I am not the only one interested in minutia and cute little things.
Breyer was front and center in some stuff this week, all in some fashion not too remarkable. First, eagle eared (mixing metaphor sorta works here) listeners of oral argument caught what sounded like a spoiler. A comment on what "just" was decided actually sounded like a case that was not.
As I said, if he actually sent a message that "another blow to abortion rights advocates by siding with a Kentucky GOP official trying to defend the state’s abortion restrictions," it is far from a surprise. That was the expected result.
The question would be why a case argued in early October has yet to be decided. Then, again, only eleven opinions (not counting notable "shadow docket" material) were handed down, with multiple per curiams meaning multiple judges have yet to author an opinion. Yes, I still don't want to call the Trump trio "justices" since I think their confirmations were corrupt.
[The shortage of opinions will be handled to some degree with two opinion days now announced for next week, Thursday and Friday. Does this mean one opinion a day? We shall see.]
Breyer's comment implied it was recently decided in some fashion, but the actual opinion (Amy Howe in the SCOTUSBlog live tweet joked [?] maybe it was a troll) handed down on Thursday was a copyright opinion. Bird watchers might appreciate Breyer's short opinion for six, but the SCOTUSBlog summary underlines how minimalist the whole thing is.
[The summary: "In Unicolors, Inc. v. H&M Hennes & Mauritz, LP, the court ruled 6-3 that lack of either factual or legal knowledge can excuse an inaccuracy in a copyright registration under the safe-harbor provision in 17 U.S.C. § 411(b)(1)(A)." Many cases are technical with limited scope. This one appears particularly unimportant.]
The High Federalists -- Thomas, Alito, Gorsuch, the last not joining part of the short dissent -- didn't go along for procedural reasons. They argued the argument offered was a johnny come lately one and would have disposed of the case. The majority argued it was close enough. Suffice to say Alito particularly has not been consistently concerned about form.
Eagle eyed observers noted her D.C. Circuit handed two opinions down yesterday, which is not the normal date. A similar thing was done before Kavanaugh was nominated. This is just form -- her being nominated was expected. There was also a back-up, if necessary. The drawn out affair is somewhat tiresome (and we just have started). I'm aware of how these things go -- the system has a lot of theater and covering bases.
President Biden's big supporter being on Judge Michelle Childs side as well as various details about her record (plus and minus) put her out there. She's still up for D.C. Court of Appeals. [Jackson being confirmed will give Biden another vacancy in a key COA to fill. Democrats need to continue to confirm -- there are multiple people in the queue.]
Likewise, Sen. Lindsey "Drama Queen" Graham latched on to her as the "compromise" choice. And, after the news came out, he trolled some about how Jackson (who he voted for already, knowing she was on the short list) is the "left" ... blah blah. He's a troll and unlike the likes of Tuberville, you can't even convincingly say he can't help it. Years more of this asshole.
Judge Jackson is a great choice for a variety of practical and substantive reasons. Her criminal justice (public defender etc.) record is a plus alone. She had the usual top law school background, but you can't have everything, I guess. Jackson was born in D.C., but grew up in Miami. So, that is at least not yet another tristate/D.C. area connection. The link above also shows (a lawyer I know on Twitter also flagged this) she has procedural chops. Breyer should appreciate that sort of thing.
The Eeyore view here is that we still have a 6-3 Supreme Court and (like with Breyer himself) the next nominee might be long coming. Handwaving the first black woman to the Supreme Court, one who has multiple great things going for her, is a bit too much. Change happens in a variety of ways. This matters and damn let's be happy with it.
I don't deny AT ALL the problem. One reason I thought Breyer should retire was that a judicial nominee of this scope would bring an opening to talk about wider issues. A black woman being nominated does just that in a basic way. The specific issue I had in mind, of course, was the nature of the Supreme Court, and the courts more widely. We should not let the (appropriate) celebration of the first black woman nominee to erase this.
The Biden Presidential Supreme Court Commission -- which basically has entered the memory hole (aided and abetted by many strong critics of the courts, who badmouthed it as useless or even counterproductive) -- again comes to mind here. A leading black woman civil rights figure, who some felt would have been a very good choice here, was on the commission. As was the recently deceased (and much beloved) Walter Dellinger.
The "6-3" also comes to mind. Yes. I am not simply resigned to granting that as the state of affairs as I was when Justice (sic) Clarence Thomas was confirmed or something. I am still fucking angry at it. Each Trump nominee has a problem. Each confirmation is corrupt in its own way.
This corrupt process is already bringing first bitter fruit (for some), fruit that aided and abetted the people behind the nominations and confirmations. Don't go and on about Trump and 1/6, and so on, without speaking about the sorts of things that helped him gain and retain power.
And, this includes rejecting even limited refusal to normalize (no matter how much you strongly disagree ... you are normalizing them Eric Segall) enablers. People praised his support of dissent there. Like it's easy to talk the talk there. It's like supporting cute babies. But, it was not merely not being open to dissent for someone cited to draw a line at national Federalist Society events. Can't say he isn't engaging at all.
