[SCOTUS later separately released an order spelling out a schedule for briefs in the GLBT discrimination cases. Amy Howe of SCOTUSBlog told me per a question on Twitter that "it's just about the timing of the briefs, presumably so that the
parties with the same positions wind up filing their briefs at the same
time (even if they are petitioners in some cases and respondents in
others)." I thought it a bit curious they singled it out.]
Some drama in the orders (I will wait to address the death penalty matters until later in the week when two executions are due to occur) and opinions. Kavanaugh playing a key role.
There does not appear to have been any major developments regarding grants, a few hot button cases involving abortion and immigration still pending. Roberts with the conservatives, minus Gorsuch, dissents from a "GVR" that the solicitor general requested in an Armed Career Criminal Act (a repeat replayer in recent terms). This is one of various cases where Kavanaugh and Gorsuch split on details. See also, another dissent from denial by Alito (with Thomas and Kavanaugh) wishing to take a First Amendment case involving a nasty complaint by a prisoner. I will skip the death penalty orders, but briefly, Kavanaugh (with Roberts) either stays out of the nastiness or dissents from it.
Kavanaugh provided the fifth vote with the liberals (now the only one who has not done that among the conservatives is Alito) to allow an anti-trust lawsuit against Apple to go forward. Gorusch led the dissenters. The case is of some significance but the specific opinion is of moderate note. It's a reminder that the justices aren't always going to be 5-4 in typical directions. The law, especially statutory interpretation, is not that clear-cut. Still, there are general trends, especially on hot button issues, and people are not just imagining an ideological partisan split here.
Thomas wrote two opinions, one a typical one for him -- a rather boring false claims statutory dispute (with no separate opinion). The other is basically the big case of the day if one with apparent limited reach. Concern here is that it overturned a forty year old precedent (written by Stevens but joined by Powell, suggesting it wasn't really a threat to states rights) involving an ideological issue -- state immunity. Breyer via a crisp dissent wrote for the liberals in a way that some see in effect as a subtweet about Roe:
And, even if the matter is open to dispute, not enough to overturn forty years of precedent. This is not a matter of states not having some constitutional securities or there being no "spirit" of the Constitution here among its bare text on the matter. OTOH, it would be nice if supporters if the result did not sneer at "penumbras and emanations" in other cases. As Breyer notes, it is that as applied in this case, states should have discretion. Precedents are not sacrosanct. But, no good grounds exist here.
I would add that such separation of powers and federalism questions should be given more room to be decided as political questions than if some sole individual's right is at issue. Political institutions have more power to defend themselves and the overall structure set forth provides a means to check and balance. See, e..g, Footnote Four. If the Constitution expressly requires something here, or it is strongly sound to think so (e.g., perhaps decisions regarding placement of state capitols, to take an old case), fine. Also, though the precedents to me rest on sand, long practice suggests we are stuck with a breadth of state immunity law. This, however, was not required to be tossed in. Again, if anything, it can be said to hurt state sovereignty as much as aid.
Planned Parenthood v. Casey is cited by Breyer, which some basically cite as a red flag. Irin Carmon on Twitter said in effect that he is telling us to be more concerned about the U.S. Senate (reference to new justices having new views). Casey also (via Souter) had a strong section on the importance of stare decisis, the explicit reason for the citation here, though the justices there did not think that blocked tweaking the rules some. Again, the law does change here, in part by changing judicial personnel. McConnell et. al. surely knew/know that. Oh how they do.
ETA: The SCOTUSBlog summary sort of tones down the drama some. It does note the Thomas lax approach to overturning a long held precedent seems like something Kavanaugh (who has spoken separately repeatedly so far to state his views) or Roberts might be concerned about.
There is a certain foregone conclusion to the ruling given recent federalism trends though people have also noted this specific somewhat atypical -- the commentary notes the very fact this is a "three-peat" is because so few cases tee up the issues -- practice can fit comfortably into the greater whole (as noted here as well). The commentary does suggest the immediate stakes seem low though intelligent court watchers do seem to think there is a possible foreshadowing nature to the whole thing.
Finally, the commentary underlines that on federalism issues, the conservatives are not strict textualists. This has led to some sarcasm but at this point taking literally some of their rhetoric is silly. In practice, their actions put forth a more complicated wider whole. It is true that at times it would be appreciated if they tone down the rhetoric and respect the wider whole of their opposite numbers equally well.
Some drama in the orders (I will wait to address the death penalty matters until later in the week when two executions are due to occur) and opinions. Kavanaugh playing a key role.
