SCOTUS Watch: Execution & Other Matters

Execution: Rick Rhoades is the fifth execution this year, three of them by very problematic rushed executions by the federal government in January. He is the third executed by Texas. He was sentenced for a double murder thirty years ago. Rhoades (per the article) confessed, but the long delay alone as discussed by Breyer here continues to constitutionally and as a matter of policy very problematic.

The article cites various due process claims raised. The Supreme Court was asked to stay the execution particularly to address a claim that evidence could show that the jury was tainted. The Supreme Court, to me wrongly as a matter of principle, rejected this without comment. Before the Supreme Court makes the final okay of taking a life, a brief statement explaining why the final claims are not worthy of review should be given. 

The sister is cited as unsure about capital punishment, but more secure here because he confessed.  But, putting aside the three decade delay, the system of executions are problematic, even if some lottery system will pick one or the other who particularly are less so.  Rhoades was prosecuted thirty years ago for murdering two brothers as part of a robbery.  This deserved a long prison sentence. Selecting him out for execution to me is a step too far.

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I added another blog, a new one that will address SCOTUS, but not about decision; other matters of interest will be focused upon.  

This article argues Kavanaugh's finances is a misguided subject for left leaning opponents to focus upon. His deep pocked parents are a basic source of his money though he's part of the problem since he is not really upfront about the matter.  He gets away with it because of a loophole in disclosure rules.  I basically agree that I don't think there is a big conspiracy there, though better disclosure could help to address the controversy.  

(I also don't think there is some big conspiracy regarding Kennedy's retirement.  He retired after thirty years, at age eighty, when a Republican got into power able to replace him. His son's financial dealings years earlier involving Trump is latched on to, but the idea it was some sketchy quid pro quo to cover it up is basically silly.  There are simple reasons for Kennedy's decision, which is quite open to criticism given he enabled Trump.) 

Congress will have a hearing on the shadow docket and Prof. Steve Vladeck continues his helpful informing the public function.  The written testimony, btw, includes an explanation of how the Texas abortion is crafted in such a way to keep abortion providers continuously at risk even if a specific lawsuit is won.  To belabor something, one critic of some of the pushback to me skipped over that sort of thing, arguing all you have to do is violate the law and the matter will be decided.  

[ETA: I expanded the last paragraph.  But, more notably, Justice Alito had a speech at Notre Dame Thursday that addressed criticism of the "emergency docket."  At first, it seemed like it would not be accessible to the general public.  This led to complaints, which might have influenced the move to make it available by live audio.  His strong criticisms of the criticisms were themselves criticized.  I appreciate the open audio policy -- this sort of thing should be open to the public to consider.]

Finally, with oral arguments coming up next week, SCOTUS has announced COVID testing rules for advocates for the next three months. A positive test will require phone arguments for the person involved.  Vaccination does not appear to be required.  Limits, including mask requirements, for those who do come to arguments are also cited.  Recall the public is not allowed, but the press with full credentials are.

Addendum: I missed a press release last week referencing a ceremonial investiture ceremony for Barrett this Friday. That is in the final days of the 2020 term, the 2021 term starting next Monday.  I'm unsure why it is taking place now instead of when she was forced on the bench illegitimately last October.  

ETA: The congressional hearing referenced is on the shadow docket and SB8, the Texas anti-abortion bounty law. This is the second congressional hearing on the shadow docket and Sen. Whitehouse has also focused on other Supreme Court related subjects. 

I hope once the presidential commission is done with its work -- perhaps November -- serious effort will be placed to pass legislation. But, this sort of thing is helpful to publicly address the matter. Note too Victoria Nourse's three part discussion of her new Trump impeachment casebook and the importance of Congress in constitutional law. 

Each entry is useful and her comment in the latest that criticizes the amount of attention the courts get respecting "constitutional law" as  if only the courts do that is something I have voiced over the years. Years ago, I wrote a personal view of the Constitution -- a lot has changed over the last fifteen years there -- and my open-ended views was not just meant to apply to what the courts themselves should apply. 

Marijuana use very well can be a constitutional right (restrictions also could interfere with them) but also something legislative action should secure since it is not so clear that the courts should strike down anti-marijuana laws. The Bill of Rights, for example, is not just something for the courts to apply.  It is a statement of principle that guides us.  This was flagged when it was first put forth by James Madison and others.

It still holds true.  One lawyer on another blog was quite critical when I raised constitutional concerns regarding the handling of certain nominees or suggested the impeachment process has constitutional limitations. How silly! It's all political!  As if it is but a policy choice to badly apply constitutional text and principles here.  That is a shallow and on some level dangerous approach.  We need higher standards than that.