"It won't matter" is also bullshit. His fellow bloggers don't consume animal products. That won't stop animal abuse. It is a line drawn. And, just joining with the other side, being their designated cute grumpy dissenter, helps them. It legitimizes them. He even has noted he was his law school's Federalist Society advisor at some point since no one else was available (I'm not sure of the exact details.) It's for the students! They need to be part of the future Thomas feeder program or something.
A Justice Jackson is likely to be on the Supreme Court for at least twenty years, going by recent trends. So, we have to look down the road here. Her vote and voice will matter and will matter more in the future. And, the long haul also means promoting causes which will not win out at the moment. To add to the conversation and move the needle somehow. I'm talking court expansion here, but not alone.
I still question the idea she should have been nominated over Garland in 2016. I agree with others that she is a very good option now. She has been vetted, repeatedly confirmed, and on the merits is a great choice.
There are a ton of bits about her including being related by marriage to Paul Ryan and replacing Garland on the D.C. Circuit. She even did improv in college and at one point worked with Matt Damon ... who later portrayed Kavanaugh on SNL. This sort of trivia is what I have always live for. I was the kid who knew it was not just 2.5, but 2.54 centimeters per inch.
Anyways, the formal announcement was made, and good luck.
ETA: Americans United for Separation of Church and State has issued a statement supporting her nomination. I take that her talking about faith during her remarks at yesterday's announcement (people noticed it though it wasn't that heavy) was not a turn off for them.
But, in part given her role mostly as a district judge and a career more focused on criminal matters, her views on such questions are somewhat unclear. There are limits of clarity here even in this much more ideologically secure age of judicial nominations. (Even compared to the 1990s.)
OTOH, Kagan had a limited writing trail, and she has brought few surprises. Kagan did have certain specific leanings, including a stronger respect for precedent (see her joining a three person dissent in the unanimous jury case). Even Hallmark movies have a few surprises.
We can suppose she would generally put forth a liberal view, but even the liberal/moderate wing of the Supreme Court has had shades there. Is she more Sotomayor or Kagan/Breyer on this question?
To jump ahead, the betting line is at least a 52-48 confirmation, KBJ receiving three Republicans for court of appeals. Many more Republicans voted for her much less important sentencing and district judge positions.
Them not voting now (less so Graham) isn't much of a "gotcha." Maybe, more will vote for her? The betting line also is that Republicans will make a bit of noise (they already are), but will not do too much to delay things. Who she is overall is not a surprise; she has been confirmed three times already, including the last time when her SCOTUS nomination was pretty likely. Yes, we have Kavanaugh-like surprises out there.
One more thing ... as I said yesterday, Jackson's nomination is something to celebrate. Even Elie Mystal, whose grumpiness and pessimism is sorta his thing, was happy yesterday. Skimming Twitter -- a special occasion, I broke my new rule to keep off Twitter totally on weekends -- you can see the simple joy, especially among black legal women.
Mystal also wrote a good commentary about not taking fair shots at black people who played by the rules (here going to elite institutions). I thought the same regarding some of the criticism of Judge Childs' legal work. Ditto someone like Kirsten Gillibrand having some corporate work of a dubious nature earlier in her career. The issue that had some bite to me about Childs is when someone looked at how she decided certain criminal matters while a judge. There she had more discretion.
One more bit of trivia -- though Marshall and Thomas were once married to black women, tossing in KBJ, each black justice would also have been in interracial marriages. Thurgood Marshall's second wife was Asian. And, KBJ's husband (this is hinted by her connection via him to Paul Ryan) is white. Obama's mother was white and Kamala Harris has a white hubby.
[KBJ's husband is a physician, not a career political operative like Ginny Thomas. She has two children, both around college age.]
The Baháʼí Faith encourages such diversity in marriages. I am not sure if there is some point to it all, but it seems rather statistically notable that so many "firsts" on a national level are in biracial relationships.
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An order dropped today too. "The joint motion of the parties and the Solicitor General
for leave to file a revised redacted joint appendix for the
public record is granted."
This involves a case argued next week. So, it sort of explains why it was dropped now, instead of being part of the Monday Order List. Why certain things like this are flagged on the Orders Page while various other happenings are not is not totally clear to me.
An argument recap in the Native American dual sovereignty double jeopardy case also was helpful to me. I was confused listening to the oral argument, in part because the case might turn on limited grounds. It has already been decided in the 1970s that tribes are separate sovereigns for double jeopardy purposes.
The Supreme Court upheld the dual sovereignty concept in general there not that long ago. But, the specific types of tribal courts here arguably are too connected to the federal government. It's not an all/nothing thing there. Gorsuch is also a joker, since he is a tribal rights guy and was a dissenter in the dual sovereignty case.
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