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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, November 25, 2019

SCOTUS Watch (RBG Is Okay!)

Football: Panthers had a shot to go ahead at the two minute warning but missed a chip shot and a penalty flag was picked up to add insult. Saints then marched on to victory. Another three "NY" early game day. Jets had a laugher vs. the Raiders (opening FG and nothing else), Bears offense good enough to beat Giants and Bills now 8-3 with their win.

Supreme Court took another case for argument on Friday:
The question arises in a lawsuit filed by Muslim men – who are either U.S. citizens or lawful permanent residents – who contend that they were placed on the “no fly” list after they refused, based at least in part on their religious beliefs, to provide information about other Muslims to the FBI in terrorism-related investigations. The men sued the FBI agents, claiming that the retaliation against them violated RFRA, which generally bars the government from placing a “substantial burden” on an individual’s exercise of his religion unless the government can show that the burden advances a compelling interest.

The district court dismissed the men’s claims, but the U.S. Court of Appeals for the 2nd Circuit reinstated them. It ruled that a provision in RFRA that enables litigants to “obtain appropriate relief against a government” allows lawsuits for money damages against federal employees who are sued in their individual, rather than official, capacity.
Okay, so it's the weekend, and we can wait for Monday orders before the holiday or something.  Nah.  We have a press release from the gods, so to speak, which these days is a bit worrisome (main subject matters tend to be health related with another subject being Trump nominees) about RBG's health. She "was admitted to Johns Hopkins Hospital in Baltimore, Maryland, last night after experiencing chills and fever earlier in the day," but apparently is okay now.  Compare this to more opaque trip for some medical matter Trump had in recent days.  The transparency is somewhat hard for the health but appreciated though the cynical might think she isn't telling us every single thing.

(This sort of thing makes people again think about if she should have retired, after Stevens retired at 90. On some level, such spilled milk is just that, but the overall question doesn't go away like many others and will likely return in some form again and again. I personally had mixed feelings about her decision, at the time influenced near the end with expecting Clinton to win. For now, we are left with hoping she stays healthy enough to last until Trump cannot replace her. The idea of fixed terms does seem appropriate though retirement decisions will still arise.)

Orders are usually boring but along with the usual stuff the pre-holiday one was one of those where various justices provided statements of interest and the first per curiam of the term was dropped. The justices sent back for further review (but other than RBG -- doing okay! -- the implication is that it deserves to go down) an Alaskan campaign finance regulation.  As losing goes, Rick Hasen said this is probably the softest blow one could ask for. The House subpoena case is still lingering without further action after the deadline for a response late last week passed.

Justice Alito was the sole justice who wanted to take a defamation suit and the fact it involved National Review vs. a climate scientist surely had nothing to do with it.  Sotomayor tossed in one of her concerned statements, here about possible bias of a judge in a capital murder trial.  Kavanaugh, who did not take part in the big Gundy delegation case (re-hearing denied; he did not take part in the decision), did praise Gorsuch's dissent (found wanting by those who know the history) and flagged he would likely be the fifth vote for some new test, at least if a majority of the relevant panel deems the policy question "major" enough, to tighten up the rules.  It is not usually a major area people think about, but an amendment addressing agencies would be to me more appropriate than the ERA (mostly symbolic) or something that overrules Citizens United (likely to open a can of worms or be phrased in a way of limited scope). 

The Supreme Court will come back in the first week of December for some more oral arguments, including the big Second Amendment case that if they handle it right (as compared to right wing) would be to declare the challenge moot.  There is an execution scheduled for next week. As seen by the summary at that link, the federal executions scheduled for next month have been held up on a claim the feds aren't follow statutory rules regarding execution protocols and separately (Mitchell) on a discrimination challenge.  Have we pardoned the turkey yet?

ETA: As with Roberts order delaying things, we get a late bit of news here and the Supreme Court holds up the House subpoena to get accounting records pending a cert. petition (must be filed by December 5th) being acted upon.  The lower court deemed the argument against it weak and turned down an attempt to have the decision argued en banc.

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