Supreme Court Watch: Order Day

December had some action, but the Supreme Court is fully back in the groove. We have orders, more cases likely to be scheduled for oral argument this term, and more Thursday opinion days scheduled later in the month.

Friday Grants: Five cases were taken for argument via an order dropped Friday afternoon. This is a common practice -- the judges have a Friday conference, some order is dropped that afternoon, and then a general order list doing a bunch of mundane things (usually dominated by refusals and some mundane things, including perhaps asking the solicitor general's opinion on a case or things like waiving some procedure usually required for litigants) is dropped Monday.  Or, with a holiday, Tuesday.

The cases taken were not really a surprise, with four of them on the top of the list provided by the SCOTUSBlog re-list watch.   Some criminal justice types are wary about the cases taken in that department, given the leanings of this Court.  One regards a dispute about what procedural avenue is allowable to challenge methods of execution (a path repeatedly narrowed by the Roberts Courts).  Another might threaten Miranda protections.

An anti-death penalty advocate/scholar wrote about the request of some to be executed by firing squad.  The article highlights this as a "violent, brutal, and frightening way to die," though these days, some experts argue that it is better than the error prone lethal injection method.  And, the logic of recent jurisprudence is that when you challenge such methods, you need to point to a possible alternative.  Some try nitrogen gas, though since that was never used, that can be deemed unavailable.  So, firing squad.  

The first link also summarizes a fifth grant, which involves a conservative religious liberty FOX News special about a coach praying on a football field.  As summarized in the first link, more so in briefs and opinions below, a basic problem seems to be that the question presented is not actually the reason why he ran into trouble below.  Some truly private right to pray is not at dispute here.  Comes off as a bit of a troll grant which the original conservative four took now since Barrett is here. 

Order List:  Nothing too notable except for Gorsuch dissenting from a denial in a case involving a tax exemption for ministerial housing.  The case was re-listed (on conference discuss list) repeatedly, so one or more judges found it notable. 

Gorsuch is in high dudgeon about "bureaucrats" making religious decisions and all, but (1) it's a tax deduction, so the religion is asking said bureaucrats for a privilege (2) there is likely a reason the other religious liberty friendly judges didn't go along with him. So, figure it isn't quite as simple as he makes it out to be. 

(The vaccine cases also had some links in them, so the online sources page has been updated.)

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I covered Gorsuch not wearing a mask at oral argument and how that matters regarding the vaccine cases last time.  The overall matter was addressed in a Slate commentary  as ultimately a form of "judicial immunity."  Special rules seem to apply to the Supreme Court and they do not have to really say why that is justified.  

I would note that the general rule about wearing masks in the Court building (looking at the linked procedure) makes an exception for when advocates are "presenting argument."  I guess that would also apply to the judges at that point.  We are left to assume what Gorsuch does in other parts of the building.  But, unlike talking for thirty or more minutes, the others show that you can easily not wear a mask for questions.  

[It is quite possible, professors and others do it, to talk with a mask on all the time.  When I was a poll worker, dealing with incoming voters all day, I always wore one. I had to talk to each voter and all.] 

Chief Justice Roberts' end of the year report argues that judicial independence is key and that we can trust them.  Oh?  It would be helpful if they did basic matters of open government here, including posting press releases for the general public informing us about Sotomayor (and once Breyer) not being involved.  Something simple like that.  

But, basic civil behavior (as noted in the article, Gorsuch wrote a damn book sanctimoniously promoting that) would include wearing a mask next to two senior citizens, one with diabetes.  If you can't handle that, why should we trust you?  The Court by their actions are just taunting us, knowing they have little to worry about given who runs things now.  At some point, maybe they should be pushed.  

I also saw this bit in the commentary: 

For decades, court reformers—and most recently President Joe Biden’s commission on court reform—have noted that the court’s financial and ethical rules are purely advisory, that nobody needs to follow them and that the justices will not enforce them against one another.

This points to one value of the commission, which many (including some liberals I respect) basically treat as useless (Prof. Litman of Strict Scrutiny sneered at its "report" as the only response from Biden and the Democrats as if that is all that is going on) without trying to see that it can have some value. The commission, with its range of membership, offers a sort of official summary of the situation which can be cited as an agreed upon starting point.  

The commission's marching orders was not to set forth a series of recommendations, no matter how much some rather that be the case. It was to examine the situation; which it did.  The report has a few basic things for which there is general agreement about (I have not read the thing, I grant, but that seems to be the idea from reading various commentary).  

But, there is some value to put things on the table, an agreed upon starting point.  The establishment of commissions to study a matter is a common thing.  Sometimes, suggestions are provided.  So, we have that step done. Why not try to get the benefit of it as much as possible?  And, sure, push for more, as the Supreme Court keeps on poking the bear.