First Monday In October

And Also: As the day went on, more and more people -- the last count was like thirty, not counting people like housekeeping staff -- was found to be positive for the Big V.  Trump also continued to be so unhinged that reports are that Don Jr. was worried about it. He was released from the hospital and said he felt better than he did for twenty years and not to let the disease run your life.  The whole thing suggests the value of a congressional body per the 25th Amendment to check the health of presidents. Somewhat relatedly, this discussion on what to me is based on the Emoluments Clause specifically on congressional rules for tax records etc. is sound.

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The opener of the 2020 Supreme Court term was a pretty busy one, including arguments again telephonically. C-SPAN did not have them on television, only providing a feed online.  One of the channels on the t.v. had the South Carolina Senate debate, but one merely had some political discussion of some sort that seemed not as important. Some at C-SPAN, like Brian Lamb, argued televising the Supreme Court is very important. This sense of lesser priority to me is rather disappointing.

First, we had the release of a long order list to generally get through the results of the "long conference" regularly done before the term to deal with pending matters.  Justice Sotomayor had two statements, as is her thing, flagging concerns in criminal justice cases including one involving lethal injection protocol. She finds a way (partially since the votes aren't there) to explain why she goes along with the denial but still provides strong concern about some matter.  The lethal injection case comes out of Ohio, which has postponed executions for some time now. 

The thing that stood out here was the final disposition of a long pending (it was part of a slew of qualified immunity cases that failed cert) case involving Kim Davis. As expected, she lost, but the joker was a long diatribe (putting her out as a martyr of religious liberty) against the constitutional right of same sex marriage by Thomas that was also joined by Alito.  Again, religious opposition to secular marriage was in place for quite some time (divorce etc.), so this isn't some unique matter. The hypocrisy of this has been cited by Jesuit Father James Martin.

It would be interesting to see if there is more to this story -- why was the case held so long? Was there some chance another justice ("justice") would join in or in some form of the opinion?  The lengths taken makes it difficult to see how any other justice would be willing to join even though one or more (Gorsuch and Kavanaugh particularly) might somehow be sympathetic to the concerns for religious liberty.  Note that Gorsuch's Bostick ruling basically left that to another day. The timing could also be strategic to have it in place for the new term.

The nomination of Amy Coney-Barrett -- her hearing even though multiple members of the Senate Judiciary Committee tested positive is next week -- could only encourage an idea that this would be a good time to release the statement.  Anyway, what a pathetic character she is to take part in this while the spectacle of Trump out there threatening the health of others, the "super spreader" nature of her nomination announcement apparently not a concern for her. Can those liberals who said she lacks a character problem please apologize for their fatuousness?

Anyway, mixed in with the orders are probably some things of some interest even if they don't stand out. For instance, it was flagged on Twitter that "SCOTUS just renewed government's ability to target/deport Ravi Ragbir, immigrants' rights activist who had been targeted by ICE for his political advocacy. " Prof. Victoria Nourse, whose writings on a range of issues I have found excellent and is a filibustered Obama nominee that particularly stings in part since she would be key to control of the Seventh Circuit, has a good op-ed criticizing the textualism of Coney-Barrett.

The order came in a lawsuit filed in May by a group of South Carolina voters, the South Carolina Democratic Party and the Democratic National Committee. U.S. District Judge J. Michelle Childs barred the state from enforcing the witness requirement for the state’s June primary and again for the upcoming November election. She concluded that the challengers were “substantially likely” to be able to show that, because of the “unique risks posed by the COVID-19 pandemic,” the witness requirement would violate the challengers’ constitutional right to vote. After the full U.S. Court of Appeals for the 4th Circuit left Childs’ order in place, state election officials (along with Republican leaders of the state’s legislature and the South Carolina Republican Party) came to the Supreme Court last week.

We also had a "shadow docket" decision in which the Supreme Court intervened in a pending matter to make sure people have a bit harder time to vote.  We did not actually get an explanation why this was done, including given "the head of the state’s election commission has said that the witness requirement does not help to deter voter fraud."  Three justices would have gone further (why? again, no comment), there being an exception for those already submitting, including a two day window. Why two days? Again, no comment.  [Rick Hasen has more here.]

Well, Kavanaugh did provide a short explanation, citing two reasons. First, he cited CJ Roberts (one person) that local governments should be given wide discretion to handle public health matters.  The actual case involved there was special rules in place to deal with the Big V, not inaction in such a way that makes an existing law particularly concerning for a fundamental right. The second is the "Purcell" principle, put forth in the shadow docket itself, which was cited as an inclination (not absolute rule) not to change the rules near an election. But, (1) not absolute (2) the original lawsuit was months ago. If anything, this seems to be the change near an election.

As Hasen notes, one can only speculate, but no dissent suggests a sort of "deal" to allow the exception.  Maybe so and personally I think such "horse trading" is not somehow inherently illegitimate when multi-member courts work out what the law should be. My problem would be that you need to actually explain yourself. I would probably still find the result here problematic, but that is separate from the "since we say so" ruling.  In fact, this order was not even put on the normal order page; you have to go to the less well known "opinions related to orders" page to see it.

The state electoral official statement underlines the weakness of the state case here while also showing how "voter fraud" concerns continue to burden voting rights, evidence of that being a problem still lacking. I am unclear how harsh the result here is specifically as to requirement that requires voters to sign absentee-ballot envelopes in the presence of a witness.  This would be in part a matter of how that is enforced.  But, this is part of a wider whole, so no one case will show the results.