Supreme Court Watch

Breyer: I referenced the Breyer lecture briefly as an update and many highlighted a limited portion against "packing." The extended lecture is more than that and has some familiar themes. Breyer has written books and regularly lectured to promote his point of view, an educator as much as a judge at heart. Some suggest the lecture helps the idea he is retiring, it having that feel. Maybe. I hope he does; it is a good time. A wait can be very problematic.

His concern about the importance of courts having their authority respected is fine. But, and this is not surprising, it is just not fully honest to face up to WHY court packing is specifically flagged as a necessity now. I realize he would see it as unethical to talk about the specifics as it applies to the Court for which he currently judges. Still, he is making a claim here. Don't bring it up if you can't fully examine the situation. There is a way to go at it sideways, perhaps. A direct opposition to packing without facing up to why, however, is not too credible. 

(People will use his words to oppose change and likewise that will be telling only part of the story, not very credibly.)  

Breyer's discussion on judging is overall fine too. It involves some useful details, including his personal support of compromise and summary of the factors used. The average day judging is not some stereotype one might see. But, here too, Breyer goes too far. A sort of rosy-eyed myth making for the masses. He notes the average judge honestly uses standard techniques, even if they might disagree on the details, disagreements affected by their experiences.

This alone is notable since the current system involves picking some with these "experiences" etc. in a more ideological fashion. The basic concern for me is not that a Gorsuch is just making shit up in a partisan way. He can quite honestly believe he is simply being neutral. It is that in practice we have clearly different results, ideologically so. This might be more narrow than some think, but it does have significant effects. The concern for the courts is not a result of people being confused about that sort of thing. "Packing" is a result of blatant abuse there. 

Order: Meanwhile, an order dropped rejecting a request to interfere in a lower court matter [interfering in the "shadow docket" done more often of late] but "without prejudice." That is, the party can try again if another matter arises that warrants it. The case itself is not exactly run of the mill: it involved Mississippi's plea to stay a CA5 ruling supporting a parents' school funding suit tied to post-Civil War Readmission Act. That is, the act included a still active education requirement! 

Arguments: The rest of the arguments will follow the telephonic method. The justices might all be vaccinated, but all the lawyers out there are not, and there still are issues. We have not gone back to normal; so this is a sensible path for the final month plus (there being a May argument).   

Biden Commission: An announcement has been made about the commission that Biden promised ("President Biden to Sign Executive Order Creating the Presidential Commission on the Supreme Court of the United States").  The membership is pretty good with various familiar names, from both sides, including people I have read over the years.  

It was given a six month deadline, so some final report (might not include recommendations as such) will be a while coming.  In one interview, Chuck Schumer told Rachel Maddow that he'd wait on the Supreme Court, but is supportive of more immediate action on lower court judges.  I see btw that Mitch McConnell strongly criticized the commission, anything he says on this matter of course not worthy of much comment.  

There is a concern this is a "kick the can down the road" mechanism, which really seemed the point when it was proposed during the campaign.  I'm somewhat more supportive of a presidential commission here than that article since as with other things (e.g., civil rights) there is a chance that sort of thing will have some added symbolic weight.  What would recommendations get you anyway?  I'm likely sure it will have some conclusions suggesting a path forward anyhow.  

Ultimately, the ball is Congress' court to push things along, and adding membership has always been a longshot as is.  We need to focus on other things, including voting rights.  Yes, ultimately, the courts will matter there too.  But, one step at a time, especially 50-50 in the Senate, is a realistic path.  The article is by someone likely to give you a somewhat more left leaning take than perhaps warranted at times, but I grant his concerns are valid overall.  I do note a former member of Strict Scrutiny Podcast defended the conservative judge that recently retired. 

Late Night Fun:  I scheduled this post Saturday morning since -- though it hasn't happened for a little while -- there repeatedly has been late night Friday orders. And, checking the NYT late nite, I see we have another. This sort of this again is offensive practice, even beyond the merits.  As usual, Amy Howe is a helpful place to go to see what is going on in these "shadow docket" orders as well as in general.  

The ruling is another involving religious gatherings and turns on a tainted seat that even people who were wary of court packing said was a dangerous bridge too far.  It sets forth a rule that is a result of cases, often with some lack of clarity of who exactly voted for the five person majority and what they supported, that pushed the meaning of "religious liberty." 

Roberts, without fucking explaining why, would refuse the emergency petition. Lower courts "might what to know."  That makes it 5-4.  Justice Breyer might explain to him how this leads to distrust of court power.  The unsigned order is impatient at the apparently clear repeated breach of their shadow rules, but the Chief Justice of the United States does not think the order is necessary.  Kagan for the liberals has a two page dissent (over the four page per curiam). 

Kagan sounds tired too: "As the reliance on separate opinions and unreasoned orders signals, the law does not require that the State equally treat apples and watermelons."  And, "Because the majority   continues   to   disregard   law   and   facts   alike,   I   respectfully dissent from this latest per curiam decision."   Breyer has a sort of fifth column against his efforts, apparently -- the members of his own Court dropping midnight orders that its own Chief Justice "indicates" (Amy Howe) he disagrees with via a simply "would deny the petition." 

Rachel Maddow noted the Republican Party officially is still kissing the ring of Trump, including going down to his Florida home (or whatever that is) and allowing him to still benefit financially from his grift. This continues to make the party not worthy of respect. And, these actions, here because of a so-called "justice" shoved down our throats by the assholes who would not give Garland a hearing, including an announcement during a sort of super-spreader event, makes SCOTUS of the same caliber.  

RW also was glad she got fully vaccinated, tearfully, probably in part because the love of her life had a bad case of the Big V.  The disease has not affected me as much as some and the vaccine -- which contra to her sympathies to those wary about it -- is rather easy to get.  It is not even akin to a blood draw.  She had a negative reaction to a past shot in a different case, so again she might have a special reason for empathy there along with her fear of needles.  The COVID rules that SCOTUS keeps on interfering with -- selectively -- are in place as we still fight the virus, in some places with upticks that are scary.  

One more thing ... I checked Twitter shortly before midnight and saw some reference of the Padres finally getting a no-hitter, but no reference to this case.  This was including a law professor and Mets fan that agrees that call the other day was bogus saying he loves baseball.  A professor who earlier flagged a critic of his take on the shadow docket.  He updated in the morning.  See here for discussion on a related recent matter. 

ETA: One other thing flagged by commentary is the Kagan (the circuit judge of the 9th Cir.) seemed to name check the lower court judges involved. At the very least, it was noted that the panel was made up of Trump and Bush43 people, though saying that might make Breyer cry. 

Also, it is supposed that Alito or maybe Gorsuch wrote the opinion, which does match the tone.  The others have gone along though Kavanaugh and Barrett have flagged some desire to suggest they are moderating themselves a bit here.  Those two have been the strongest on this issue. 

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There was no scheduled Conference this week or opinion days announced for next week. So, next week might be low key, though there is an Conference scheduled for next Friday, leading into a more busy two weeks. We shall see how things go.  One thing that won't happen later this month is an execution -- Texas postponed what looked to be the first state execution this year, but it is now scheduled for November.