SCOTUS Watch: Orders etc.

In 2015, moreover, the United States rejected a request from Polish prosecutors to facilitate Abu Zubaydah’s testimony under the countries’ bilateral mutual legal-assistance treaty. Nonetheless, the government would permit Abu Zubaydah.

Coverage of the states secret case orals suggests that the government is likely to win, but (as in the past) litigation alone has some value. For instance, even conservatives like Barrett say the "t" word (torture) aloud. And, multiple judges (Breyer, Sotomayor, Gorsuch) also specifically asked about having the GITMO prisoner to testify himself (see also that article).

A letter (cited in the opening) sent to SCOTUS from the Biden Administration clarified the situation to some extent.  [The letter is linked at the article; CNN covers it without providing a link.]  The government, leaving open the right to redact for national security, is willing to let the prisoner write about his experiences using the process (explained) in place.  This all shows how even limited access to lawyers and judicial oversight can provide some checks to the system in place. 

PCSCOTUS: We continue have coverage of the draft chapters of the presidential commission's report.  SCOTUSBlog, which even as a blog specifically geared to SCOTUS has had limited coverage, has a helpful report on the proceedings on Friday.  It is fine to criticize and/or discuss the limited nature of the commission's actions etc.  But, this requires a full accounting of what they are doing.* 

(I also saw an interesting footnote that was reported earlier.  Two conservative members of the commission resigned, including notable "sane" Jack Goldsmith.  Why?  Who knows, but it is a bit weird, and notable. They so far don't want to say why, which you know, is wrong. Note the "do nothing and support status quo" theme of some coverage is a bit off given some of the critical comments referenced in that article alone.) 

Order List: There is no conference this week, so there will be a break from the weekly order lists, but today's was somewhat more notable than usual.  First, beyond the usual odds and ends of some note, the Supreme Court granted two cases involving tribal matters for full review.  They do not seem to be major cases (as if I'd know!), but we shall see.

As noted at that link and by various tweets on Legal Twitter, the Court also by two (by definition) unsigned per curiams -- without any cited dissents (so, you know, without dissent in fact), reversed two lower court cases that denied qualified immunity in abuse of force cases.  This is basically "error correction," something that they supposedly do not really want to do.  And, a few exceptions aside, it usually goes in a conservative way. 

Some comments on Twitter suggested the phrasing might be a flag to additionally restrict qualified immunity cases (e.g., "In one of its summary rulings this morning, #SCOTUS dropped a strong hint that *circuit* precedent may no longer be sufficient to provide “clearly established” law. That would be a *huge* barrier to damages suits against government officers who violate constitutional rights.").

Qualified immunity -- one of the many things that federal legislation can address if there is a will -- has been overused.  Without dealing with the weeds, the basic idea in my view is that people should generally have a broad right to at least try to show abuse occurred.  They might lose.  But, they should at least try.  And, individual actors (like a police officer) still might be protected; the ultimate issue is having some ability to get relief from the government in some fashion.   

Error correction clearly has some intent on clarifying the law though it is done in a rather opaque way.  Various justices last term flagged their concern about giving proper discretion to police and other public officials in certain emergency situations and so forth.  Such and such officer goes to a call where someone is allegedly at risk, and they have to think in the moment. Fine enough.  As applied -- clarified by cases they take for review -- the people can show their actions are acceptable.** 

Miscellaneous Orders: After I wrote this originally, SCOTUS dropped two separate orders.  One allotted order time for various cases where the Solicitor General has time.  Another granted a request by a challenger to speed along the SB8 case (this is not the U.S. case against Texas).  What this means is unclear -- various theories on Legal Twitter.

Book Review: Skimmed: Breastfeeding, Race, and Injustice uses the experience of the first black identical quintuplets to examine this subject.  I first saw it when Melissa Murray (always good for material) flagged in on Twitter.  (As I recall, someone talked about food and the law.)  And, it is appropriate to include here because there is a lot of law, including Supreme Court cases, involved in the mix.  The rest of the book tells their story. 

One thing (though the date is wrong) that is cited is an old Fifth Circuit case that says breastfeeding is an aspect of the constitutional right to privacy.  I am familiar with the case since repeatedly it is cited in string cites when some lower court opinion references privacy cases. As shown here, it has not had much influence as precedent, even as applied to the parties involved apparently.  But, the book's legal discussion includes what "might be," and on that front, it still is important.  

One interesting connection is the involvement of Susie Sharp, who became the first (white) female Chief Justice of the North Carolina Supreme Court.   I have a biography of Susie Sharp.  This book is written by a white woman, but Prof. Murray is not.  

Also, the book makes sure to make some comments about the freedom of choice, but is clearly pro-breastfeeding. In a few spots, perhaps a bit much, since many women very well would want, e.g., a doctor's office to have stuff on the wall supporting both breastfeeding and formula.   Finally, yes, it is wrong to "moo" at people who are nursing.  I apologize, however, for laughing a bit when seeing that.  It's okay to be a bit mean silently.  

A suggestion to include the book as an entry at a new book review website was turned down for the time being because of limited attention.  But, "Books in a Flash" is finally online.  I will mainly contribute "History" books for review and those interested can click the History link here, a few books already up. 

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* Note this line from a criticism (after I wrote this entry) on relying on term limits (which alone isn't enough, besides being a long shot anyway): "Perhaps this result was to be expected from a commission ostensibly created to study Supreme Court expansion."  

If this means "along with other things," sure. As spelled out in the executive order, "reform proposals" (more than expansion being out there) should be addressed.  I'm unsure if that is quite how many take it though. It sort of implies that was the primary reason they are there.  

The linked Slate article says these things -- including the shadow docket which has had a fairly recent uptake -- been "studied to death."  As compared to let's say civil rights when Truman had that studied?  It is upset conservatives (two less now) are on a commission -- apparently you need strong (as compared to weak links like Laurence Tribe) supporters of court expansion for legitimacy, but well conservatives? Surely not. 

The fact the analysis notes the commissioners -- who are criticized as too moderate, wary of change -- pushed back shows maybe we should give them some credit.  

** One of the cases is highlighted in this blog post.

The lower court opinion does not come off as patently unreasonable.  The Supreme Court per curiam -- without full briefing or argument -- decides by examining the facts (not their job really) that the situation on the ground is different from a previous circuit case relied on by the court of appeals.

The blog post reminds us of the George Floyd case.  I'm unsure if that is fair, since this case involves a much more momentary use of force. But, what bothers me yet again here is that the case seems to turn on debatable details that the Supreme Court reached out to "error correct."  

Maybe, the lower court was wrong.  If so, it was far from glaringly so.  The case they cite has multiple similarities to the current case.  The notable difference seems to be that the guy here had a knife on his person. The court of appeals, however, note he also was just shot with a beanbag gun. And, there was reason to judge the knife was not a danger.  

These are FACTUAL questions for a jury to decide.  If the case is so clearly reasonable, that can be judged then.  Consider a call that seems to many to be pretty clear.  A replay very well might determine there is no grounds to overrule.  You still have a chance to try.  It's not for replay office to second guess an agreement among the umpires that the call was at least somewhat open to debate (if that is the rule!).  

The Supreme Court tries less than seventy cases for full argument these days.  Why the hell are they interfering with these marginal cases?  They do not only refuse to change the rules for qualified immunity.  They want to reach out and error correct the hundreds (or more) cases like this, in the process affecting many more. Without argument.  It's wrong.