Virtual SCOTUS Watch Continues: Monday

On a very procedural but coronavirus-related matter, the court granted the motion of some of the respondents in the DACA cases for leave to file a supplemental brief after oral argument. The brief, which argues that now would be a bad time to end DACA because a significant number of DACA recipients are working in healthcare at this critical time.

After the conference last Friday (will be one this Friday too), orders on Monday and opinions Monday and Thursday was the plan. As usual, if now purely virtually, orders came first at 9:30 AM on Monday.  And, per recent practice, we had a SCOTUSBlog live blog (the source of the quote) and live tweeting as it went on. Let's see how that goes when we have live oral argument audio available next month. A computer fraud case with interesting facts was granted, Thomas/Kavanaugh dissented from a question involving waiving sovereign immunity and various odds and ends including this tidbit via the live blog:

As Steve Vladeck just noted on Twitter, the Court just denied a motion for divided argument filed by the U.S. solicitor general in a pair of cases involving Ford Motor Co. that will be argued next term. And as Steve notes, there isn't necessarily a rhyme or reason to when the Court denies those motions, other than to make clear that the motions aren't granted every single time.

The case on some level seems of limited relevance to the SG, but that usually doesn't stop them from letting them do that.  Let's hope we have a new SG team by then anyhow.  As to this one, a response to New York and others asking the "public charge" rule to be held up since it would be particularly problematic in these times, the response was predictable.

Moving on to the 10AM rulings, we had three, including somewhat curiously the first signed opinion by CJ Roberts (involving a Superfund clean-up, which was somewhat unanimous though T/A/Gorsuch split from the majority on certain issues).  A patent case by RBG was 7-2, notably mainly for Sotomayor joining most of Gorsuch's dissent, involving judicial review issues. The big decision, the result to be fairly unsurprising though the breakdown was somewhat open to chance, was by Gorsuch and held that for serious crimes a conviction cannot be by non-unanimous juries.

The defendant here was sentenced by Louisiana, which later changed its rule leaving Oregon and Puerto Rico as the only places (the federal government by rule, PR a special case, the states until now by choice) without that rule.  Note that this applies to serious crimes; multiple states last I heard do allow split juries for misdemeanors.  The tendency of the current Supreme Court to have one rule for the states and federal government regarding the Bill of Rights as well as the oral argument led me to expect the result.  OTOH, the opinions left a lot to consider.

When the Supreme Court made clear that the Fines Clause was incorporated, it took about ten pages.  There was around ninety pages of opinions here split in various ways, though the net result was 6-3.  Justice Thomas wanted to use the Privileges or Immunities Clause.  Kavanaugh wanted to talk about stare decisis (per that essay, it being "for suckers" is a bit harsh, but put him in the median position at least). Plus, the old rule was bad and racist. Sotomayor mostly went along except for one part of the discussion involving the key precedent here and wanted to emphasis the old rule was really bad plus racist.  Gorsuch with the majority though he didn't get five votes on all over it.  Alito with the dissent with Roberts and Justice Stare Decisis Kagan though she didn't go along with what amounted to a subtweet to the liberals complaining about certain precedents being overruled.

Justice Alito started off concern trolling about the tone of the majority opinion (I did find Gorsuch's tone snotty, but Alito is a bad prophet here, including if you kept on reading) and upset about the various justices calling the non-unanimous jury rule racist.  Yes, there are various jurisdictions with the rule and in theory you can defend it to some degree. But, the origins in Louisiana and Oregon are dubious.  Then, he argues that even if that is so, we should ignore that history now (let's see how that works in religious liberty cases).  OTOH, even today, as John Legend and others flagged, there probably are racist implications in practice at least in Louisiana.  And, it is a dissent.  It isn't a concurrence in judgment.  Kagan going along is not really a surprise though some parts of it is a bad look.

[As a historical matter, a unanimous jury is standard so it is not too surprising that Gorsuch and Thomas went along.  Kavanaugh is not some kneejerk prosecution type though leans conservative.  Roberts is actually a bit of a surprise, especially given the tone of Alito's dissent.  Given the limited reach to the opinion as a practical matter, I can see Roberts joining the majority.  I also want to emphasize the Puerto Rico issue including that technically the opinion doesn't even address the matter since it concerns incorporation.  Territorial matters here are of different caliber though since precedent talks about protection fundamental liberties being protected, the tenor of the opinion makes it hard to see how it would not apply if pressed. I wish Justice Sotomayor responded to Alito on the point.]

As compared to the dual sovereignty case involving double jeopardy, though even there the numbers might be small in practice, the reliance issues here are dubious. Again, a single state actively has it.  The Puerto Rico issue (the big bankruptcy case is pending; there was a push by one party there to overturn the Insular Cases, but the justices weren't keen) is a curious issue that only Alito referenced (one might think Sotomayor would too though non-unanimous juries also in practice crowd out dissenting racial etc. voices so she could go another way).  And, Alito also flagged the also not referenced by others grand jury issue, a sort of outlier (along to some degree the 7A) that has yet to be incorporated.  OTOH, unlike this, that would be a major change and the precedent isn't tied up with confusion.

On principle, I can see some logic to allowing a non-unanimous jury but there is a long history here that understood our jury system involves the general rule in place most places.  And, that too important, since when 49 states and much of the federal government has a particular due process requirement on a major matter, there is a general understanding it should be deemed the rule for all.  This is far from compelled, yes, but there are also other reasons to go with the flow including the importance of minority viewpoints to have the power they have and the extra protection to liberty provided.  And, yes, Louisiana has a tainted history and itself changed.

To be continued later this week.