SCOTUS Watch: Kagan is PISSED

Noah Feldman, who basically was one of the "things are fine really" people in yesterday's Presidential Supreme Court Commission session repeatedly suggested that those who (the horror!) want to expand the Court are upset at results. And, you know, you win some/lose some.

That is PART of it.  And, it is not totally wrong in the least.  If the Supreme Court for an extended period of time -- to quote President Biden -- in a "span of just eight years, the Court has now done severe damage to two of the most important provisions of the Voting Rights Act of 1965" -- we might be concerned.  Especially, if it is not the only problem regarding their results in past republican value rulings alone.  

That is not the ONLY part of it, especially for me. A major concern is how the judges got there.  If over and over again, the process was tainted, including overriding public will (e.g., voting in a key member as voters were choosing a new president, a far from surprising result), that matters a lot too.  The courts will not always rule as each side wants. 

But, they need a basic legitimacy.  A related reason why Trump was so much worse than Bush43 or any likely alternative, even if policy-wise there was a lot of overlap.  The process with McConnell/Trump is very significant.  It is however a longer term process where the people since 1992 by popular will vote for one side, except once (a bit of "fruit of the poisonous tree" energy even there), but still the Court is a Barrett Court.  

As a whole, there is a reason, even if it is simply not realistic at the moment, to push for an expanded Supreme Court.  

To balance not just results (that do matter to people, obviously), but how the process was so screwed up.  If you have three tainted seats, not because they are conservatives alone, adding seats to provide an answer is a re-calibration.  It in some way doesn't just let them get away with it and go up a level.  See, Gorsuch/Barrett. 

It is not clear -- are clerks talking? -- how much the opposition and partisan split influences the Court's rulings. Roberts by nature wants to go slow though there are a few issues (voting and race particularly) where at least long term he seems to have a plan.  Then, again, he was working in a political system that counseled care plus for most of a time (until now -- dramatic music) with a 5-4 Court.  Maybe, we will see next term.

Kagan pissed.  The first opinion today was Alito v. Kagan with a quiet short concurrence by Gorsuch (and Thomas) noting a stronger ground to attack voting rights claims by just avoiding to even have to defend them.  Roberts has been out for voting and race issues since the 1980s. 

As noted, here Alito for the Court avoided miminalism -- there was a way to give voting rights a loss but let Kavanaugh do it with a gentler blow -- which suggests the basic nature of Kagan's dissent.  It is fun to read on some level.  On other, you realize she is pissed off and repeatedly shows the majority no respect at all as law for a reason.  And, it's a dissent.  

The opinion is on its face a statutory interpretation case, so Congress can change the law.  This was done before in this general area. But, the majority is also about a tone -- concern about state power -- and sentiment. So, noting it will take time and they can only do so much, would not be surprised the Supreme Court would find a way to water down/find constitutional problems with a new law too.   Ultimately, the nature and composition of the Court is relevant here. 

The second was Roberts v. Sotomayor (again for the liberals) to make it harder to defend a disclosure law, which Citizens United actually supported as a concept.  It was a "faux minimalism" sort of thing.  Or, rather, a fake umpire move -- more like changing the strike zone than calling balls/strikes.  Sotomayor is disdainful but in a more "this is bad on law" sort of way than Kagan.  She adds a "with respect, I dissent," which sounds a bit sarcastic, but Kagan just ended with a mike drop.  

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And, the Supreme Court goes into recess until October.  There will be a conference today and orders tomorrow (usual clean-up orders). Then, there will -- if normal practice follows -- a few scheduled summer order days (rarely of note but maybe something interesting) and miscellaneous orders.  The link provides various staff retirements.  One person not on said list. 

Meanwhile, the presidential commission continues, judicial nominations continue, and other court related issues in the political sphere and elsewhere will still occur.  And, of course, lower courts will have decisions.