Justice Souter's move to lower the temperature in the question presented in the Casey abortion case, it also to her seems promising. Up to a point, I would tend to agree with her. I think it appropriate for more clarity in the "shadow docket" in various instances, hints and selective usage of per curiams to me seems a bit shady. Also, at least in death penalty cases, and probably certain other very important matters, more clarity should be given to orders. Ditto "DIGs." Still, there is room for some behind the scenes negotiation, including for prudential reasons impolitic to say aloud. Yes, courts are political actors too.
Greenhouse argues the energy was spent on the trans case and again what is public (the tip of the iceberg) can be used to make reasonable hypothesizes on what was done behind the scenes. She compares the challenger's requested questions and the actual questions presented:
The sexual orientation questions were left unchanged:
Time will tell how right Greenhouse is, but it was an insightful piece.
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* In my discussion of last night's execution, I referenced briefing done by the inmate's lawyers. It is amazing really how much "last minute" briefing in done on both sides here. The docket number provided even for the stream of rejected grants provides a means to look into the claims made. For instance, the Supreme Court journalist Kimberly Robinson -- a good Twitter follow -- at times summarizes the cases not granted.
William Baude has written about the "shadow docket" on the Supreme Court, including their decision to summarily decide certain types of cases by per curiam and handling of stays. It has been long argued that "merits" cases (that receive full argument and so forth) aren't treated in a totally aboveboard matter as is. The opinions, e.g., often are compromises and/or ideological affairs that are not fully honest about what they are doing. Orders are even more thinly transparent. Many, like last night's execution matter, simply refuse to take the case or reject what is requested. At most, we get a brief statement.*
Some accounts provide a peak behind the scenes. Justice Breyer's dissent to a recent order rejecting a stay to an execution (covered on this blog) was a rare case of the justices themselves doing so. Justice Thomas in one dissent from denial complained the justices weren't taking seriously Second Amendment cases. He laid it on thick, but going on for about a decade (except in a narrow instance) without doing so (until Kennedy left the Court) is telling. SCOTUSBlog also has a "relist" feature that looks at cases held back for multiple conferences. These cases seem to interest one or more justices but for some reason a final decision is not made.
The transgender and sexual orientation civil rights cases just taken (referenced earlier in the week) was "relisted" ten times. Or, as Linda Greenhouse noted in a column more optimistic than a couple liberal court watchers (cited): "The court had the three petitions under active review beginning in early January, and the cases were taken up 11 times at the justices’ weekly private conference." Noting one of the cert grants was done back in May 2018, one law professor cried foul at the delay.
But, the final grant was done without comment. This as Greenhouse convincingly noted suggests negotiation. Citing Justice Souter's move to lower the temperature in the question presented in the Casey abortion case, it also to her seems promising. Up to a point, I would tend to agree with her. I think it appropriate for more clarity in the "shadow docket" in various instances, hints and selective usage of per curiams to me seems a bit shady. Also, at least in death penalty cases, and probably certain other very important matters, more clarity should be given to orders. Ditto "DIGs." Still, there is room for some behind the scenes negotiation, including for prudential reasons impolitic to say aloud. Yes, courts are political actors too.
Greenhouse argues the energy was spent on the trans case and again what is public (the tip of the iceberg) can be used to make reasonable hypothesizes on what was done behind the scenes. She compares the challenger's requested questions and the actual questions presented:
“1. Whether the word ‘sex’ in Title VII’s prohibition on discrimination ‘because of sex’ meant ‘gender identity’ and included ‘transgender status’ when Congress enacted Title VII in 1964.Price Waterhouse turned on sexual stereotyping, there a woman claimed that she was deemed not to be feminine enough. There is reason to be somewhat hopeful Roberts or Kavanaugh (those who despise him will at times be driven to hope for his vote) would apply that to transgender people, at least in some cases. The key difference here is the absence of "gender identity," probably a more open category. Note even the reference to the case originally was tied to "gender identity" and "sex-specific policies," now changed to "sex stereotyping," full stop.
“2. Whether Price Waterhouse v. Hopkins prohibits employers from applying sex-specific policies according to their employee’s sex rather than their gender identity.”
And here is the single question that the justices have chosen to answer instead:
“Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.”
The sexual orientation questions were left unchanged:
“Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination ‘because of … sex’ within the meaning of Title VII. …” The Altitude Express petition’s question is only slightly different: “Whether the prohibition in Title VII of the Civil Rights Act of 1964 … against employment discrimination ‘because of … sex’ encompasses discrimination based on an individual’s sexual orientation.”[two cases] This suggests the power of the justices to frame the questions they decide (you know, like umpires do) and not just rely on what is provided by the litigants. The census question case, e.g., was expanded to cover more ground, apparently to settle the issue before the government has to start the 2020 census procedure. A "privileges or immunities" question that only Justice Thomas seemed to care about was included in the incorporation of the Second Amendment case. OTOH, when the Supreme Court (5-4) upheld (on a facial challenge; as applied challenges left open) a federal abortion procedure ban, the question of its legitimacy under the Commerce Clause was not covered. Scalia/Thomas noted this in a concurrence, avoiding a need to face up to their federalist principles.
Time will tell how right Greenhouse is, but it was an insightful piece.
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* In my discussion of last night's execution, I referenced briefing done by the inmate's lawyers. It is amazing really how much "last minute" briefing in done on both sides here. The docket number provided even for the stream of rejected grants provides a means to look into the claims made. For instance, the Supreme Court journalist Kimberly Robinson -- a good Twitter follow -- at times summarizes the cases not granted.
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