SCOTUS Watch

Orders: The Supreme Court disposed of a lot of cases that were examined during the "long conference."

Breyer flagged a case involving someone on death row and solitary for the last three decades to reaffirm his constitutional concerns on the matter. 

Sotomayor flagged two criminal cases, again not dissenting but noting her concerns. She did dissent in a denial involving an alleged wrongful shooting/death, raising qualified immunity questions. Qualified immunity claims arose in multiple petitions last term and it looked like maybe they might take one to significantly address the matter. No such luck. 

(Qualified immunity regards not even allowing someone to be able to try their luck because the legality of something is unclear.  One complaint is that this is applied too strictly; after all, the person is just trying and might not win.  Here, Sotomayor argued the appellate court wrongly deemed matters of fact to be settled.  

This is one of the areas certain forms of "originalism" can help the claimant since it is argued that such immunity was not traditionally deemed appropriate.  Again, I find originalism dubious and reliance on such history even for a good reason a problematic enterprise in part since things have changed over time.)  

One notable case, which the Supreme Court simply affirmed (Gorsuch/Thomas would dismiss for lack of jurisdiction, that is, the very power to hear the case), involved a claim that D.C. residents are unconstitutionally denied the right to a voting member of the House of Representatives.  Years back, Sen. Hatch (R) supported a voting D.C. representative in return for giving his state one more member. 

I have generally felt this claim was weak, but looking at the briefs, I'm somewhat less sure now.  At the very least, the clause giving Congress power to legislate over the district very well might give them the power to do so as a matter of discretion.  OTOH, the lower court case (summarily affirmed) referenced that rejected the claim is pretty convincing.

2021 Term Begins: The new term begun on the First Monday with a live audio link on the website (really two) and Kavanaugh taking part remotely.  (This is the first time that happened; before, someone could have used tapes or so on to take part while not showing up, but they didn't "phone in" like this.)  Thomas must have liked asking questions over the phone because he asked some questions.  Seemed like things were a bit sedate early on. 

I'll repeat my usual complaint that multiple members of the Court should not be there. This makes it somewhat painful even to listen to them. I realize one argument is that you have to accept reality.  But, I will not blandly do so.  Breyer should have retired and the others for various reasons should not be on the bench.  I am not ready to grant legitimacy and just treat them as justices (GKB) and move on from there.  No.  

Ernest Johnson Executed:  The Supreme Court dealt with the means of execution in the past.  Johnson argues lethal injection, given his specific condition, is cruel and unusual.  Granting this, the misguided current doctrine is that he has to show the availability of an alternative method of execution.  The liberal dissenters argue this is true, either nitrogen gas or a firing squad.  The majority rejected that this is the case. 

[It is still somewhat unclear if this is totally true -- if the only available method is literal burning at the stake, is that okay if that is the only thing available.  The conservatives simply deny that is happening in these cases.]

Johnson was found guilty of a triple murder.  So, as to the crime itself, this is more "worse of the worst"  than various other cases.  Again, that is basically the test in place -- there are many homicides, but you need special reasons to execute someone.  But, as is often the case, there are mitigating concerns.  Here the main one is intellectual disability, which the Supreme Court has held is a total bar if serious enough.   

But, SCOTUS didn't agree -- rejected with no comment from anyone (like the last one).  So, he was executed, and again it was wrong.  The only value of the whole thing is that we don't have to wait until late in the evening to see the (mostly) inevitable (perhaps with a dissent). 

Some death penalty articles can be found among the publications here. As noted, I engaged with her recently on Twitter and she is writing a book on the death penalty, a special area of expertise.  

Preview: To add one thing, the Presidential Supreme Court Commission (remember them? we had coverage of Alito et. al. giving public speeches and don't recall any reference of PSCOTUS!) will have another public meeting 10/15.  Following the links, the meeting is said to be about discussing the public report that they are supposed to put forth.