Summer SCOTUS Watch

It's summer, but we still are getting more Supreme Court news.

RBG had a minor procedure done and is resting comfortably. Joan Biskupic provided some behind the scenes stuff that for the Supreme Court is big news though the details to me are not too surprising.  We did get some new details, such as that early on the New York Trump financials vote was only 5-4 in support of the state.  Gorsuch as principled, Kavanaugh trying for a moderate "tone" makes me think they themselves could have been sources. OTOH, a High Federalist might not find that as appealing.

In the new platform language, Democrats say that Republicans “have undermined the legitimacy of our courts through an anti-democratic, win-at-all costs campaign that includes blocking a Democratic president from appointing a justice to the Supreme Court and obstructing dozens of diverse lower-court nominees. The Democratic Party recognizes the need for structural court reforms to increase transparency and accountability.”

We also have reports on the proposed Democratic platform as it applies to the courts.  The language is seen by some (Prof. Leah Litman, "wow") as striking though it is unclear what the details might be.  The first part makes some think about term limits or adding judges (a negative term would be "packing"), but the last part makes one think more of ethical rules or televised hearings / same day audio.  The article also flags the tone, contrasting it to the lack of a reference in the 2016 platform regarding Garland.  Also, diversity: 

Another section of the platform, to be released in the coming days, promises that Democrats “will nominate and confirm federal judges who have diverse backgrounds and experiences, including as public defenders, legal aid attorneys and civil rights lawyers” — another objective of progressives who believe that too many past nominees have corporate law and prosecutorial backgrounds.

Note that the district judge in the federal death penalty case (or one of them) that held up things temporarily was a former public defender.  On that front, another execution was scheduled for this month, a Native American who both his tribe and family of the victim opposes. So, at least three of as of now five (three executed) had significant issues, if not all of them in some fashion.  Biden has promised a black woman for the first vacancy, which one presumes will be RBG. Even Gorsuch has been flagged as promoting diversity, such as in Native American law.

And, there were two orders. The first underlines the importance of transparency and in theory might be something that can be addressed on a structural level.  The Supreme Court has repeatedly stepping in before regular order, so to speak, in various cases. The Trump Administration tried to do so in a notable increased number of cases; the Supreme Court accepted it at times, enough to bring forth some dissents.  There also was a rush in the death penalty cases.  Congressional regulation of appellate review perhaps can address this issue, including cutting off certain types of appeals before normal litigation processes takes its course. 

Sotomayor flagged the problem in a ballot initiative case this week.  Roberts for the conservatives minus Thomas (silent) defended the move. Note this amounts to a concurrence for four, not the Court.  We actually only know the result there -- five justices needed to agree to put the district ruling on hold.  But, only six justices (four vs. two; RBG joined Sotomayor on the record) explained themselves on the record.  It has been explained by justices and court reporters that we cannot presume that only two dissenters on the record in this case means a 7-2 ruling.  It's an understandable assumption.  Maybe, voice yourself on the damn record. Maybe, so require them to do so. 

The other involved the long battle over the border wall, which allegedly was not authorized by appropriations by Congress.  This would be a basic constitutional violation, but the Supreme Court opens up construction allegedly not authorized by the body with the job of doing so.  For some reason, the Supreme Court dropped the latest late Friday afternoon, perhaps because you know it took a lot of time for Breyer (for the liberals; the other five just rejected a request to stop construction until the matter is handled in the courts) to write a two paragraph dissent.  A lot of "transparency" there.

Breyer references his splitting the baby approach last July, the rest splitting in the usual way 5-3 in supporting a stay of the lower courts blocking contracts (Breyer was okay with that) and construction (not for him) while the litigation was pending.  The conservative five in a brief statement then spoke of "sufficient showing" though also vaguely referenced "among the reasons," without actually spelling them all out.  Such clarity in the "shadow docket."  Such need for transparency, really. 

The first set of summer orders will drop next week. 

ETA: As usual, nothing much seems to be there, though note the recusal of Breyer. A pending House bill would require an explanation. "Transparency."