We have new SCOTUS related post at the "real blog."
There was no conference last Friday, but some action this week all the same. First, they worked out a bit more how the oral arguments will go in the Texas abortion cases (earlier they pushed back arguments scheduled that day to make room). Basically, the most notable thing, the state and private parties will have separate argument time, at least in one of the cases.
The next order seems to tee up an arbitration case to replace one that was dropped. See here for the details. The order itself merely grants a stay, but I think cert. ultimately would make sense.
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Oklahoma was due on Thursday to re-start their executions, having multiple executions scheduled over the next few months. The lower court held it up, there being challenges involving the lethal injection protocols. Yes, even after they spent years examining the question on their own.
(The docket page of the Supreme Court case can provide access to briefs from both sides. One thing that is a tad ironic is the claim with religious liberty connotations. It just goes to show how open ended that sort of thing might be.)
There are, as usual, various issues involved in the cases, including a claim of racism in the jury process. The first person up for execution was waved forward by the state pardon and parole board by a 3-2 vote. Okay. This shows that even a case where the details seem less iffy (murder in prison) has question marks. Moving past that the crime happened over twenty years ago. Same issues with executions so long after the crime again.
The Supreme Court -- without any explanation on either end -- overruled the lower court, 5-3 (Gorsuch did not take part, probably being involved in the proceedings in the past). The order itself only posted on the Order Page some time Friday afternoon. Various reporters posted a preliminary link right away -- that happens sometimes; the posting delay was longer here.
(The docket page for each case is an "inside baseball" thing that many will not be aware of, but it provides helpful breakdown of developments as well as briefing that helps clarify the arguments on both sides.
SCOTUSBlog has a page for each case the Supreme Court accepts for argument as well as some that are pending. These too are helpful resources. For instance, when SCOTUS grants a case, I usually can insert the case name in a search engine and the SCOTUS page for it pops up. This allows me a quick way to determine what the case is about.)
The execution took place later that afternoon. It did not seem to go well: "He began convulsing and vomited. Medical team wiped his face. He was still breathing. Convulsed and vomited more." The reporter referenced compared it to the Lockett execution. Which was botched.
The dissenting court of appeals judge and state referenced how long this is taking and so forth. What's the argument? "Hey, we could have messed this up years ago!" Oklahoma authorized nitrogen gas -- the latest "this will be great!" method -- a few years back. But, it couldn't figure out a way to formulate a way to do it.* (I sort of figured there was some problems likely involved.) The firing squad is available but last used in 1915.
If the particular drugs they have available can't do the job, they should use another method of execution or punishment. There were two other executions recently without this sort of thing happening. It is not like the state wasn't on notice the drugs could cause problems. The last two executions each had problems.
Scalia/Thomas argued a specific intent is necessary to prove an 8th Amendment violation. At some point, even that seems to have be met here. Indifference of clear possible harms at some point is enough of a red flag. The current rule assumes the state has some "right" to execute so the defendant has to show the availability of an alternative when alleging the method is illegal. This somewhat perverse rule was argued by the court below to have been met.
Either way, this result shows the problems with it. Some theoretical ancient cruelty akin to an actual burning at the stake should not be required to stop this from happening. [This seems to be in theory left open in the recent Supreme Court opinions that handwaved that being present here and/or resting on other grounds, basically rejecting proof of danger being present.]
The usual responses were made on Twitter as well. Tiresomely. It is not total hypocrisy to support execution in a few cases while opposing abortion, especially given the number of abortions. Catholics come in all shapes and sizes. The person executed committed a horrible crime. The 8A does not have a "horrible guy" exception. It doesn't take a philosophy or legal degree to realize these things. I assume many know this.
Again, if the state is allowed -- contra to the decision of the lower court, which placed a stay to allow the factual issues to be determined -- to execute someone, the Supreme Court should SAY WHY! If they should not, the three justices who think that should SAY WHY! I know Sotomayor is tired of representing and Breyer is tired from his happy-go-lucky book tour and all, but they still should have wrote a dissent.
Oklahoma does not have some "right" to constantly fuck up executing people, even if executions are currently constitutional. Well, functionally, they do.
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The Biden Administration might have split on who they wanted -- talk of a California judge who some might want to have Kagan-prepped to be a justice, but she didn't want the job -- but the acting solicitor general was confirmed to have the job permanently. Years back, did Miss Idaho (really) know how far she would go?
Solicitor General Kagan began with the re-argument of Citizens United, the big campaign case. H/t Amy Howe (and others), we now have confirmation that the new SG will also start things off with a major case: "For petitioner: Elizabeth B. Prelogar, Solicitor General, Department of Justice, Washington, D. C."
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There was a Friday conference and an order was dropped granting some cases for review. Two major issues. To quote two reporters, "agrees to consider limiting EPA's authority to curb greenhouse gases from power plants, will hear appeals from coal-mining companies and Republican-led states" and "Red States' bid to reinstate Trump-era immigration rule known as the public charge rule." The latter regarding their right to bring a suit to defend the rule once the U.S. stops defending it.
I will post this now. If anything else happens -- see below; there has been enough -- I will update.
Update: Yeah. They, decided to drop a late in the day bit. The High Federalists wanted to block Maine's vaccination mandate for not being properly respectful of religious liberty. In their view.
Barrett/Kavanaugh thinks this would be a misuse of the "emergency docket." Prof. Shadow Docket flags they seem to be applying a "when it feels right to us" rule. Which is iffy if honest. The others just reject it.
Just how much of a threat it is to religious liberty is debated.
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A final comment. It can overwhelm you if you are not careful, but this post alone shows the about of information at our fingertips these days. As someone is being executed, you can have a running commentary. Before, you can access the ongoing legal battle, reading a lot of opinions about it both in briefs, court opinions, and elsewhere. And, after, you can read more, including someone like Prof. Lain on Twitter, an expert on executions, who expressed how pissed off she was.
Just one thing. Again, it is a bit overwhelming. Still, it's pretty amazing and useful. Like food in a supermarket, what you do with it is up to you. And, those who report on it should be aware of the resources available, and try to help readers with links and so forth to better understand what is going on. It's a complicated thing to do right, but hey, there are people skilled at that sort of thing.
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* One of these days, we will have use of nitrogen gas, and it surprises me somewhat it has not happened yet. To be clear, this is not cyanide gas.
I think inertia is delaying this, assisted by there being so few executions in the last few years. The federal execution by statute follow local practice, so all of them used lethal injection. Once nitrogen is used and it seems okay, others might follow. Lethal injection surely has enough hardships.
Like I doubt there is a shortage of nitrogen or anything. We shall see, including if it will work without a hitch. Its lethal nature in non-execution contexts is only so comparable.
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