SCOTUS Watch: Orals, Hearings, and Opinions

Okay this week was busy ... the confirmation hearings are handled separately.  The orals were somewhat in the weeds and not too ideologically divisive, but did involve multiple international law issues as Jackson noted the Supreme Court didn't handle it that much.  Next week has one involving a quirky federalism issue.

Order List: The Order List was cited as "quiet" by Amy Howe. The one notable thing was a statement by Alito (with Thomas) involving an "intern at a legal-aid clinic run by a religious non-profit, applied for a job as a staff attorney at the clinic." The non-profit's views on sexuality and his church habits led him to be denied the job. 

Was this appropriate?   Basically, there seems to be an attempt by the religious conservatives on the Supreme Court to find the right facts (this is less troubling than if a florist or donuts shop did it) to provide an opt-out of anti-discrimination laws.  We are not talking about "ministers" here, a teacher at a religious school, or decisions involving who joins a church.  

It's a step beyond.  Maybe, it's tricky.  I might be open for states to have the discretion to give wider exceptions.  I am wary, however, of a national rule that requires the state to have one. I do not trust this Court to apply the right rule. In fact, I think Kagan and Breyer might have went too far in so-called "ministerial exception" type cases.  Or, whatever this is.

Shadow Docket Time:  On Wednesday, a stay request regarding congressional maps for Wisconsin was rejected without comment.

OTOH, a state map, a dispute decided by a state supreme court opinion with a Republican nominee going along with the liberals, was blocked by a per curiam, unsigned shadow docket ruling.  Who was involved? We don't know exactly.  We know that Sotomayor and Kagan dissented publicly. 

This "publicly dissented" business annoys me. The general assumption should be -- at Bloomberg SCOTUS journalist Kimberly Robinson noted this too -- should be silence means consent. It really amounts to a 7-2 opinion.  Now, logically, Breyer would likely have agreed with the two, but who knows?  There might be some reason he in effect wanted to stay silent, including with the nomination of his replacement pending.  

The result according to people I respect to give a good sense of these things is "bizarre" and blatantly wrong on procedure and substance.  The whole thing comes off as gratuitous and makes me more angry at these assholes.  I'm annoyed at Breyer for just silently going along as well.  

Thomas Ill:  Thomas had flu-like symptoms last week and could not go to the oral arguments (three days).  A press release was released that "Justice Thomas will participate in the consideration and discussion of any cases for which he is not present on the basis of the briefs, transcripts, and audio of the oral arguments."  

The press release (dated last Friday) says that he "expects to be released from the hospital in a day or two."  It is unclear that this happened or what exactly happened.  So, not surprisingly, some people wanted more.  

TMZ reports someone asked Breyer about it while he was walking somewhere and he thinks that Thomas is "fine."  Okay.  I actually thought, without knowing more, he is.  Is this mistaken? It might be.  But, making assumptions when 70 something people having medical issues that linger on is standard stuff is in my view not the best call.  They will be made.

And, then on Friday, there was a report that Thomas was released from the hospital.  Maybe, it is helpful to be a bit more transparent, especially when other news raises extreme possibilities. Even now, a request (says SCOTUSBlog, per Amy Howe, my regular source for news here) for more details was denied.  I wonder if we got anything off the record. 

(SCOTUSBlog noted: "Justice Clarence Thomas was discharged from the hospital on Friday morning, the court said."  As is often the case, this public message to reports was not posted on the website.  Then, Amy Howe wrote a more detailed -- though there aren't many -- analysis.)  

[Ginni Thomas material moved to a separate entry.]

Opinion Day: Two opinions on Thursday, only one justice dissented between them, but one is an issue of some importance.

Censure: Stolen Seat Guy had a short unanimous opinion that basically is a form of error correction.  CA5, the Southern circuit that gave us such charms as the SB8 litigation, gave a wide protection to free speech involving censure.  It is unclear how often this sort of thing actually comes up.  

Furthermore, as is regularly the case in the Roberts Court, the actual thing decided was limited. As SCOTUSBlog summarizes, the nine held: "a member of a community college board of trustees does not have a viable First Amendment claim arising from the board’s purely verbal censure of him."  

The opinion notes that a proper challenge was not made to the non-verbal restrictions such as a limited inability to run for board office positions or access to certain funds.  In some other case, the opinion said a stronger censure with teeth might be deemed unconstitutionally bitey.  Reasonable.

Death Chamber Religion: To quote SCOTUSBlog again: "Ramirez v. Collier, the court ruled 8-1 that a Texas death-row prisoner is likely to succeed in his claim that he has a right to have his pastor audibly pray and physically touch him while he is being executed."

[This is a longer business with sixty pages of opinions. Both the majority and dissent each are about 22 pages. The concurrences around ten pages combined.  The headnotes are five pages.]

