Supreme Court Watch

Stupid Asshole Alert: The Supreme Court has a conference on Friday and then goes on a sort of mid-winter break (next conference is 2/18; next arguments the week after), so the whole Gorsuch is not wearing a mask thing was due to at least taper off some. But, then during the morning oral arguments, this was reported:

“Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends,” said a joint statement from Sotomayor, one of the court’s most liberal members, and Gorsuch, one of its most conservative.

This is the sort of thing someone says when they feel miffed (long term SCOTUS reporter Nina Totenberg dropped a behind the scenes/justices in disarray story) even though it is not productive. But, darn, they were wronged, and they just want to clarify it. It is a very Gorsuch thing to do. 

The "warm" business is just trying too hard.  Also, it just calls attention to the whole thing.  Finally, the reporting was that [to exactly quote] the chief justice "in some form asked the other justices to mask up."  Which the usual suspects (including NPR) immediately pointed out.  It comes off as something Sotomayor did to shut Gorsuch up, knowing he was just digging the hole further.  Like she laughed at him behind his back.

(Dahlia Lithwick, adding some more details, suggests she actually was saying that honestly.  Okay.  Let me just note that early on there was reporting even his fellow conservatives thought Gorsuch was an ass. His alleged reasoning here wouldn't give me the feels.  You aren't required to have sweet warm friendships here.  Just be respectful colleagues.)  

THEN, Chief Justice (ah to be a fly on the wall) releases an official (these things usually on the record) statement that  he "did not request Justice Gorsuch or any other justice to wear a mask on the bench."  So, NPR still stands by the reporting, noting that the reporting was "in some form" (suitable vague).  

Then, there is the concern about the exact wording, but I think that is cutting things a bit thin.  If the justices (or Gorsuch) are gong to harp on "ask," they are being just too darn literal and strictly so at that.  

On a basic level, they don't seem to be challenging the basics?  How could they?  Sotomayor isn't there, the others are wearing masks, and so forth.  It would be pretty bad if Roberts, as the presiding judge here, didn't say at all that he thought it would be nice if they wore masks. It was the simply nice thing to do.  Gorsuch could have just wore a damn mask.

The original article compared the current Court to the FDR/Truman Court where there were strong hatreds behind the scenes.  When it comes to Gorsuch, I'm getting the idea that might be true now, even if the article used the history there to contrast how conservatives are more united now. 

Trump Documents: In a short unsigned order, the Supreme Court got around (if a lot quicker than the last time) to rejecting Trump's request to block release of documents to the 1/6 Committee.  The comment about how the underlining question was "unprecedented" seems wrong, but maybe that was just to assure near (Thomas dissented without opinion) unanimity.  There is also the usual possibility that a quickly handed down per curiam will be less careful than an opinion the result of a full process.  

[The "8-1" talk is technically wrong since we only know five people agree to the result with only Kavanaugh and Thomas on the record, but I'll stick with the eight talk.  Silence assumes consent.  

Thomas' wife was the subject of a "we know this, but can we have a summary version" article, mixed in with some discussion about recusal debates.  Only thing we know for sure is that both of them surely are great friends of Sotomayor.]

Kavanaugh (wrongly as noted there too) flagged the lower court opinion assuming a current President alone can block a past president's request to block material here.  The well written lower court opinion more clearly (without making it absolute) was loathe to second guess a combo here:

On this record, a rare and formidable alignment of factors supports the disclosure of the documents at issue. President Biden has made the considered determination that an assertion of executive privilege is not in the best interests of the United States given the January 6th Committee’s compelling need to investigate and remediate an unprecedented and violent attack on Congress itself. Congress has established that the information sought is vital to its legislative interests and the protection of the Capitol and its grounds. And the Political Branches are engaged in an ongoing process of negotiation and accommodation over the document requests.

And, on top of that combined effort, the arguments provided by Trump are weak, especially given the clear need.  Anyway, the result here that (some kneejerk comments by some aside) this Court isn't going to just be a sucker for any conservative argument.  There are limits.  

The bottom line here is also that basically there is an assumption that there is now a clear official SCOTUS acceptance of the legitimate nature of the 1/6 Committee. Now, since even the lower court talked about ongoing negotiations, that only takes us so far.  There can be new "this goes too far" arguments.  

Still, it's an important moment and is what should have happened in January 2020, when in the midst of the impeachment [#1] process the House asked SCOTUS to speak along the Trump financial case, but SCOTUS simply rejected them without comment.  Which was bloody wrong.

Opinion Day: We had another case of an opinion day being a nothingburger.  I'm not sure the need to have one for a single case. Anyways, with Thomas dissenting on jurisdiction (arguing the issue was not properly brought), Sotomayor wrote a 8-1 criminal justice opinion involving the Confrontation Clause.

By  chance, it involves a horrible crime out of the Bronx, but don't think that is the reason she got the opinion.  The fact Alito (along with Kavanaugh, just highlighting a point; concurring with the opinion itself all the same) supporting the defendant suggests it was a rather narrow matter. 

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Later on, Sotomayor also penned a dissent for the liberals when (as expected) the Supreme Court did not grant a request to send the Texas abortion case [Texas banning most abortions is now out of the news basically]  back to the district court.  This might have had limited effect, but it still should have done it.  

Breyer wrote separately basically to say "come on."  We say ... come on retire (some rumors again arose recently that he is thinking of doing so soon).  

Conference Day: Monday has been flagged to be an opinion day though that technically means they "may" release one.  I'm not aware of a time where they changed their mind, but that is how it is phrased on the SCOTUS website.  We did have the Texas abortion opinion in December, but lately that has been basically nothingburgers.  Still, interesting cases left from the October sitting, so maybe something of that nature will drop.  

They also granted one case, for April argument, regarding "Whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country."  McGirt v. Oklahoma, which relied on RBG's vote, has caused much drama in the minds of the Oklahoma Justice Department apparently.  We will see how the Barrett Court handles the matter; they resisted a request to consider whether to overrule.  

The bottom line issue involves Native control now that the Supreme Court held that tribal rights were not relinquished.  Congress could clearly settle the matter, which to me is best as compared to relying on somewhat hazy determinations of what happened a hundred years ago.  Somewhat doubtful.