SCOTUS Update: Various Actions As Winter Break Continues

The Supreme Court continues their winter break but some action did occur involving them in various respects. The big news is an death penalty case but there was numerous notable other events.

[One more thing. On the judicial front, it is important that various judges are taking senior status, opening slots for Biden while leaving some good judges on the bench to serve in various instances. Another leader appeals court judge announced just that, with a commenting about being happy about Biden having a certain breed of dogs. The judge has a German Shepherd guard dog named "Vixen."]

The first order early in the week was just a follow-up from the Friday night fun time COVID affair, applied without dissent to another case.

Now that the Dems have clear control of Senate committees and everything, we will have a Merrick Garland confirmation hearing! Well, for Attorney General. But, I reckon that will have some amusing (ha ha) allusion to his Supreme Court seat somehow. The road to a 1/3 tainted Court. Around five years from when he was appointed, he will be confirmed ... for another position. 

And, fwiw and not surprisingly, the Biden Justice Department changed the position on the ACA case. To the obviously sane position. That is, a zero tax penalty doesn't make anything unconstitutional and if so they can just sever that portion. The Supreme Court will likely do something like that anyway so this won't moot the case, probably, or change things. We shall see. They also changed their position in another case involving an alleged "taking" merely for having the right to access workers.

Willie B. Smith III was scheduled to receive a lethal injection at a south Alabama prison for the 1991 murder of Sharma Ruth Johnson in Birmingham. Prosecutors said Smith abducted Johnson, 22, at gunpoint from an ATM, stole $80 from her and then took her to a cemetery where he shot her in the back of the head.

For me, the basic problem here is that it is unclear to me the value of executing someone (it is of marginal interest at this point, but also for which seems like an ordinary murder from those bare facts) after thirty years. Justice Breyer has repeatedly cited the problem with waiting so long, including in respect to the penal purpose.  Thirty years is not enough time for even such a horrible crime?  This is what a lottery amounts to.

But, the actual remaining claims are more narrow though the often conservative 11th Circuit did hold up the execution -- (1) should he have the right to have a minister at his execution (2) if he can provide evidence that intellectual disability interfered with his ability to challenge his right to challenge the execution method (he wants nitrogen gas). The latter does not appear to be a full fledged intellectual disability claim though one of these days we will likely have nitrogen gas used.  

The former has split the justices (including conservatives) for a while now.  As I write this before SCOTUS action, it seems to have more of a chance. OTOH, it should not in the end actually delay the execution too much.  Anyway, the continuing dispute (SCOTUS just sent a case back to examine a related issue) underlines to me maybe they should have taken a case to set basic terms.  

So Alabama had until midnight local time (1AM EST) to execute and the decision came around midnight SCOTUS time. They without an opinion (result at least is not surprising, only dissenters concerned with method of execution these days) rejected the second. It's disappointing that there was no written dissent, but maybe one will somehow come later on.  Yet again, the majority should at least explain themselves in an execution case.

As expected, the first was the most promising though there is a 4-3-? split.  Kagan for the liberals and Barrett says he has a right under religious statutory rights in prisons. Thomas dissents without opinion. Kavanaugh (with Roberts) follows past sentiment that a neutral rule (including nothing) is acceptable. He also added that given that wasn't the result, the state should figure a way to get the advisor in to stop long delays and allow "closure" for victims' families. Note that only some of them get closure by executions, especially those who oppose executions.  

So conservatives split on a religious liberty question, but we don't quite know how since Alito and Gorsuch didn't explain their votes. We don't know. On a matter that repeatedly has come up now, the Supreme Court still doesn't have a clear opinion.  This is stupid, especially since this provided a prime case to do it. Why it took to midnight is unclear too. Neither exactly wrote long opinions.  Did Breyer or Kagan try to get Alito or Gorsuch and fail? It's Breyer's first majority (in a way).  And, then there is an earlier opinion by Alito (with Gorsuch and Thomas!) that rejected a related claim on procedural grounds, but said maybe it could be a serious claim in the right case.  Alito wrote a key prison religion case here too.

The net result is more shadow docket opaqueness and for at least a limited time no execution. The state really should have had a back-up plan to allow the spiritual advisor in if that is all it took. At some point, delays have something to do with state action.  Anyway, since there should be no big reason not to have the advisor in there, if Alabama really wants to execute him, they still should figure out a way to do so soon. 

Okay let's summarize. (1) This is a reasonable religious claim, especially since it is done via a targeted statutory protection.  (2) Some conservatives at times at least will be consistent but the shadow docket is still stupid. (3) Here is a summary of what happened, again from the great Amy Howe. (4) The whole thing underlines court reform has various parts. And, to quote one link, (5) Smith will [likely] still be killed, albeit with the presence of a pastor who, in Smith’s words, will “relieve his struggle as he passes” and help him “properly express to God his repentance.” Even if they accepted his other claim, that would be so, just with a different method. 

[The House will have a hearing on the shadow docket.]

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As expected, the February arguments (starting on Washington's Birthday, Presidents' Day next Monday, near Lincoln's actual) will be by telephone. I have voiced some support, and do still think it helpful to give each member a chance to ask questions.

But, the back/forth -- if imperfect and in practice selective (still, that can be addressed too) -- of the old system also had charms. Other courts manage to keep that by using video, which easily can you know include some sort of method [let's say a flashing light] to flag who should talk next while the others mute.  Many use video conferences, including sometimes with nine or more members, and they can too.

So, it's 11:45PM. I think we are safe.

ETA: Basically so.  Justices in their circuit role act upon things and there was a report that Breyer did so and turned down a request in an extradition case on Saturday. I don't really keep track of that sort of thing here, but since it received notice in a news article, decided to toss it in.