Virtual Supremes: Roberts is a RINO (Not Really) Again

As of now, there are two decision days, a conference and a second order day (orders were handed down today) scheduled this week. Three opinions were handed down today (one from May) and ten remain. We start as usual on order/opinion days with 9:30AM orders.  This one looks bland, with the usual odds and ends, but there is an important development for those on the look out.  Among the orders on a short list is this:

BOURGEOIS, ALFRED, ET AL. v. BARR, ATT'Y GEN., et. al. (19A1050) The application for a stay of the mandate pending the disposition of the petition for a writ of certiorari presented to the Chief Justice and referred to the Court is denied. The petition for a writ of certiorari is denied. Justice Ginsburg and Justice Sotomayor would grant the application and the petition for a writ of certiorari.

What this?  Oh.  It's the federal death penalty ruling (2-1) that held that the Barr Justice Department are not breaking a statutory rule that any federal executions have to follow the rules of the state involved (or one designated by the court if the state has no death penalty) per the proposed protocol.  The last federal execution was in 2003 and the plan is start again in July.  With so much going on, this can be lost in the fold [it is not alone -- among things going on is the Mississippi legislature passing a law removing the Confederate flag on their state flag], but it is pretty serious.  Before we restart federal executions, I'm thinking a full review of a divided ruling is warranted. Will executions really start anew without comment? 

10 o'clock.  The opinions are handed down in reverse order of seniority. The first up is one by Kavanaugh for the conservatives, Breyer for the liberals (Kagan did not take part).  This involves an international funding law to fight HIV/AIDS with a proviso -- the organizations need to have a  "policy  explicitly  opposing  prostitution   and   sex   trafficking.”   A previous opinion by a large margin held this a breach of the First Amendment as applied to domestic organizations.  But, this time, the majority held that foreign organizations were not covered. The dissent argued that domestic organizations were at stake here since they had a close connection to those covered here. 

The result here will very well burden some organizations that serve at need groups and are loathe to basically say they "oppose" them while trying to do so.  And, just what that would entail can further burden such groups if certain roadblocks are put up -- devil in details.  Finally, as Justice Breyer notes (and he is no free speech absolutist) "compelling people to profess a belief" is a basic free speech "no no."  And, he is correct that we should be wary about some absolute rule denying non-citizens overseas any First Amendment protections.  The First Amendment is a limit on power as much as a granting of rights.  Only the last part even references a "right of the people." 

Breyer sorta (he would have read the opinion announcement if -- as there should have been -- was one available today) spoke for the Court in the abortion decision.  This is not as much as a surprise as it might seem -- CJ Roberts already held up the works, unlike the other four sending a message that he thinks the specific law here is basically the same as the abortion law struck down in 2016.  Yes, he was in dissent there, but he gave it stare decisis effect.  He did so today, if concurring in judgment.  This is a suggestion that a "chill wind blows" but at least partial credit is deserved. 

This will for some seem to be a case of Roberts being a "Republican In Name Only," but he didn't do the anti-abortion cause (or anti-abortion rights cause) that much harm in some sense.  Breyer simply, in crisp fashion based on the facts (RBG let him be -- no concurrence), applied his own precedent. One some argued if anything strengthened Casey some.  Roberts, let us note, did simply go along regarding the clinics having standing.  This is a major dispute, including for one or more of the dissenters (Alito led the way but each other conservative had their own), and could threaten abortion rights since clinics are best able to defend abortion rights as compared to time sensitive patients.  Roberts, however, would give Whole Woman’s Health narrower reach.  And, "this is too obviously the same case" is a tad thin.  There will be more abortion battles.  The anti-choice side still has an ally here. 

The theme this term repeatedly has been (at least for Roberts) "I'm not going to go too far," which comes off as strategic waiting and see.  The main thing that comes to mind here is that the battle over the courts has had its temperature lowered somewhat though it is far from rightly over given we are hanging on a somewhat thin reed of one conservative vote.  The "you need better bs" cases (census and DACA) and this stare decisis (you need better "new" cases) ultimately are fighting the long battle institutional concern matters.  Roberts has a Court for not so immediate future with the two tainted seats. More likely than not, in the short term, the replacements will be liberal holding the lines. 

You know the opinions are done in these virtual times in particular when a "R" number (Reporter) is placed on the opinions.  And, this occurred with the third one, the CFRB dispute that actually had Paul Clement appointed (via Kagan, in charge of the circuit) to defend the good guys.  Kagan spoke for the dissenters with her usual verve, starting with a footnote citing her own writing.  The result was a continuation of the conservative action to chip at the administrative state though in the not to short term it might actually give a President Biden more discretion. 

(Prof. Litman in that article cites the abortion opinion as a "Pyrrhic" victory and it is true that Roberts concurrence waters down to some unclear degree abortion rights and invites further attacks. But, it still is a victory for abortion rights and the alternative is really not advisable either.  One law professor with special expertise on the subject suggested that the opinion basically rolled things back to Casey.  If so, how bad is that really?  That earlier opinion is really one that provides practical openings for ebbing and flowing, depending on the makeup of the courts.) 

Small breather. More tomorrow.  Talking separation of powers and checks and balances, this move in the House to add more bite to contempt seems sensible.  The Trump Administration has abused the process and something needs to be done to provide some rejoinder, one with a fast track process.

ETA: Analysis of the decisions have been coming in from various places, including SCOTUSBlog.  Note how there does remain a way to remove even under the law in place: “inefficiency, neglect of duty, or malfeasance in office.”  This provides a mean for the executive to remove. As I noted here, there are other checks, including involving the other two branches as well as the general public. OTOH, the general concern that executive actions should have political executive checks is a general constitutional principle that can guide policy as noted in that last essay.