The final order list of the term, after recess begins, cleans things up. As usual, there is a lot of stuff disposed of in the process. Amy Howe -- who continues to do a good service here helping to clarify often bare bones orders and order lists -- discusses it here. I also continue to think a FAQ page on the website would be good too, to help explain various odds and ends, such as talk of things like publishing appendixes or other things.
One thing disposed of is a long pending controversy arising from the House Judiciary Committee seeking out grand jury testimony from the Mueller Investigation. There was a dispute if an impeachment proceeding is a "judicial proceeding" for purposes of the rules involved. The lower courts determined it was, but the whole thing dragged out.
The Trump Administration as the House noted "ran out the clock." Thus, the House agreed the whole thing was now moot, but hoped the Biden Justice Department would clarify the rules to prevent this from happening again. This whole thing pisses me off, including how the Roberts Court aided and abetted this running out the clock enterprise regarding various disputes.
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Death Penalty: The Supreme Court dropped one more per curiam, which was basically an "error correction" enterprise that overturned a lower court ruling in a capital case. I find this bothersome.
It is far from clear, especially with a 6-3 split [three dissents; I will assume silence means consent], that the lower court was so obviously wrong here. Maybe, there is room for debate. I'm sympathetic to the liberals here, but maybe they are wrong. It seems notable that though Breyer dissents without comment, Kagan (again) joins Sotomayor's dissent. Kagan again is in "I have no reason to compromise any more" mode.
But, intervening in another "shadow docket" case here should only be done in limited cases. They have a limited full docket and are not there to error correct. And, it's a capital case. A higher test should be present there. The author of the opinion tossed in gratuitous remarks regarding the facts of the crime, which is simply not relevant in this case.
Meanwhile, the Justice Department has declared a moratorium on executions while an investigation is performed. The terms seem somewhat limited. It also doesn't disallow supporting ongoing litigation or prosecutions in capital cases. Hopefully, more will be done. Obama didn't have any executions, but let things be. That left things open for thirteen executions in the final eight months of the Trump Administration.
Grants: Ten cases were granted for full argument. One notable one involves a challenge to Maine tuition-assistance program that prohibits aid to students who want to use public funds to attend schools that provide religious instruction.
Responses to Denials: The statements or dissents from cases not taken or sent back were all from conservatives.
Thomas again wanted to take a case to clarify qualified immunity. He also again flagged his desire to change the rule to determine libel. Gorsuch now agrees with him there, noting how there are so many new forms of media and so forth. I'm not sure how much that really matters though in theory some tweak of the rules might be acceptable. But see here.
Alito basically simply makes it known he thinks a case involving the Amish and disposal of waste water was clearly wrong. So, it's right to send it back. Gorsuch does so with more verbiage, citing a federal law particularly protective of religious based land disputes. The local nature of the dispute to me shows how troublesome it is nationalize these things simply because religion is involved. Even if the Amish seems sympathetic.
Disposing -- at least for now -- a long lasting dispute, SCOTUS will not take up the case of Washington florist Barronelle Stutzman, who declined to create custom flowers for a same-sex wedding. Justices Thomas, Alito & Gorsuch indicated that they would have granted the petition in Arlene's Flowers. They did not provide an opinion.
Thomas (with Gorsuch; Kavanaugh would take the case but did not join the opinion) did provide a short opinion dissenting from not taking a case to at least clarify the big Kelo v. City of London Takings Clause case.
The emotional thing there was that someone's house was taken for what turned out to be (from what I can tell) failed economic reform business plan by the government. Here, it's a vacant lot. And, it is not merely to fight "blight" (which historically had racial implications given slum clearance), at least as discussed by Chicago's brief.
Kelo received a lot of criticism, including from some liberals, but I think it was overblown. States could limit economic takings, and there was no dispute really that even a house could be taken for any number of rather trivial "public" purposes. Such as an unnecessary government building or something. The person was compensated. Rules were in place to avoid procedural violations. Kennedy noted such in his concurrence.
This case is a step beyond. Maybe, just maybe, a home has special significance -- a sort of Fourth and Fifth Amendment running into each other matter. A recent Supreme Court case honored the importance of the home. But, this is a darn lot. Like the Amish case, in this cases, I think respect for federalism and local discretion is the way to go.
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Recent opinions had various citations that includes website urls. The Supreme Court now stores hard copies to avoid "broken links" on a separate page. It is in need of updating, various cases arising since the last entry. Talking about separate pages, the press release page has a notice about a new public relations officer. I saw someone honor a retiring Court librarian as well. The staff at the Court is small and those involved in court business have a lot of respect and sometimes love for those involved.
They also scheduled the summer order lists, the first somewhat later than usual. In 2019, going back to normal times, the first one was mid-July. Ditto 2018. Now, it's August 2. The retiring PIO is still cited.
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I will end with Breyer. He joined Kagan's fiery dissent in the Voting Rights Act case yesterday, but as some noted, it was just a dissent. Doesn't make it pointless. Over the years, injustices happen, and you have to fight them. Just letting them go without comment, or doing so mildly, is not great. That can help enable in its own fashion. Maybe, her dissent will help push voting rights law reform on a national and state level.
But, it was just a dissent, and as one commentary notes, the majority was a sort of Republican talking points affair. Breyer not retiring risks leaving his replacement significantly at the fate of such people. The Democrats control now and it is doubtful Breyer will stick around so long that a Democrat won't at least nominate his replacement. But, it's 50-50. Democrat control of the confirmation process is not guaranteed there.
And, now is a good time to have a confirmation even if one looks at things from his perspective. It would be a smoother one and it would lower the temperature a bit as strong critics look and see a younger black progressive leaning new justice. Imagine doing so in 2022 in an election year.
I'm sick of those badmouthing RBG, who I have at least partially defended given all the factors. But, either way, she's dead. Breyer is not and is aware of all that happened. Him not retiring is wrong. People are right to be pissed off at him. He is acting like a clueless asshole here. And, if it is true (as referenced) he hired a full allotment of clerks, why even -- see, e.g., Strict Scrutiny Podcast -- make his retirement even on the "who knows" level. Those who said "no evidence he wants to resign" were right.
And, now we have to cross out fingers some more to hope nothing bad happens. OTOH, if the Dems lose control of the Senate, dealing with replacing the seventh seat on the Court might not even be the most immediate issue we have to worry about.
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