This was a case that addressed a general issue that arose repeatedly and after around a handful of shadow docket opinions (going various ways) on the topic, they finally took the case on an accelerated basis for full review. And, then -- including as executions continued (though a few were held up) -- took months to actually decide it.  One wonders why.

Roberts wrote the opinion. Sotomayor wrote a short concurrence to talk about the right of prisoners to bring claims (a major issue for the dissent).  Thomas leads with the details of the crime and the idea Ramirez was abusing the system.  But, the general question here is not unique to him. There are many prisoners with serious religious concerns and line drawing will arise.  A case to provide clarity is a basic role for SCOTUS.

Kavanaugh (partisan lying rape-y guy who likes beer) wrote a bit longer concurrence to talk about how complicated the issue is, including (Jackson's assurances aside) that "policy" decisions were made by the Court here.  And, yes, the issue is complicated, and the prisons should have some discretion.  The presence of ministers and vocal prayer seems generally okay.  The touching part to me was more iffy.    

[A bit of inside baseball. Kavanaugh is the only one without a signed opinion.  There is a reasonable chance he wrote at least one of the per curiams.]

The issue here is largely statutory since there is a federal law protecting rights of prisoners and spelling out the rules of prisoners bringing challenges.  There are also constitutional concerns overhanging it all, including equal protection of all religions and religious liberty.  Religious liberty involves some action, that is part of "exercise," and dealing with that in the modern administrative state is a tricky issue.  

There are many cases where claims to me seem inappropriate, including when it wrongly clashes with discrimination laws in public accommodations.  I also am wary about evenhandness. We need more than an assurance something is "traditional forms of religious exercise" to cite the opinion today. The weighing here is also detail specific. An evenhanded application can be tricky.   As to that, I'm still not completely sure the rule against touching while someone is being executed is unreasonable.  

Still, this all seems fairly reasonable, and the opinion leaves some ground for states to balance things out and use different rules.  Thomas does not seem to be against the basic substantive balancing.  His opinion is more regarding abusing the challenge process.  I am a bit surprised neither Alito or Barrett, for different reasons, did not concur separately.  The time taken might be a matter of negotiation between the eight.  

More Shadows: To quote Jimmy Hoover of Law360 (tweet), after the two opinions dropped there was a miscellaneous order.  His summary: "Supreme Court temporarily blocks New Jersey from withdrawing from the 60-year-old Waterfront Commission Compact with New York, which polices the shipping port shared by the states."   

Steve "Mr. Shadow Docket" Vladeck notes this action in the original jurisdiction docket is "remarkably rare," if not perhaps "especially controversy."  The matter is of local importance.  If it is notable, and it surely seems to be, New York deserves a damn explanation.  

I saw someone said that they should explain themselves whenever they make a ruling. That is simply too extreme. They make lots of run of the mill rulings, including not taking thousands of cases. But, they only single out a few miscellaneous orders.  They can explain themselves here.  

Conference Day: The justices (and whatever some should be called) met for their fairly usual Friday conference today. Order List on Monday.  They also announced (as they now regularly do some time on Friday regarding the upcoming week)  will be one or more opinions next Thursday.  

Shadow Docket: Biden Wins! As basically expected, since at least up to a point they are wary about being insane when it comes to vaccines, the Supreme Court 6-3 granted President Biden's request to overturn a lower court hold up regarding making vaccination decisions as commander in chief.   To wit:

The district court’s January 3, 2022 order, insofar as it precludes the Navy from considering respondents’ vaccination status in making deployment, assignment, and other operational decisions, is stayed pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought.

Kavanaugh provides the sole explanation about a page and a half long which (reasonably) references the usual regard giving to military discretion and all that.  There is little reason why the rest of the Court could not basically say the same thing, more or less.  

[Kavanaugh didn't provide some absolute rule though did speak of "extreme" respect for military decision making.  Note the Biden Administration didn't say vaccine exemptions didn't apply to the military.  They made a more limited argument. Plus, we should be wary of some absolute rule.  The military can make mistakes.  But, a high test is valid.]

As Ian Millhiser noted, the Supreme Court should have clearly sent a message here.  The shadow docket, however, sends vague ones, especially when (like here or in the NY/NJ case) they provide absolutely no explanation.  This will help invite the usual suspects to continue to cause problems, if doing so a bit more carefully.  A good case can be made that a line was crossed here that warranted something more. 

Thomas without opinion dissents. Alito (in part comparing this to the case just decided not involving Navy operations as compared to a limited context involving executions, that would not actually stop an execution) with Gorsuch dissent.  Thomas dissented in that case, so that might be one reason why he doesn't go along.  Amy Howe in her summary notes that even Alito hedged somewhat on the reach of his argument. 

And, yes, I'm going to say 6-3, even if we only know on the record the opinion of four of them.