The Honorable Ketanji Brown Jackson will be sworn in as the 104th Associate Justice of the Supreme Court on Thursday, June 30, at noon at the Supreme Court of the United States. Chief Justice John G. Roberts, Jr., will administer the Constitutional Oath and Associate Justice Stephen G. Breyer will administer the Judicial Oath in a ceremony in the West Conference Room before a small gathering of Judge Jackson's family.
Yup. A bit earlier than expected (Breyer in his retirement letter said he intended to retire when summer recess began, and even as opinions dropped this morning, people figured the soonest that would be was Friday. And, like part of the 100th Anniversary ceremony in honor of Justice John Paul Stevens, the "ceremony will be streamed live on the homepage of the Court's website."
The details of the oaths/affirmations are helpfully summarized in this thread. Suffice to say, the Constitution (Art. VI) provides the requirement for one [but not just to judges; only POTUS gets a specific text though] while the Judiciary Act of 1789 and so forth guides the second (including a form of equal justice that many assume is a given). Nice bit involving the Breyer and Roberts.
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And, Breyer's last (we can say "probably," but come on) opinion of the Court was a fitting one. Using "Constitution’s text, its history, and this Court’s precedents," he only needed sixteen pages (no footnotes as usual) to allow a veteran to sue state-agency employer for violating his federal rights. Given his druthers, as seen by his concurrence in a case Kagan cites, Breyer clearly would go further to limit sovereign immunity in this field. But, he got a majority, including Roberts and Kavanaugh.
(As noted by the article, former clerks of Kennedy disagreed on the reach of a key precedent in this area.)
The majority opinion basically notes there are certain federal powers under the Constitution that are singularly federal, including the war power, and state sovereign immunity rules do not apply there. I think that applies to the Commerce Clause, but he's right that there are more provisions (including the "this would have interesting implications as further matters of discussion" cites to the militia and Guarantee Clause) regarding war power.
The dissent shows that Barrett (and not for the first time) is a more consistent state rights person than Kavanaugh and Roberts. Kagan's concurrence is interesting. One thing I caught on second reading was that she didn't just cite an opinion of the Court, but noted "she" wrote it. From my reading, the usual practice is not to personalize things that way.
Kagan probably is at heart not a big fan of the sovereign immunity precedents that find some implicit "plan of the convention" or whatever limit on congressional power to pass legislation (Congress made up of representatives of states) to allow lawsuits against states to help enforce Article I, sec. 8 powers. But, she wrote an opinion doing do since precedent seemed to compel it.
Kagan notes in her concurrence today that a case the next term "proved her wrong" using a "new test." THERE, Kagan actually dissented (joining Barrett's dissent). She joined without comment, noting today she did it since precedent (which is sorta her thing) compelled it. Kagan today, the fifth vote, applies that precedent (while noting the whole edifice is far from clear) to join the majority. So, she's sorta consistent, huh?
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While the majority described a gradual assumption of state authority in Indian country aided by historical trends and ratified by a series of Supreme Court precedents, the dissent focused on Congress, which never explicitly authorized state jurisdiction over these types of defendants. Both majority and dissent accused the other of overstepping the role of the judiciary, but the dissent’s focus gave primacy to the role of Congress over the majority’s reliance on historical changes acknowledged and ratified by the judiciary.
A basic theme in recent conservative issue opinions (note here we see Maine might have a way to limit one such opinion as to funding of religious schools that violate equality rules*) is the importance of "history and tradition." But, what exactly does that even mean, especially when focusing on groups that have been target to discrimination?
There has been some crystal ball-ing regarding today's major Native American ruling arising from another 5-4 case that now goes another way with a new member on the Court. One flag was Gorsuch's assignment in the coach prayer case, which (following the rules of even division of cases) suggested he would not get this one. And, if Gorsuch didn't get a majority in an Native American case, well it isn't a good sign for Native Americans.
(This is a general rule. The double jeopardy case very well might be a good one for tribes, especially since the result was supported by the tribe in question. These questions are not always crystal clear as if there is ONE answer to these questions.)
The result here went against the tribes and Gorsuch was pissed off in dissent. I decided to admit my limited knowledge here and listen to others, especially experts on Native American law, including Native American law professors. One wrote the SCOTUSBlog opinion review. Note the "what history," "what tradition" aspect of the case.
Some think Gorsuch here is on the money. I'm not sure exactly. I do think the appropriate thing to do is for Congress to clarify things. And, this is not a crystal clear partisan here at all. There is every possibility Republicans from states with sizable Native American populations will be willing to work with Democrats to settle this question.
And, it is far from clear there is some "one size, fits all" solution. There are millions of Native Americans in this country, parts of a slew of tribes. A few tribes are quite large. Many are tiny. If some tribe has a few hundred people, the rules very well might be somewhat different than those with one hundred thousand.
This is exactly the sort of case where some ability of the Supreme Court to formally send a case to Congress for review and a fix would be ideal.
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Golan v. Saada was the recent case concerning the rules involving international child custody disputes. An order today accepted a request to issue the judgment immediately, avoiding more delays.
In other inside baseball news, Breyer's announcement suggests the expected "clean-up order list" will be somehow accelerated. The idea here is that Breyer will be officially retired from "active service" at noon tomorrow, which means they will be all done by then. I and others more knowledgeable about legal stuff assumed a Friday clean-up -- the usual practice being one such order to clean up everything a day after (at least) the final opinion day.
Since even "Re-List" Guy isn't really sure what exactly is going on, I guess the best thing to do there is just wait and see what happens the next day or two. It has been a busy June.
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* Surely, this might result in more litigation over religious liberty claims. Still, as I noted when this case went down, the state has other quivers in its bow to try to limit the reach to protect its own anti-discrimination law concerns. This issue is not fully overlapping with the separation of church and state concerns.
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