SCOTUS Watch: Got Some Opinions

Abortion (Procedural): The case that should have dropped first on Thursday was a 8-1 opinion that Justice Breyer clearly dropped a spoiler about in a recent argument though the result was only anyway surprising (maybe) as to the votes.

This was the Kentucky abortion case where changing political control led to changing positions regarding defending an abortion regulation. It also turned on what state law allowed regarding who can defend a law and the specifics of this particular ligation.  Kagan/Breyer concurred separately to say the lower court was wrong to not allow the suit, but would have avoided the constitutional implications of the main opinion. 

The situation here opened up a chance to limit abortion rights, but the overall principle in some other case could have a liberal result.  A person supporting abortion rights might be suspicious, but this sort of thing suggests the wider nature of the litigation.  Sotomayor dissented, concerned about opening up a can of worms, including given the specifics the case that seemed to her to be abusing the process.  

I was wary about this case, thinking the conservatives on the Supreme Court was reaching out to help anti-abortion challenges. It is not like procedural rules have been consistently followed over the years.  But, reading a summary, I'm somewhat reassured.  Again, this sort of thing is not necessarily ideological in application.

[Bit of a glitch on the release of this opinion of Thursday.  This came out since with Twitter, reporters could announce things in live time.  A typo was also eventually corrected. 

Breyer's opinion was released first though release usually goes by reverse seniority.  The press also had access to Alito's opinion as well before it was posted on the website.  The website  followed the ten minute rule that was applied when there were live opinion announcements.]

States Secrets:  The abortion procedural case was written by Alito.  Alito also wrote the second (unanimous) state secrets opinion.  This was released on Friday.  The Supreme Court (without separate opinion) held that the lower court was wrong to think a specific provision of the FISA law (allowing courts to examine secret materials) overrode the state secrets privilege.  This was in relation to a lawsuit against the FBI.  

This is troubling, since the state secrets privilege has been abused, and FISA would seem to be a way to balance secrecy and justice.  But, we are talking about the reach of a statute here, so good policy is not the only issue at hand.  I would myself think the interests of justice warrant interpreting the law here to -- if possible -- provide the exception. I also would support change of the law to so provide.  

Abu Zubaydah isn’t asking for much. Although the U.S. government has never charged him with a crime, it has detained him for two decades on the belief that he is a terrorist. Before transferring Zubaydah to Guantanamo in 2006, the government tortured him at two different “black sites” in Thailand and Poland. Today, Polish prosecutors are investigating whether to bring charges against the perpetrators of these abuses, and they’ve asked Zubaydah to submit evidence. He now seeks depositions and documents that would confirm his inhumane treatment in Poland—information that’s already been disclosed by unofficial sources.

The bigger case involved a lawsuit to obtain information on what is known to be the U.S. government being involved with torture and (to add insult) doing so as a result of mistaken assumption of the evidence the person had.  This sort of thing is going to happen.  

If you want to be generous, you can cite the stakes (9/11 and all that).  But, it happens.  And, when it happens, there should be a way for the U.S. government -- as much as if it was some sheriff who beat a confession out of someone (or tried to do so) -- to admit error and provide some degree of relief for the person.  Repeatedly, this simply was not done in this context.

A fractured Court (led by Breyer) rejected the request here.  Only Roberts fully went along.  Barrett and Kavanaugh had a short concurrence (they joined most of the opinion) that to me seems to underline how limited review of state secrets claims will be.  Thomas and Alito didn't support most of it, thinking he had even a weaker case.  Kagan agreed somewhat but would not have dismissed the case.  

Gorsuch (with Sotomayor) had a strong dissent. Gorsuch's anti-government power side (far from consistent) and outraged tone was appropriate here.  The best you can say about Breyer's opinion is that he was not really the fifth vote.  It did not skip over that "torture" was involved. He might have figured, especially since he did leave Z. a chance to try again and that a lot of the information is already known (but that works both ways!), him writing the opinion would lead to the best result as far as one could.

But, the net result was more of the same -- state secrets, which deserves sarcasm quotes here, was used an excuse to hide and paper over official wrongdoing.  It is -- well ironic is one way to put it -- something that we are told that the U.S. government -- who wrongly tortured someone in more ways than one -- cannot be forced to officially admit something (that is known) since it will interfere with future investigations. 

[To add one thing, one of the articles flagged that the Supreme Court is selective about supporting concerns about international commitments as seen by its blocking President Biden's position in the "remain in Mexico" immigration case. We have legal commitments that block some absolute discretion here and on balance this is a bad call.]  

Boston Bomber: The other case on Friday involved overturning the lower court blocking the death sentence here because certain evidence that could have mitigated guilt was not allowed.  There was also an issue of  pretrial publicity; the dissent did not address this, resting on the other matter.

One notable issue here is that not only did Biden say he was now opposed to the death penalty, but there is currently a moratorium in place (if based on somewhat limited grounds).  The Justice Department could have simply conceded error here (or changed positions and not appealed), the only real justification not to do so being that maybe the lower court opinion would apply not just for death penalty cases.  They shouldn't have continued the case. 

Barrett with Kavanaugh gratuitously concurred to question if a court of appeals had the general oversight power of district courts applied here. The majority [via Thomas] flagged that there was some doubt on the issue, but noted that the government did not challenge it.  So they granted it for sake of argument, but did hold that the court of appeals overreached here.

I have written elsewhere about the problems inherent in a system that allows for the imposition of the death penalty. [Cite omitted] This case provides just one more example of some of those problems.

Breyer wrote the dissent for the liberals.  This is one of those cases where even people upset about the death penalty might be wary about opposing it.  But, the dissent suggests even here, there are troubling aspects.  Kagan and Sotomayor [both, as a correction made clear] didn't go along with this brief reference to Breyer's wider doubts about the death penalty.  It's non-absolute phrasing makes me a bit annoyed the two felt unable to join. 

More Opinions: Monday has been announced as another opinion day.  Maybe, we will get that old (fast tracked) religious minister in the death chamber opinion?  Kagan and Kavanaugh have yet to write though it's possible/somewhat likely one or both could have written a per curiam. 

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New Justice: Judge Jackson's hearing has been scheduled.  Spring will bring that bit of theater.  This suggests the whole thing should be over pretty quickly, and the senators (now with their 50th member back) can focus on confirming lower court judges.  Do as many as you can by December!  

One quirk here is that she should be (knock on wood) confirmed with months to spare.  Justice Byron White notified Clinton about the same time that he was retiring. But, RBG was not actually nominated until June.  Here, we will have a sort of "justice elect," which seems not to have happened before. (It did happen for a lower court judge.)

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Conference: The judges did not take the bench to release opinions but did have a conference today.  An Order List will come on Monday.  There is no conference scheduled next week.  The week after does have one.  Then, we will have two weeks of arguments, including as KBJ testifies.  

After the Order List drops, there might be miscellaneous orders dropping in the next two weeks.  And, there is by now basically the general assumption that that from time to time some shadow docket or whatever thing will drop too.  I will yet again say that I wish they at least had audio of opinion announcements.  Other courts have video.