SCOTUS Watch: Day 1 (of 2?)

There were basically six cases decided today, which is around the rate necessary to dispose 29 cases in three weeks.

Death Penalty: The first was a death penalty/competent counsel case that returned after being sent back in 2020 (per curiam, High Federalists dissenting, pre-Barrett). Sotomayor for the liberals had a long dissent from cert. denial.  The case turned on the effort put on for mitigation, a major part of capital cases often being the penalty phase.  In effect, yes, there are lots of homicide convictions, but only a very few so bad to warrant capital punishment.  The arbitrariness here is to me one of the biggest problems with capital punishment as a whole. 

The Court, per curiam, sent the case back in 2020, clearly sending a message it was troublesome, but not firmly concluding the state court was simply wrong.  Coming back, there was again an uphill battle to meet the rules for summary reversal, though why the dissent did not meet it is uncleart.  A case where the state court already was red flagged and a strong dissent is present is a lousy case for a summary denial. 

[Here's a discussion.  As of now, it wrongly flag's "Kennedy" being replaced.  No.  He wasn't around any more in 2020.]

The rest of the order list was no drama. 

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As we waited for the start of the 1/6 Committee hearing, five opinions in "not the top ones" cases dropped in ten minute intervals.  This interval made more sense when they showed up and read summaries from the bench and the press was there.  The committee was due to start at 10 A.M., but was delayed about 45 min., probably because a key witness' wife went into labor, so they had to rejigger some. 

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Native Americans And Double Jeopardy: First, a somewhat quirky double jeopardy case (the Washington Post summary calls the background "pretty bizarre") was handed down by Barrett upholding the prosecution and Gorsuch with a strong dissent, which only partially (in particular, some institutional complaints by an often critic -- at least when certain things are involved -- of the federal administrative state were his alone) joined by Sotomayor and Kagan.

Gorsuch if you remember dissented in the dual sovereigns case, upholding the rule that you can prosecute the same defendant for the same acts if different sovereigns were involved.  (The other dissenter was Ginsburg.)  The rule applies to Native American tribes too though the "sovereignty" there is much more limited than in the case for states.  This was something he raised during oral argument.  

[I was sympathetic to the idea that the dual sovereignty rule was artificial. If you did one act and were prosecuted twice, it seemed like double jeopardy.  But, that was never the rule.  Two "offenses," which is the text, are understood to be involved.  You are acting against two different governments.  And, there are federalism concerns. Maybe so. Anyway, the precedent is granted here though Gorsuch clearly still doesn't like it.]

When this case was argued, I got a sense it was an uphill battle for the defendant, even if it might have raised tricky issues that might be harder  for the government later on.  I saw this from the argument, SCOTUSBlog coverage, and maybe the Strict Scrutiny Podcast coverage.  For instance, it is not like the person was first found not guilt and a second bite of the apple was involved. 

Co-host Leah Litman, usually a strong defendants rights person, leaned toward the majority opinion today on Twitter at first blush.  But, there were some defendant rights voices who thought Gorsuch was correct.  The WP article flags that Gorsuch is the Native American rights guy, but in this case (as Leah Litman flagged) the tribe supported the result.  

The court tries crimes established by the department through regulation — not crimes enacted by Congress. Its members are appointed and can be fired by the secretary of the interior. It’s referred to as a “CFR court” because it is a creature of the Code of Federal Regulations, where all federal regulations are recorded. CFR courts have jurisdiction in places where tribal sovereigns haven’t established their own courts.

(WP summary.)  The court here prosecuted a sex crime and a 140 day sentence was handed down (tribes have limited power to hand down sentences).  Then, the same act was tried in federal court, and a 30 year (!) sentence was handed down.  The length of the sentence is not the issue here though even Roberts during the oral argument wondered what the point of the first trial was.  The government noted for one thing it was quicker as well as given the tribe a chance to make its statement. 

The opinion summarized it the crime this way:

A violation of the tribal code lies at the heart of this case.  Merle Denezpi and V. Y., both members of the Navajo Nation, traveled to Towaoc, Colorado, a town within the Ute Mountain Ute Reservation. While the two were alone at a house belonging to Denezpi’s friend, Denezpi barricaded the door, threatened V. Y., and forced her to have sex with him. After Denezpi fell asleep, V. Y. escaped from the house and reported Denezpi to tribal authorities.

Not trivial, but 30 years?  You often would not get that for murder.  Anyway, the special court (logical for smaller tribes especially) here made the case tricky, looking different than a regular Native American dual sovereignty case (granted as allowed by long precedent).  The court seems basically too much like another form of the federal government.

The majority -- in part arguing that Gorsuch was making argument not made by the defendant -- argued the point here is that the "offense" here was not the same.  The tribe (no matter the nature of the prosecution) code was violated AND federal law was violated.  And, again, it is unclear where you should go if you support Native American sovereignty rights here.  

Gorsuch's vote is not surprising given his past votes, Sotomayor and to a degree Kagan lean liberal, so what about Breyer?  Breyer is more willing to support the prosecution side, especially when -- like here -- there are logical reasons supporting various interests (including precedent apparently) do so.  Me?  I understand the concern of the dissent, but on these facts, well, I admit I am not sure.  The sentence does seem too long.

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Also Rans: Barrett then dealt with a unanimous technical issue and we ended with Thomas doing so (minus Gorsuch who would have held it was improvidentially granted; Sotomayor added a few words) regarding a civil procedure rule case.  The biggest red flag there apparently is that Gorsuch split "anyway" as "an-yway" in his opinion.  The last case also ruined a line of cases with "z" in their names. 

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Non-Citizen Hearings: Sotomayor took a case involving a claim for bond hearings of noncitizens detained and rejected it in a limited opinion.  Breyer (who has long been concerned about this general issue) dissented in part (not really wanting to go as far as she went) and Thomas concurred alone to say he rather they restrict the very right to bring such cases. I figure this was a sort of "reduce the harm" sort of opinion on her part while this is one of the "can't helps" Breyer talks about where he can't go along given his personal position.

The bigger case was handed down by Alito for the conservatives, which blocked a certain class of "aliens" (as he framed it) from bring a claim in federal court.  Sotomayor for the liberals dissented on the ground. Breyer joined only part of her dissent.  Sotomayor/Kagan (but not Breyer perhaps) accepted the government was right on the merits but would have at least let the claim be brought in the first place.  

(Leah Litman, of Strict Scrutiny Podcast who regularly live tweets opinion announcements and the like, summarizes that the opinion holds that  "federal statutes don't allow courts to enter class-wide injunctions against the enforcement of certain immigration law provisions.")  

There was a suggestion the Alito opinion might foreshadow a major limit on jurisdiction involving immigration claims as a whole.  This might benefit President Biden in the "Remain In Mexico" case.  Oh, note that Gorsuch was okay with federal power here. 

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24 opinions left and another opinion day on Wednesday.  At this rate, you can imagine five more opinion days with two days each (with a final clean-up order day) to finish up before the 4th of July.  The issue is that you have some major cases left and it will be a bit different with one of the biggies.