SCOTUS didn't show up but did release orders and opinions (and not all at once; it released them on the website as it would have been ... in reverse seniority .. in person) virtually. SCOTUSBlog flagged that Supreme Court's Public Relation Office (us paeons only getting the info secondhand) notified the press that only Roberts was actually in the conference room during the Conference. (I added that last part and to continue to beat the drum, I think it should be published on the website. As to openness, Fix the Court dropped a report on the limited financial disclosures of justices.)
On the SCOTUSBlog live blog:
There were four full opinions with Kagan handling the most controversial. Gorsuch had the opinion for a racial discrimination lawsuit that received some attention, but the mostly unanimous (RBG pushed back a bit, Gorsuch dropped a footnote explaining himself and she didn't join that) result suggests the needle wasn't moved much.* In another push against the 5CA, Breyer had a 7-2 opinion (Alito/Thomas dissenting) giving immigrants something of a win to give them a chance to make their case. It is an example of how at times the Roberts Courts helps out there.
The first Kagan opinion applies sovereign immunity precedents (Breyer/RBG concurred to say they are bad, but conceded they were stuck with them as precedent) to copyright cases. Realistically, not doing so would have been a bit off, again if one is consistent. The hope there, and Kagan has been someone who supported precedent even when the result might not be what liberals like (e.g., dual sovereignty rule in double jeopardy), is that this might help later on. As seen in the First Amendment context, this is not always the case. Her opinion, well written in her readable style, honored precedent and made clear Congress could still (within limits) regulate in this area to advance the same ends. This was too much for Thomas to totally go along with.
[Breyer crankily went along and Thomas made sure to appeal to Thomas purity but Kagan's pen shined thru the majority opinion: "crystalline abrogation" .... "bankruptcy exceptionalism" ... "When does the Fourteenth Amendment care about copyright infringement?" .... "And it gets only worse." ... "digital Blackbeards" ... "prewrote our opinion." Roberts is also a good writer. Gorsuch tries too hard. The other justices are generally careful if boring drafters though their voice can shine in separate opinions. Breyer prefers functional/fact based analysis. If the author's name was removed, sometimes tossed out there as ideal, an expert often could guess who wrote it, though not always.]
The other opinion was 6-3 with the other liberals (led by Breyer in a long dissent, one that maybe in another time might be announced from the bench) upheld Kansas' (to quote SCOTUSBlog) "failure to allow a mentally ill defendant to raise such a defense does not violate the Constitution." Only a few states, as of now, are affected and Kagan argues that the alleged mentally ill defendant did have a form of an insanity defense even with the ruling. It is unclear how bad the net result will be in practice at the end of the day. So, especially if Kagan's vote helped to tone it down somewhat, it is not too surprising that she went this way. Going back to a theme, the two opinions also split on what precedent demands.
[I tossed in a link to a good preview, one that also quoted from an earlier dissent to a cert. denial on the issue with a similar 6-3 split though the earlier case cited had Kennedy in dissent supporting the more criminal defendant rights position. So, Kagan's position might not be a total surprise. Slate also has a negative article on her opinion. I am inclined to be sympathetic to the dissent, but Kagan's vote didn't really add much to the conservatives. If anything, again, I think there is a fair chance her involvement might mildly advance liberal interests long term.]
With oral arguments (and two executions) postponed, we still have a planned conference this Friday and another order day the following Monday. To toss it in there, McConnell and Kavanaugh attended a former's clerk's swearing-in ceremony. District judge in Kentucky, so perhaps an additional reason why McConnell showed up. He is in his 30s and the ABA deemed him "not qualified" because of his limited experience practicing law. Others were upset McConnell (who delayed things in the Senate over the weekend) and Kavanaugh (traveling at all) showed up. Ah. Speechwriter for Donald Rumsfeld. How charming.
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* A Nation article is more pessimistic but flags that RBG said she went along because of precedent (going along with bad precedent to protect good precedent that conservatives might want to dispose of appears to be the rearguard action now) and perhaps to join with the liberals (we don't know) to prevent the majority from being worse. And, the concurrence flags a potential landmine that the majority says it is not really using. Who knows again if this is too coy by half? This too is worth quoting:
On the SCOTUSBlog live blog:
With no opinion summaries in the courtroom, we are missing out on the nuance that often comes from hearing the author give the highlights of his or her opinion. On an opinion day that is also an argument day, one of the reporters who stays down in the press room until all the opinions are out (Amy, to be specific) usually kindly brings me a set of the printed opinions in the courtroom. (Most reporters who stay down for opinions and choose to then come up for argument can make it before the arguments start during the short period when in-person bar admissions are being conducted.Many of us miss out on this anyway, of course, until Oyez.com eventually releases the audio. I guess there will be none this time around at all? The Order List appears to have been as usual nothing too much as a whole (the substantive thing late last week this time was an extension of certain rules) with Kavanaugh adding a statement regarding supporting -- later on -- taking a case to deal with a circuit split he flagged. There was also a brief critical per curiam criticizing the Fifth Circuit for declining to review certai factual claims for plain error. A lawyer from the area noted on Twitter: "this should be big for crim defense in CA5: plain-error review doesn’t exclude fact-finding, contra CA5 precedents."
