SCOTUS Watch

Abortion: The abortion arguments from last week, of course, continues to be a major area of concern. Dahlia Lithwick, in part from disgust involving Kavanaugh, had for a time took a break from Supreme Court coverage. She appears to have at some point came back in some form. She interviews one the advocates here, including the tidbit that the advocate has a teenage daughter. 

Order List:  The week started with an Order List.  Nothing really of note, except again for the usual run of the mill things (what is a "prohibition" and why did Alito not take part in the consideration of one of them?) that warrant a Frequently Asked Question page.  (A "prohibition" is a type of writ issued that rules that a lower court this not have jurisdiction over a case.  Like habeas or re-argument, these are rarely if ever granted here.) 

The one mild exception here is a brief statement by Justice Sotomayor that she is sympathetic to an opinion below regarding a grant of qualified immunity.  She does this regularly -- she notes that it is appropriate, using normal rules, to not grant a case.  But, Sotomayor then flags that the case is worthy of concern all the same.  She usually does this with criminal justice matters, including capital cases.  Other judges do it from time to time, but she does it more often.  It is part of her "informing" role.

Live Arguments:  SCOTUS also dropped a notice that they will continue to have limited access to public oral arguments (including fully credentialed press) the next two months, keeping out the general public.  In return, they will continue to have live arguments.  They should just declare the latter to be permanent.  Video pending (in our dreams).  

It was noted earlier that the one time they had a full opinion this term, it was released automatically online.  This led some to worry about the continuance of the practice of opinion announcements.  A unanimous water dispute opinion dropped during Thanksgiving week will hopefully not be a silent precedent that opinion announcements are no more.  

(And, after I wrote this but before posting, we have another opinion announcement day without them showing up tomorrow.  Whether or not it is a big case, this is not a great development.) 

PSCOTUS:  The Presidential Supreme Court Commission had a brief session to provide various final remarks and vote (unanimously) to submit their report to President Biden.  A vote does not mean the commissioner agrees with the report in each and every case.  Also, a general agreement (as suggested by a statement before the final vote) seemed to arise that the test was if the report fulfilled the basic mission statement.  

The report, basically as intended, does not make recommendations.  It provides a summary of a range of issues, including arguments on both sides.  Some find this pointless, basically, but there is very well a value to do this.   The issues are put forth to the nation and the matters are made of national importance.  The final decisions are up to other actors.   

Sherrilyn Ifill president and director-counsel of the NAACP Legal Defense Fund, is one of the commissioners.  She supported both the purpose of the commission and its work.  When others say it was a "dud" or use other disparaging remarks, perhaps they can talk to her -- that is, while not honoring her life's work (she's stepping down from her NAACP position) though repeatedly not referencing her being on the commission.

Maybe, if more attention was put on the commission, it would have affected their work. As is, some critics was upset the commission was alleged "stacked against" court expansion.  The latest report notes that some commissioners support court expansion.  People find other things to complain about.  And, looking at the most recent version, I would like a more down to earth approach to help deliver its message to a wide audience.  But, maybe, we can try to use it as reforms are pushed?

Anyway, here is a Washington Post summary of things, including  support from change by a Clinton judicial nominee, arguing that "The court has been effectively packed by one party and will remain packed for years to come with serious consequences to democracy.”  She also rejected the mere "appearance" of fairness and did not worry that strong criticism would net threaten the integrity of the judiciary. 

It is not surprising that a Bush nominee had a quite different view.  But, such competing views was also seen as a positive development by the commissioners.  I'm fairly accepting of that point of view.  The article suggests some common ground on an advisory code of conduct for SCOTUS and livestreaming.  I will try to read it when the report is final.

Arguments: There were a few oral arguments this week, including for an important case involving requiring the state to fund religious schools. 

Back in 1981, Widmar v. Vincent, there was opposition (8-1) to a strict view of separation of church and state beyond what the Supreme Court put forth as a floor.  Justice White, who also was open to allowing more mixture, was the sole dissenter.  Ditto in certain cases involving public religious displays.  But, Locke v. Davey allowed some "play in the joints" with only two dissenting.  

We are moving away from that, which is not compelled as general matter.  It shows just what "religious liberty" means is rather debatable here, when Madison himself supported separation, not some "even playing field" that included a "neutral" funding of religious education.  Sotomayor dissent forthcoming?

Justice Souter was on the lower court panel -- in 2020 -- upholding the state law.  Not surprisingly, given his rules as a justice.  He probably would be depressed by the oral argument, which suggested there is a problem with drawing lines on what schools are "religious."  So why not direct funding of religious schools, even if that isn't the case at hand?  

Death Penalty: After what looked like a botched execution even to a media witness who saw these things over the years, Oklahoma executed Bigler Jobe Stouffer this morning.  A morning execution seems novel though maybe we should be happy we don't have to wait all day for the expected Supreme Court denial and so on. 

The state pardon and parole board voted to support commuting his sentence to life in prison.  The guy nearly 80, executed for something in the mid-1980s (though it was final later because of appeals), this would probably seem more reasonable than for some one else.  He was in prison for killing a school teacher, part of an attempted windfall scheme.  

He alleged innocence, but doesn't seem it is one of the stronger cases there. This is one of those matters of principle cases.  The final claims dealt with lethal injection, which the Supreme Court clearly doesn't care about much any more.  The better claim at this point is a matter of discretion -- if the board split on the question, maybe decide on the side of life?  If the guy was ungenerous in prison or something, maybe you would worry.  But, doubt this 79 year old was.  

I understand that this case might not work using usual rules for SCOTUS grants.  But, it's an execution, one after one that at least appeared botched.  A statement at the very least from SCOTUS (why it was rejected) or Sotomayor (probably) would still have been appreciated. And, warranted.

And More: At least one opinion is scheduled tomorrow (they now flag when this will happen though it is still a guess about what will come down), but they won't do so in person.  Last time, there was expectations it would be the Texas abortion cases.  It turned out to be a water dispute.

I will use a separate entry to deal with that case.  A conference is also scheduled with an Order List for Monday.  I might combine things for a Monday entry, the Order List likely another yawner.  If it is a big case, it might be useful to have a few days to process (often things pop up that I add) anyway.