There does not appear to have been any major developments regarding grants, a few hot button cases involving abortion and immigration still pending. Roberts with the conservatives, minus Gorsuch, dissents from a "GVR" that the solicitor general requested in an Armed Career Criminal Act (a repeat replayer in recent terms). This is one of various cases where Kavanaugh and Gorsuch split on details. See also, another dissent from denial by Alito (with Thomas and Kavanaugh) wishing to take a First Amendment case involving a nasty complaint by a prisoner. I will skip the death penalty orders, but briefly, Kavanaugh (with Roberts) either stays out of the nastiness or dissents from it.
Kavanaugh provided the fifth vote with the liberals (now the only one who has not done that among the conservatives is Alito) to allow an anti-trust lawsuit against Apple to go forward. Gorusch led the dissenters. The case is of some significance but the specific opinion is of moderate note. It's a reminder that the justices aren't always going to be 5-4 in typical directions. The law, especially statutory interpretation, is not that clear-cut. Still, there are general trends, especially on hot button issues, and people are not just imagining an ideological partisan split here.
Thomas wrote two opinions, one a typical one for him -- a rather boring false claims statutory dispute (with no separate opinion). The other is basically the big case of the day if one with apparent limited reach. Concern here is that it overturned a forty year old precedent (written by Stevens but joined by Powell, suggesting it wasn't really a threat to states rights) involving an ideological issue -- state immunity. Breyer via a crisp dissent wrote for the liberals in a way that some see in effect as a subtweet about Roe:
Can a private citizen sue one State in the courts of another? Normally the answer to this question is no, because the State where the suit is brought will choose to grant its sister States immunity. But the question here is whether the Federal Constitution requires each State to grant its sister States immunity, or whether the Constitution instead permits a State to grant or deny its sister States immunity as it choose.Breyer, as has been the rule when the liberals (especially Stevens, Souter and Breyer) wrote in these federalism cases (repeatedly in dissent), makes a strong case even on the majority's own ground. Stevens in the case forty years ago had history on his side regarding not declaring it unconstitutional for a state to allow another state to be sued without its consent in their own courts. That is, a state should be able to -- as a matter of control of their own courts (thus federalism works both ways here) -- be able to treat another state like another litigant here.
And, even if the matter is open to dispute, not enough to overturn forty years of precedent. This is not a matter of states not having some constitutional securities or there being no "spirit" of the Constitution here among its bare text on the matter. OTOH, it would be nice if supporters if the result did not sneer at "penumbras and emanations" in other cases. As Breyer notes, it is that as applied in this case, states should have discretion. Precedents are not sacrosanct. But, no good grounds exist here.
I would add that such separation of powers and federalism questions should be given more room to be decided as political questions than if some sole individual's right is at issue. Political institutions have more power to defend themselves and the overall structure set forth provides a means to check and balance. See, e..g, Footnote Four. If the Constitution expressly requires something here, or it is strongly sound to think so (e.g., perhaps decisions regarding placement of state capitols, to take an old case), fine. Also, though the precedents to me rest on sand, long practice suggests we are stuck with a breadth of state immunity law. This, however, was not required to be tossed in. Again, if anything, it can be said to hurt state sovereignty as much as aid.
Planned Parenthood v. Casey is cited by Breyer, which some basically cite as a red flag. Irin Carmon on Twitter said in effect that he is telling us to be more concerned about the U.S. Senate (reference to new justices having new views). Casey also (via Souter) had a strong section on the importance of stare decisis, the explicit reason for the citation here, though the justices there did not think that blocked tweaking the rules some. Again, the law does change here, in part by changing judicial personnel. McConnell et. al. surely knew/know that. Oh how they do.
ETA: The SCOTUSBlog summary sort of tones down the drama some. It does note the Thomas lax approach to overturning a long held precedent seems like something Kavanaugh (who has spoken separately repeatedly so far to state his views) or Roberts might be concerned about.
There is a certain foregone conclusion to the ruling given recent federalism trends though people have also noted this specific somewhat atypical -- the commentary notes the very fact this is a "three-peat" is because so few cases tee up the issues -- practice can fit comfortably into the greater whole (as noted here as well). The commentary does suggest the immediate stakes seem low though intelligent court watchers do seem to think there is a possible foreshadowing nature to the whole thing.
Finally, the commentary underlines that on federalism issues, the conservatives are not strict textualists. This has led to some sarcasm but at this point taking literally some of their rhetoric is silly. In practice, their actions put forth a more complicated wider whole. It is true that at times it would be appreciated if they tone down the rhetoric and respect the wider whole of their opposite numbers equally well.
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Thanks for your .02!