SCOTUS Watch

This is pretty modest; a plaintiff in a malicious prosecution case must still show that the prosecution ended in a "favorable termination." What the Court holds today is that "favorable termination" = no conviction, rather than some affirmative proof of the plaintiff's innocence.

— Steve Vladeck (@steve_vladeck) April 4, 2022

Before a bit of a break until next week's conference, we had an Order List and a single opinion.  Good time for Kimberly Robinson, Supreme Court reporter, to take a family vacation.   

A photo she tweeted.  The Order List was short and dull.  The opinion is mainly notable as Kavanaugh's first signed opinion (it is somewhat likely he wrote at least one per curiam) of the term.  

The opinion regards a technical requirement necessary to bring a Fourth Amendment claim. [ETA Mark Stern suggests it is "great," but I think this is one of those cases where he is a bit too enthusiastic.  Maybe, I'm wrong, but SCOTUSBlog and the legal tweets I saw don't seem overly impressed by it.  It seems to be a limited, if worthwhile, win.] 

Alito for Thomas/Gorsuch dissented, starting with a pretentious Homer reference.  I thought it was atypical, but again adding this bit, I later saw  reference to other related stuff by Alito.  Guess he has his moments. 

The Senate Judiciary Committee voted on Ketanji Brown-Jackson and a few other lower court judges.  Sen. "Drama Queen" Graham let the cat out of the bag and suggested the Republicans wouldn't have had a hearing for her if they were in power.  He claimed that it would have accepted Michelle Childs, the option from South Carolina who is somewhat less liberal.  

Yeah.  Anyway, this just shows that the Republicans are simply not legitimate actors here, and we can bluntly say this even as people like Booker can sweet talk Sasse and Tillis for not being as much total assholes as the rest.  The final vote for KBJ was 11-11 though it wasn't equally split in the Senate Judiciary Committee for every lower court judge voted on.

KBJ's final confirmation vote should be later this month.

A "discharge" motion voted upon early in the evening. Murkowski and Romney -- who opposed her for court of appeals, a reverse Lindsey Graham -- announced their support and joined Collins and the Dems to bring her to the floor, 53-47. 

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Meanwhile, I read the graphic (very good) version of Fault Lines in the Constitution.  My only real complaint is that -- even if you want to focus (like Sandford Levinson does) on the "structure" provisions of the Constitution, why not have a chapter on the Supreme Court? It was touched upon, but really deserved an independent chapter.

There is also a non-graphic novel version.  Graphic novels provide a useful and creative resource to educate and entertain.  

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ETA: I was checking the Supreme Court website on Wednesday morning, not expecting anything, and saw an opinion by Kagan dated 4/6.  Wait.  Yeah, right, it's on the "opinions related to orders" page, one of those cases where that is the only place you find out about things, nothing on the main "Orders Page."  It is even a little extra level of "inside baseball."

An opinion on that page means it is not an opinion of the court. It often is one of those opinions/statements justices added to the Order List or a few times some other time (such as Sotomayor flagging a problem, but not quite dissent time, in an execution case).  These things sometimes are interesting remarks of individual justices' feelings.

It also means there was some order and someone concurred or dissented separately.  The order itself is often (like today) a bald statement of what they decided (here granting a stay, continuing a Trump regulation of the Clean Water Act, which removed some power from states and tribes to hold up development programs.  Basically, federalism lost in favor of special interests.  The regulation also interfered with 50 years of policy.

This resulted in litigation and one side wanted a lower court opinion to be stayed as it went on, which in theory is a difficulty matter (consider SB8/Texas abortion  litigation).  More blatantly than usual, five members of SCOTUS dropped an order granting it this morning.  They could have did this on Monday, when people were paying attention.  For some reason, they did it now.  

No explanation.  Not signed.  Kagan called them out, noting by now that is obvious that the so-called "emergency" docket isn't for emergencies. That docket is also called the "shadow" docket, but conservatives on the Court don't like that term, since (though a conservative leaning law professor, Will Baude, first dropped it years back) it implies they are hiding something. But, Chief Justice Roberts joined the liberals this time.  

Kagan (and Breyer) knows how to broaden appeals. They leave the barnburners to Sotomayor.  The order is thus a rather gratuitous 5-4 opinion, suggesting (to quote a favored meme of Strict Scrutiny Podcast) the conservatives fail the so-called "marshmallow test."  That is the idea that people want instant gratification, even if waiting a bit will get them more marshmallows.  Roberts is for the "long game." 

Amusingly -- in a fashion -- Amy Coney Barrett just gave a speech (of course -- neither side do this, and it's wrong -- a transcript or video is not readily available, though we get a few quotes from Politico articles and such) at the (sure) Ronald Reagan Presidential Library Foundation (come on, how on brand can you be?) fighting the idea they are just politicians in robes.  Just "read the opinion," she suggested.  Or, the lack of one.

In a rather timely bit of scheduling, Sen. Sheldon "dark money controlling judiciary nominations" Whitehouse and a few others had a press conference shortly before noon to promote their ethics bill. Whitehouse noted the importance for disclosure to know the powers that be involved. The opinion was so new that it was not referenced, though his Twitter account cited it later in the day.

This order just pissed me off (I was annoyed for another reason anyway) and it is hard to move on (at least at the moment) when they keep on hitting you with things (this again is the case for me personally on another matter that I won't go into).  The Barrett Court cannot just screw over us with the law.  They have to do it in a particularly shitty way.