SCOTUS Watch

Death Penalty: After the Supreme Court allowed Trump to rush three executions in January (normal order there would have delayed things and they all probably would not have been executed), there hasn't been one since. One footnote referenced here was a request for a short brief involving the firing squad. As seen on this page, the defense submitted it, focusing on procedural matters. A reply from the state is due soon.

A bit of background. Since at least early this century, concerns about lethal injection (backed up by various botched executions as well as some more hazy evidence) has led to various Supreme Court battles. Early on, it was the right to raise a claim, including those who claim drug use or something might make the lethal injection problematic. After an early more direct challenge (Baze v. Rees) failed 7-2, there was more of a strong split later with strong replies by both sides (Alito and Gorsuch writing the majority opinions as compared to Roberts suggests why).  

Basically, the Supreme Court firmly said that not only is the death penalty constitutional, but that the government also has a strong interest in carrying it out.  So, leaving open in theory some extreme case [e.g., actual burning at the stake, not disputed evidence lethal injection would in effect feel like that], not only did they reject the immediate claims (5-4, both times with strong dissents), but also requiring those making a claim that a particular execution protocol was illegal needed to provide an alternative method that was clearly available.  Sotomayor repeatedly railed against this and she is correct.

This is the immediate issue at hand: at first, there was an attempt to offer nitrogen gas as the alternative, but this was rejected for whatever procedural reason. For instance, one the argument was that the person waited too long to raise a claim.  Another time it was more like it is too novel and there really isn't a clear available process in place. A new "unusual" method might be legally complicated for that reason, even if it  is the latest method assuredly safe and effective, though it has yet to be used for an execution. Use for other reasons, or accidental deaths, not quite the same.  But, I am not aware of an in depth analysis on this issue though have read a bit that was said, including comments for/against. 

Anyway, that leaves the firing squad, which was the issue for the brief here.  And, some actually suggest it is safer than lethal injection, if not as pleasant optics-wise.  Again, state brief forthcoming. 

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Rules: Rules of Appellate and Bankruptcy Procedure, per statutory power given to them, were transmitted to Congress this week.  

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"We are Good" Campaign: Breyer, as noted last time, had a big lecture recently; he had another public appearance promoting public education of how the Court is doing its job.  Sotomayor and Gorsuch also promoted civics, including the message that they might disagree, but they are doing their job.  So, you know, don't interfere!  I respect these efforts, especially in promotion of civics education, even Gorsuch somewhat (SOMEWHAT), but you know, come on.  The shadow docket b.s. also is a problem, showing they aren't even doing normal judging appropriately.

They might not want to mention the pig in the room, but it's there.  Three corrupt nominations, especially Gorsuch + Barrett (toss in Kavanaugh), cannot be ignored.  This has led to a few people in the House and Senate to push a bill to expand the Supreme Court by four.  Good luck with that; still, it is an appropriate move as part of the whole process.  I saw reference to this being a sign of their "fury," which is fine and justified.  

It isn't JUST that though -- it is also a rational reply to re-calibrate given the excesses by one side, which already had too much power in a bad system.  Other than Breyer retiring -- I'll give him some slack in the Obama years, but yeah, he really should retire by the end of the term -- it is not horrible for these people to play things like this. They are restrained by their position.  I say this only so much though, since they are bringing this up, which they need not.  It comes off again as a subtweet message against packing.  Sorry people.  We saw what happened.  

Video of the announcement can be found here and one important part is the statement that this is the "education" period for such a proposal. It's a marathon, not a sprint.  A campaign, not a single moment. Pick your metaphor.  As with the Biden Commission, it's best to remember the big picture, and not be too defeatist.  Some already are; it's wrong.  An article on the preliminary activities of the Biden group, including (as I thought logical) splitting up of what some argue is a too large group into focus groups suggests it can help advance the "conversation" as well. 

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Solicitor General Actions: There was a conference on Friday, which means orders on Monday.  An order was also dropped -- as is sometimes done on a Conference day -- this time regarding giving the SG time in a couple arguments and not giving time to the Ute tribe.  The cases involve the proper allotment of COVID to certain Native groups and for whatever reason it was decided that that specific request was not necessary.  

This is just one of lots of requests addressed without comment, there often being desire for different groups to get in on the oral arguments.  There being a limited amount of time, sometimes they lose out, though the SG rarely does.  We hear tell of a "shadow docket" of decisions, but this is the sort of mundane decisions where lack of an explanation is much more appropriate.  It might be nice if some brief comment is dropped at times, but I think bottom line the approach works okay,.

The "hope she just remains in place" acting SG dropped a request for the Supreme Court not to take a sex specific draft case, noting Congress will be examining the issue.  This would make it premature to take the case. The brief does not take a position on the bottom line issue. Good approach.

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No late nite cases this time.  Opinion(s) on Thursday.