Order List: The basically notable (somewhat) thing in the order list is the granting of an arbitration case. We were told in the SCOTUSBlog relist watch that it was the one case relisted. So, this is not really a big surprise.
Issue: Whether the arbitration-specific requirement that the proponent of a contractual waiver defense prove prejudice violates the Supreme Court’s instruction in AT&T Mobility LLC v. Concepcion that lower courts must “place arbitration agreements on an equal footing with other contracts."
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Death Penalty: Two executions were scheduled this week. The first is for someone who murdered his wife (and did other horrible stuff) in Mississippi. This blow by blow has a lot of details.
"One thing that moved this one along is that he wanted the execution," [Mississippi Department of Corrections Commissioner] Cain said of the speed in which Cox's planned execution has panned. It all is rather fast. The last execution (some might find this surprising since it seems that it would be in the so-called "death belt") was in 2012. He was sentenced then. As things go, nine years is rather fast.
This is one of those "first principle" cases on some level. He's white. Doesn't seem to be a case of innocence or some issue that taints the judgment in some other fashion. Not saying there isn't one (he previously raised certain procedural claims). But, if you are going to execute someone, this seems to be who you would go with. Since it's a "volunteer" case, no SCOTUS order. OTOH, maybe even here there should be an automatic appeal to make sure the execution is appropriate.
Even there, this was a bit of a red flag: "David Cox pleaded guilty in 2012 to eight charges, including capital murder, sexual battery and kidnapping. A jury unanimously sentenced him to death for capital murder and 185 years for the other charges."
Seems a bit off he is in effect only getting 9 years. I can understand accepting his waiver of claims if it was a longer period of time. One recent case was like thirty years. But, this hasn't even been a decade. I think execution is different. Still, he seems to want it, and maybe force him to stay in prison more than someone who didn't kill and raped/kidnapped would receive.
Yeah, that is not great. Anyway, he was executed shortly before his 51st birthday. The article notes "Cox, 50, would turn 51 on Nov. 30." Okay. Things supposedly went smoothly. Okay again. FWIW, there are media witnesses at these things, and unlike the last Oklahoma execution, there was no citations of apparent problems.
The whole thing underlines the basic problem of capital punishment. Something like three dozen people are on death row in the state, but this one execution occurred because he agreed to it. And, in the process, it almost seems like an early birthday present, the guy avoided years in prison for horrendous crimes. Plus, each use of the death penalty has its own problems, including the possibility of more problems and basic moral and constitutional concerns.
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Julius Jones' received a lot more attention, even before Cox was executed. The Supreme Court already 6-3 rejected holding up the execution, leading to the first Oklahoma lethal injection for a number of years. It didn't go that well though the state (shocker) said otherwise.
Few years back, Jones' lawyers challenged his conviction as racially discriminatory, a matter that the docket page shows hung around with various extensions for over a year. He also claims innocence. Jones has been in prison for twenty years now for the crime.
(On the racist front, a somewhat related issue here involves the state's treatment of Native Americans, including a still pending jurisdictional dispute that in part involves capital cases.)
Jones earlier this week got a win. Oklahoma’s Pardon and Parole Board voted 3-1 to recommend clemency for Julius Jones. They recommended Jones' death sentence be commuted to life in prison with the possibility of parole. It looked like the governor would reject that recommendation. Turned out he only partially did so -- he decided LWOP. I'm not sure how final that truly is; hopefully there is some possible wiggle room.
It was also reported that the family's representative wanted to make clear that they were not just bloodthirtsy. They thought the death penalty appropriate justice (the daughter of the murder victim Cox raped, e.g., viewed his execution). Empathy would accept that is not an outrageous sentiment, even if you think it is very wrong to think that way.
So, we are 1/2 for Oklahoma executions since they started up again, and 0/2 of executions without a hitch.
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Presidential Supreme Court Commission: PSCOTUS is still debating the draft report. Looks like the commissioners want to be clear, adding a proviso to the draft materials: "discussion materials was prepared by a working group for the Commission’s use in studying and deliberating on the issues" and "should not be understood to reflect the Commission’s views or those of any particular Commissioner" nor are they "final."
Well, that has been a theme for me too in response to critics of what isn't the final report. I have not read through the longish materials, waiting to see the final report. A commission formed by Biden isn't going to be some BFD anyway, but the optimistic take is that it can be a useful means to educate and help push the rock up the hill at least somewhat. Plus, there already was some ability of dissenting voices (including for expanding the Court) to have their say. All of this is of some value.
As other stuff is happening, PSCOTUS remains largely forgotten, including when SCOTUS somehow gets in the news cycle, like when Alito gives a speech. A few comments are tossed about it, what has been done so far, including those dissenting voices that can be further brought to light, not given the notice that they might get. Again, I am not overly surprised.
Anyway, they talked about the report -- nothing too exciting -- and ended with a note that they will come back in around three weeks to discuss the draft report (maybe updated some more) again. Maybe decide whether or not to submit it to Biden, which would be mid-December.
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Other Actions: We have a listing of oral arguments for January 2022, one flag of how fast this year is going on some level. Each time, I remember how the current tainted SCOTUS was put together with three members whom I don't find worthy of the title "justice." After guns and abortion etc., the cases will be somewhat more low key.
There was a conference on Friday and an Order List (likely thin) is scheduled on Monday. Also, there is a flag of at least one opinion, one likely to be not controversial. They will only release it electronically according to Amy Howe (SCOTUSBlog) though they are back in person for oral arguments. Might be because of the mini-holiday break.
ETA: Nothing special Monday morning. Four page Order List (nothing notable) and the one opinion was the Mississippi water dispute (it lost).
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