Supreme Court Monday

Orders: There were three separate orders today. First, there was the Order List, which including granting three cases for full argument. A Spending Clause case might be notable (going by Legal Twitter), but overall, they aren't hot button cases. A final attempt to stop a Missouri execution was rejected without comment. And, additional briefing is requested for a Biden border related case.

Death Penalty:  One of the four executions scheduled at the end of April was not carried out because of a problem with the lethal injection protocol. A call was made to have a moratorium to investigate.  And, Tennessee's governor did pause all 2022 executions to do so.  Add this to the multiple problems with lethal injections over the last few years. 

The Supreme Court order involves Carman Deck, whose 1996 execution for murdering a couple has been pushed back by multiple procedural problems.  The Supreme Court itself over 15 years ago  overturned his second death penalty in May 2005 because he was shackled in front of the sentencing jury.  This is one of the cases where the extended delay (over 20 years now) is at least in significant part is the fault of the state.

Will update what happens tomorrow, but it is somewhat appreciated that the Supreme Court dealt with this the day before, instead of dragging things out until late the day of the execution.  As usual, I do wish the justices or at least one would provide a brief comment before signing off on the government taking someone's life away.

[executed]

Boston Flag Case: Boston allows many groups to put up flags on a flagpole outside City Hall Plaza.  But, Harold Shurtleff is the director and co-founder of Camp Constitution, a non-profit group that promotes Christian nationalism did not get a chance.  First Amendment problem?

I think this discussion is correct in saying that it is not a violation.  OTOH, as this liberal learning sort notes, "under existing precedents," the city was not going to win.  Justice Breyer wrote the main opinion, noting that the city was not totally in the wrong.  Using one of his balancing tests:

We conclude that, on balance, Boston did not make the raising and flying of private groups’ flags a form of government speech. That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint “abridg[ed]” their “freedom of speech.”

If I was on the Court (ha ha), I probably would go along, given this is a minor case and there is a path to dispose of it without much trouble.  Breyer notes that a locality could spend more effort to make it clear that "government speech" is involved then present here.  Personally, I think a city flagpole is close enough, and they should have discretion.  But, what do I know?

This basically continues a line of cases where certain governments cannot try harder than required (or deemed required) to enforce the Establishment Clause.  Kavanaugh, though concurring, bluntly said as much.  Gorsuch with Thomas rubbed it in some more.  Alito (with Thomas and Gorsuch) wanted to be more clear that Boston was wrong, without the balancing test approach used.  

We basically knew from the oral argument that at most Sotomayor would dissent, Kagan rather dubious, and Breyer not seeing much there either.  This is basically a flyspeck case in my view.  The lower court below held for Boston and the facts are close enough that it wasn't silly or anything. OTOH, if the city went the other way, it surely wouldn't be a problem, especially with the pending move to water down the endorsement rule anyways.  

(The Supreme Court had a file issue with this case, Breyer's opinion not loading properly.  As of nine o'clock this night, it has not been fixed.) 

[Today, Wednesday, I was able to open it in Microsoft Edge though Google Chrome -- which for me has certain things blocked -- still is problematic. Interesting appendixes.  Breyer has a picture of three flags flying and one might argue that it helps the argument that a flag would be deemed to be endorsed by the city.  Gorsuch posts two flags alone, for another purpose.]

Stevens Event: Justice John Paul Stevens would have turned 100 in 2020, but you know, COVID.  So, a memorial event was pushed back until today. A charming thing is that the a chunk of the event (with various notables, including one of his granddaughters) was live-streamed with video on the SCOTUS website.  That seems appropriate for someone who actually regularly posted his speeches on the forgotten speech page.  

I am not aware of any other live stream like this that was able to be accessed on the Supreme Court website itself as it occurred.  The appropriate thing would be to have much more video, at least for certain ceremonial type events such as opinion announcements.  Like many other courts, video livestreaming of oral arguments would be nice too.

ETA:  Right after I wrote this ... well, I saw the news of a leaked draft majority opinion in the abortion case.  This ... doesn't happen.  

This decision, we need hardly say, is entitled to just so much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room.

But, let's focus on the content.  The author of the opinion is Justice Alito. The people who were very sure of themselves had various options (Roberts and Barrett were top choices), but I have not seen a single suggestion that ALITO would write the opinion.  

A basic reason is that Alito would want to go further than Kavanaugh or Barrett would want to go.  They might want to end abortion rights, but Alito is full "substantive due process rights are for suckers" energy.  We had some talk of that, but that is an open ended hole of rights.  So much ... well, you know what?  

I'm still done with guessing.  This is far from over.  And, yes, I think the hypothesis that this is a conservative leak to keep the majority together and perhaps help "it isn't that bad" spin makes sense.  What will Roberts do?  It's allegedly your Court Johnny.  

... this is an interesting thread about previous leaks, but a whole draft opinion like this is still rather remarkable.  The Court released a statement with a comment from CJ Roberts; confirmed it is real, if not the final opinion.  He is upset and an investigation of the leaker is said to be in progress.