There were four full opinions with Kagan handling the most controversial. Gorsuch had the opinion for a racial discrimination lawsuit that received some attention, but the mostly unanimous (RBG pushed back a bit, Gorsuch dropped a footnote explaining himself and she didn't join that) result suggests the needle wasn't moved much.* In another push against the 5CA, Breyer had a 7-2 opinion (Alito/Thomas dissenting) giving immigrants something of a win to give them a chance to make their case. It is an example of how at times the Roberts Courts helps out there.
The first Kagan opinion applies sovereign immunity precedents (Breyer/RBG concurred to say they are bad, but conceded they were stuck with them as precedent) to copyright cases. Realistically, not doing so would have been a bit off, again if one is consistent. The hope there, and Kagan has been someone who supported precedent even when the result might not be what liberals like (e.g., dual sovereignty rule in double jeopardy), is that this might help later on. As seen in the First Amendment context, this is not always the case. Her opinion, well written in her readable style, honored precedent and made clear Congress could still (within limits) regulate in this area to advance the same ends. This was too much for Thomas to totally go along with.
[Breyer crankily went along and Thomas made sure to appeal to Thomas purity but Kagan's pen shined thru the majority opinion: "crystalline abrogation" .... "bankruptcy exceptionalism" ... "When does the Fourteenth Amendment care about copyright infringement?" .... "And it gets only worse." ... "digital Blackbeards" ... "prewrote our opinion." Roberts is also a good writer. Gorsuch tries too hard. The other justices are generally careful if boring drafters though their voice can shine in separate opinions. Breyer prefers functional/fact based analysis. If the author's name was removed, sometimes tossed out there as ideal, an expert often could guess who wrote it, though not always.]
The other opinion was 6-3 with the other liberals (led by Breyer in a long dissent, one that maybe in another time might be announced from the bench) upheld Kansas' (to quote SCOTUSBlog) "failure to allow a mentally ill defendant to raise such a defense does not violate the Constitution." Only a few states, as of now, are affected and Kagan argues that the alleged mentally ill defendant did have a form of an insanity defense even with the ruling. It is unclear how bad the net result will be in practice at the end of the day. So, especially if Kagan's vote helped to tone it down somewhat, it is not too surprising that she went this way. Going back to a theme, the two opinions also split on what precedent demands.
[I tossed in a link to a good preview, one that also quoted from an earlier dissent to a cert. denial on the issue with a similar 6-3 split though the earlier case cited had Kennedy in dissent supporting the more criminal defendant rights position. So, Kagan's position might not be a total surprise. Slate also has a negative article on her opinion. I am inclined to be sympathetic to the dissent, but Kagan's vote didn't really add much to the conservatives. If anything, again, I think there is a fair chance her involvement might mildly advance liberal interests long term.]
With oral arguments (and two executions) postponed, we still have a planned conference this Friday and another order day the following Monday. To toss it in there, McConnell and Kavanaugh attended a former's clerk's swearing-in ceremony. District judge in Kentucky, so perhaps an additional reason why McConnell showed up. He is in his 30s and the ABA deemed him "not qualified" because of his limited experience practicing law. Others were upset McConnell (who delayed things in the Senate over the weekend) and Kavanaugh (traveling at all) showed up. Ah. Speechwriter for Donald Rumsfeld. How charming.
---
* A Nation article is more pessimistic but flags that RBG said she went along because of precedent (going along with bad precedent to protect good precedent that conservatives might want to dispose of appears to be the rearguard action now) and perhaps to join with the liberals (we don't know) to prevent the majority from being worse. And, the concurrence flags a potential landmine that the majority says it is not really using. Who knows again if this is too coy by half? This too is worth quoting:
It’s worth noting that the 1866 Civil Rights Act does not specify, in its text, that black people must show that racism is the but-for cause of their legal injury. Most of Gorsuch’s opinion is just him explaining why he’s willing to read “but-for” into a law that doesn’t contain the phrase. But that’s what originalists do: They stick closely to the text when it helps their agenda and make up words to add to the text when the original version doesn’t support their opinion.An unaimous opinion does tend to suggest an opinion is limited, but (1) it doesn't mean it is correct (2) it might be papering over and somehow furthering deeper things. We saw this in a case that led to Shelby v. Holder. [This footnote was added.]
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