SCOTUS: Breyer Retired

 

With a full heart, I accept the solemn responsibility of supporting and defending the Constitution of the United States and administering justice without fear or favor, so help me God. I am truly grateful to be part of the promise of our great Nation … In the wake of his exemplary service, with the support of my family and friends, and ever mindful of the duty to promote the Rule of Law, I am well-positioned to serve the American people.

There was a livestream link (couldn't find it at first at noon, but found it on Twitter while it aired on MSNBC) on the website of the swearing in of Justice Ketanji Brown Jackson at noon. As bad stuff happening, "frightening" stuff in the words of Kagan's dissent today, the first black woman justice is on the Court. That is a good day.  Have a nice retirement, Stephen.

[Links the video and other material now clearly accessible on the website.]

The work of the Court is done (there will be some summer orders and then a "long conference" in September to address outstanding stuff), rushed along with a 10:45 AM final order list.  The big news is a dangerous "independent state legislature" case granted.  Sotomayor (sometimes with company) dissented in various criminal justice/qualified immunity cases too.  The High Federalists again dissented in the vaccine exemption case. 

[ETA: SCOTUSBlog finally -- after not doing so for years even after I pointed it out -- began to put summer order days on their calendar.  As of now on 7/5, SCOTUS has yet to do so.  It does have scheduled orders for October!]

For whatever reason, they allotted circuits to the justices (judges) today, which means nothing for KBJ.  There is a rule in place when a  new assignment is not done yet when there is a vacancy.  But, instead, well, I guess they will take one of the circuits from a justice with multiple ones at some point.  

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The final opinion was a limited win for the Biden Administration regarding the change in the "Remain in Mexico" policy.  Roberts for the Court, Kavanaugh going along, and the other conservatives dissenting (Barrett on procedure, the rest on the merits).  

So, the  big news is really the EPA case, which makes clear that there is some sort of "major questions doctrine" where when the courts determine some agency action is "major," they will look more closely and second guess.  Here, they really should not have looked at all since the policy was not active yet.  

[ETA: Some frames here will basically say that the Supreme Court makes it impossible to regulate at all in this area.  The actual result is somewhat specifically narrow but is basically an open threat, one that in various cases will be applied by extended in time -- see the SB8 litigation that ran out the clock -- lower court rulings. The firm recognition, more hazy in past cases, of a "major questions = doubt principle" will give the courts a lot more power, and that is the bottom line here.]

But, activist/YOLO Court and all.  Kagan with a  "it's a Calvinball Court" dissent for the liberals, ending with how "frightening" it is that the Court is making environmental policy.  We shouldn't have a frightening Supreme Court.  Major change is necessary though there are no easy answers on how.  Some want Kagan and Sotomayor to retire. At this point, I understand the sentiment.  Not that it will happen.

Good luck, Justice Ketanji Brown Jackson.