Supreme Court Watch: Opinion Day etc.

Thursday is starting to be a semi-official Opinion Day for this term, repeatedly the day announced when there are opinions to be handled down. Monday after conference will give you orders and sometimes Friday (the usual conference day) will also lead to announcement of a day where where opinion or opinions might be handled down. And, it again repeatedly has been Thursday. But, as in the past, we have various odds and ends relevant to Supreme Court matters. 

One bit of news is reports of a sizable (2M, noticeably more than Thomas and Sotomayor's autobiographies)  advance for a Barrett book, including an alleged theme of how justices shouldn't let personal opinion interfere with judging.  Dahlia Lithwick had a good response, including the telling "irony" that Breyer, Sotomayor and Gorsuch assuring people they are just going about their business (if at times strongly disagreeing!) is itself a form of "political theater" in response to pressures and criticisms.

She also (quoting a good piece by Chris Geidner) suggests even if some people (to me prematurely) think liberals are dropping the ball on court reform, their actions actually very well might be having concrete effects already.  I will repeat my sentiment that change here happens in various ways. There are a lot of moving parts.  I think the filibuster is comparable. Reconciliation is one way around it.  It was already weakened regarding executive appointments.  I think more can be done there -- how exactly can be debated -- especially since completely abolishing with 51 votes seems a bit unrealistic.  Not bad on policy grounds; unrealistic.  

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One ongoing battle -- over a year -- in the Supreme Court that had various ebbs and flows concerned having the spiritual minister of your choice in the execution chamber.  As part of the "shadow docket," a majority of the Court (how many? unclear -- Kagan wrote a plurality of four that Barrett joined; three dissented on the record)  held that at least given current federal statutory protections for prisons, there is one.  This was a mild example of religious liberty.  Texas took the hint and changed their policies (an execution scheduled in May) to allow it.  

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The controversial opinion handed down was a 6-3 upholding of a LWOP by someone who was convicted of murdering his grandfather at age 15.  Kavanaugh wrote the majority, disagreeing in part with the author of the substantive opinion (Kennedy wrote the follow-up, but it was a procedural question; Roberts agreed there but dissented in the original opinion) -- Kagan joined Sotomayor's strong dissenting opinion with Breyer.  

The debate was just how broad was the limit on LWOP for juveniles who committed murder. Sotomayor (and the author of the opinion again apparently agrees) argued that it limited it to a very narrow number of cases.  And, it is the obligation of the court to determine if that "worse of the worst" subset is in place.  The majority saw the rule as more of a non-mandatory LWOP test, giving more discretion to the government. 

It is unclear how many more minors will have LWOP sentences here, in part since the actual test will only come decades from now when they age out.  Plus, the states would have to disallow any actual means of parole, such as some power of the governor to commute.  I'm generally inclined to go with the critics, particularly since in my ideal world the earlier case would have had further -- EVERY person who commits a crime as a minor should at least have the chance of parole.  Heck I'd say any person.

The stakes there after all only take us so far -- didn't Charles Manson have periodic parole hearings? It is not a parole by right.  And, putting aside -- as Sotomayor notes in her opinion -- the facts of this case is a particularly dubious application of LWOP, what is involved here?  Thirty years down the road, maybe, the teen involved (who here is now around 32) will be released?  A gruesome murder by someone 17 years old getting that much time in prison to me is not actually weak willed justice. 

There is also the "come on you are thinking it too" fact that there is something um off with Kavanaugh writing an opinion that restrains the limits on letting the wrongs of a teenager lead to life time effects.  I've seen this framed a bit too broadly* -- he is not saying that NO concern should be given to the youth of the wrongdoer -- but yes, the person whose actions as a teenager surely should not be used to restrain his ambitions decades later (so it is said) being an author of this opinion is a tad ironic.  And, this isn't the first time this came up -- Alan Simpson spoke out against treating teens too strictly, bringing up his own past. 

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We have two other opinions.  Breyer for everyone said the Federal Trade Commission -- even if it would be nice -- didn't have the power under current law to respond to a deceptive payday lending activity as it did. He notes that if they can get Congress to change the law, as tried, go at it. 

Sotomayor in part had everyone in allowing a challenge involving an Appointments Clause matter (which on the substance has repeatedly split the Roberts Court in liberal/conservative fashion). In another -- as is common these days -- brief opinion, she settled the technical issues. Thomas (with Gorsuch and Barrett) and Breyer alone each only went part of the way, noting why in brief concurrences. Why the five person majority went further is unclear to me (seems silly), but unlike a truly splintered Court, we still had a clear majority opinion.  

Breyer in his recent Scalia lecture noted his general ideal is to get broad agreement, even if he personally might disagree. There are various cases where he clearly -- given his druthers -- wouldn't have gone along, but did so for that reason.  I find that a generally commendable approach in group decision dynamics.  He also added that sometimes a judge is unable to do that, at times based on idiosyncratic experiences and thoughts. That might be a factor here since administrative law is a particular concern of his.

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The conference day order (a common occurrence is some mild action or at times a grant to hear a case)  allowed a reply brief out of time. Yes, a lot of these orders are rather bland.  There was also an announcement two more Thursday opinion days will occur this month.  

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I see that there is a new Court photo, "the product of Court packing by a Republican [travesty], Donald J. Trump, and a Republican-majority Senate."  I said more, but that will do.

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* Repeatedly.  So, e.g., we have lame arguments that the Founders would have opposed D.C. statehood.  And, then we have responses of a bunch of things they would have opposed (or what they supported).  I can provide a long discussion here, but let's say, it was an over-correction that mixed in some error on top of error. The net answer is that the arguments are lame and the true concern is political.  The Constitution itself leaves a lot of room for development and picking among choices there.