SCOTUS Watch

RIP Walter Dellinger:  Walter Dellinger was a leading liberal legal voice and top member of the Clinton Justice Department (OLC / Acting SG).  One of his last big public moves was to be a member of the Biden Presidential Commission on the Supreme Court.  Given he had to argue various federalist cases, Dellinger repeatedly ran into some trouble.

A slew of kind words when news of his death came out, SCOTUSBlog set up some remembrances (moving on from Breyer), and Dahlia Lithwick talked about him as well.  They all were very respectful of his legal knowledge and skills as well as his kindness and humor as a person.

I only know of him from afar, but the kudos all seem appropriate. I liked one bit of his in the oral argument for Printz v. U.S. where he argued that the fact state officials had to made some sort of decisions didn't disqualify the federal program. After all, "every private who sorts potatoes thinks that... between large and small ones thinks that when you get a medium sized potato you're making a policy choice."

We always need good public servants and he was a great one. As was Harriet S. Shapiro, a lesser known SG, who her obit notes "joined the solicitor general’s office in 1972 and spent 29 years there."  She died at 93 earlier this month, and her story hopefully will not be totally lost here. 

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Gilbert Ray Postelle: Sixteen years ago, a fucked up family (dad declared incompetent to face trial because of brain injuries; brother given LWOP) was involved in a four person murder based on what turned out to be a mistaken revenge deal. Gilbert was eighteen and high on meth.

The Oklahoma pardon and parole board might have closely split already in recent executions, but this was one a 4-1 reject vote.   Not that many will cry over this guy.  The execution is still dubious and even here arbitrary.  His brother received LWOP.  If the details suggest Gilbert somehow was "more guilty," it was overall a marginal thing on some basic level.  

The guy was part of a fucked up family and killed as a teen while high on meth.  Execution is not going to deter here.  As to retribution, this is less troubling than various executions.  I still do not think he was so much more guilty, in a calculated and cruel fashion, to warrant it.  And, I still think prison time in death row conditions is rather serious. Ask his brother.  

Oklahoma still has a questionable recent history on execution procedures. The justices are done with worrying about that.  Doesn't change that. If an execution goes down there without a hitch, it's a matter of some good luck.  A good usage of the Eighth Amendment does not rely on that.  

As to other due process issues, it is probable he doesn't have that great of a case.  So, perhaps that is why there was no end of the line Hail Mary type final request for the Supreme Court to reject. He was executed Thursday morning.  After four executions, we will now have a trial on the lethal injection procedure.  

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STOCK Act: Fix the Court has long been concerned with financial disclosure.  They recently flagged this issue, including arguing justices shouldn't even own stocks.  

So, they were quite happy a form of a disclosure law has now passed both houses of Congress.  Differences between the two are now subject to conference, but the bipartisan nature of the bill provides hope agreement will be obtained.  

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Promoting The Cause: An article was dropped after I published this entry regarding a recent Barrett speech.  At the time, I was pissed at her fake talk of judicial restraint (she is all "law" as compared to more open-ended "equity" etc.), but you know, we have been down this path already in her public remarks.  But, the Vox piece is worth citing.  

The fact these people (including Gorsuch) at various points are wary about having the public/press get coverage of this sort of thing is dubious at best.  I do welcome them publicly expressing their views, even if only to show how full of shit they might be.  They do at times are at risk of crossing some line (both liberals and conservatives), but that isn't reason for them not to do that at all.

Justice Breyer, who is not shy about publicly doing this, had yet another moment to share his views in a conversation that was aired on C-SPAN.

It also is not totally new. John Harlan (I) actually was a law professor for  a long time.  He might have only expressed his views mostly in asides, but he clearly in the process did do just that.  Joseph Story wrote a whole constitutional commentary.  John Marshall's biography of Washington is another case of constitutional views coming out in asides. And, so on. 

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Conference Day: After a break, of sorts, the Supreme Court is back. Friday is a conference and there will be an order day on Tuesday.  Monday being a holiday.  Next week also has oral arguments.  Also, we might get a justice nomination announcement. I still think Jackson.

An order was dropped to deal with certain matters, including breaking down the argument in two cases. A major case of Biden v. Texas (and Missouri) is also added to the docket for argument in April.  The case involves power and discretion involving migrants from Mexico.  

A second order, for the time being, denied relief because of changing circumstances.  The matter involved a challenge of a vaccine requirement and the challenger actually didn't think the change was enough.  Among the documents cited is a letter "dated January 44, 2022."  Might be a typo.

(Actually, it is January 14th.  The letter has an attachment with another dissent regarding how the student "Doe has developed natural immunity to COVID-19 from a prior infection, her religious beliefs forbid her from receiving any of the COVID-19 vaccines."  

It is unclear such "natural immunity" will be complete; anyways, eventually, we might find out that some variant requires another vaccine.  Note, how the dissent cites a "statement of Gorsuch" repeatedly as if he wrote the opinion of the Court.)

The Supreme Court also has announced there will likely (they never said definitely) be opinion or opinions next Thursday.  The Court will not take the bench. So, yet again, there will not be opinion announcements. Again, this is wrong.  It is not necessary for them to be there to have that.