SCOTUS Watch: Final Breyer Argument Edition

The final oral arguments of the October 2021 Supreme Court term were complete. Chief Justice Roberts noted the 150th argument of a federal government lawyer (Edward Kneedler). The official audio/transcript of the case was complete. Then, he made another personal statement:

"For 28 years this has been his arena for remarks profound and moving, questions challenging and insightful, and hypotheticals downright silly. This sitting alone has brought us radioactive muskrats and John the Tiger Man." Roberts choked up as he added that "we leave the courtroom with deep appreciation for the privilege of sharing this bench with him."

It was a touching statement and shows that Roberts himself deeply appreciates Justice Breyer's role on the Supreme Court. Breyer is a bit of lifer, starting on the court of appeals back in 1980, and deeply believes in the ability to work together and obtain a good result. His latest "book" was a bit too naive and fatuous about that. But, it is an honest and appealing effort.   We are truly at an end of an era of sorts, for good or bad.

(It would be nice if we had video of this moment.  Since it was not technically part of the oral argument, the Supreme Court audio doesn't even provide it.  Oyez.com uses that feed.  C-SPAN does have Roberts' remarks, and they can be found at the end of the audio here.)

Arthur Lien, a longstanding court artist, is also retiring.  But, there might still be stuff for him to draw this term.  

Death Penalty:  Four executions were scheduled for the last two weeks of April.  One actually occurred.  It still isn't clear what the screw-up was that stopped the execution in Tennessee.  One red flag in executions in recent years is the move to keep many details secret, which is more glaring with problems with lethal injection protocols and suppliers.   

The very dubious Texas execution of a woman whose child died on unclear circumstances was held up in part because her very guilt is unclear. Basically, enough time has passed that the right thing to do is to release her.

South Carolina decided problems with lethal injections warranted making the alternatives electrocutions and firing squads.  Of the two, though bluntly shooting someone is seen as too personal and direct, the latter very well might be the best (so to speak) for the person killed.  But, that is being held up, though it isn't clear why.   South Carolina has another execution scheduled mid-May.

Opinion Day:  The one opinion handed down was by Chief Justice Roberts (6-3, normal split) with Breyer in dissent.  Kavanaugh/Gorsuch concurred to suggest that the better way was to cut off the option in question unless Congress clearly authorizes it.  Breyer added a quote by his old boss (Justice Goldberg) to show the importance of bring such suits.

The matter involves the right to bring a certain type of emotional distress damages action against certain federally funded bodies.  The ability to do so was rejected.  The specific case involved a deaf and legally blind woman who was told by a leading therapy provided that they would not provide an interpreter, who she needed to communicate.  

From what I can tell, the decision extends an older precedent in a way that is arguable but far from compelled.  One other personal bit is that a disability lawyer, whose website notes he has three deaf relatives, argued the case.  Listening, his argument seemed a bit halting, but one of the hosts in Strict Scrutiny Podcast flagged at the time his background as possibly a reason for that.  That is, communicating with the deaf would be a bit different. 

Some did some inside baseball guesswork and suggests the abortion opinion (same argument session) will now be given to another person.  Maybe so.  Or, maybe the case is a special case, and the usual policy of equally apportioning opinions will be handled a bit differently here.  I understand the desire to predict, but I'm ready to wait to June.

The automatic release online of the opinion did not come with a "R" number on the opinion page.  That means another case was coming, but Roberts is the most senior.  So, going by the usual practice (nearly always followed), any opinion would either be by him or per curiam. 

A statutory dispute over a railroad law (with Barrett not taking part) split 4-4.  The 4-4 split means the lower court's judgment in LeDure v. Union Pacific Railroad remains standing. The lower court from adopted a narrow definition of the "use" of a locomotive and, in doing so, rejected a claim from an injured railroad worker.  

But, no national rule is established by the judgment, which is basically the point of taking the case. The justices did have fun with a bunch of legal hypos and little engine that could stuff at the argument.  The case also shows how judges can split in various ways, especially in non-ideological cases.  

Prof. Nourse (who should be on the 7th Circuit, to cite an old argument) flagged the split to show how textualism has a lot of play in the joints.  IOW, it is far from some magic judicial restraint solution.  Law is about making judgment calls and drawing lines.  

Finally, it suggests maybe we should have a system -- like other courts and foreign supreme courts often manage -- where a justice by designation can be used.  Kennedy or Souter [O'Connor ill] would be a logical choice, but that isn't the only way to go.  A sorta non-result in a few cases isn't really a big deal, but again, it is common practice to have a judge by designation. 

There was also a typo correction in the Puerto Rico opinion. 

Conference Day:  There will be orders and opinion(s) on Monday.

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Meanwhile ... "Federal judges and Supreme Court justices must make more timely and accessible disclosures of their financial holdings and potential conflicts of interest under legislation that’s one step closer to becoming law after a voice vote in the House Wednesday."  Baby steps.  

There is continuing pressure to have a binding system of ethics applicable to the Supreme Court. In practice, it would realistically still be voluntary, but there can be ways to flag violations.  And, likely, it would have some effect.  A hearing flagged Thomas, which is simply reasonable given how far he has gone and his long tenure/importance, but not only him.  Republican claims of hypocrisy is understandable, if not credible on the merits.  Anyway, a binding ethics rule should be a non-partisan thing.  

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We also finally had some clemency and pardons dropped. The best approach would be a comprehensive reform there.