SCOTUS News: We had more opinions on Wednesday, but also continue to have other news. First, there is the continuing story of Ginni Thomas' efforts to overturn the 2020 elections, now with more John Eastman. As usual, this continuing onslaught has a general feeling of "this is bad" without fully being clear how much is there, including how much Clarence Thomas (Eastman was his clerk) is involved. For instance:
The emails show that Thomas’s efforts to overturn the election were more extensive than previously known, two of the people said. The three declined to provide details and spoke on the condition of anonymity to discuss sensitive matters.
The talk has been that there was some pushback on the 1/6 Select Committee to do much about Ginni Thomas, seen as something of a sideshow and perhaps not supported by the two Republicans. The article notes that the committee is deciding what to do though such leaks very well might be a sign of some sort. What exactly (pressure? dissenting voices? a means to send info without doing formally?) it means is unclear.
The person who went to Kavanaugh's house apparently well prepared to do mischief (apparently seeing the house defended, he said "nah" ... if it was "suicide by cop," he changed his mind, surrendering peacefully) was indicted for attempted murder. As the article noted:
Montgomery County police found a black tactical chest rig, a Glock 17 pistol with two magazines, ammunition, a knife, pepper spray, zip ties and duct tape inside his backpack when they arrested him.
Basically, he planned and otherwise did too much to get off the hook at the last minute. Meanwhile, the House passed the Senate bill to expand security coverage to the family members of justices. After a quick passage in the Senate (without dissent), it was held up in the House because Democrats wanted coverage for clerks and such as well.
After all, as Rep. Lieu noted, one was targeted by name as the assumed leaker of the Dobbs opinion. A few Democrats (including AOC) did not vote for the Senate bill, but most did. As a summary notes:
This bill grants the Marshal of the Supreme Court and the Supreme Court Police the authority to protect any member of the immediate family of the Chief Justice, any Associate Justice, or any officer of the Supreme Court if the Marshal determines that such protection is necessary.
There has been complaints that the Senate did this so quickly while gun legislation or something was not passed. Sure. Okay. Fine. But, once your rightful indignation passes, this sort of legislation, of top members of the third branch of government, after people (including Sotomayor) were threatened or there was a serious threat there, is sound legislation.
A few did add that the legislation does not address the necessary coverage needed to lower federal courts, including after a family member of one was murdered. Again, that is valid, and if that is why people from her state specifically didn't vote for it, kudos. It simply is easier to pass a more restricted bill, especially given current events.
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Opinions: There was also a second opinion day with a slew (six) cases disposed of on Wednesday. We are down to 18 opinions left, including probably around six really notable ones (abortion, two religion cases, Remain in Mexico, an EPA case, and let's say at least one more). Meanwhile, jumping ahead, we already have the first arguments of the October 2022 term. Fun times.
One law professor on Twitter basically listed the cases as "not ones you care about" and they aren't the hot button issues. Now, those following a law professor on Twitter are more likely to care about some less exciting Supreme Court opinions. Also, some of the opinions at least were notable in various ways, particularly doctrinal.
Stolen Seat Guy (Gorsuch) played a notable role in many of these, including separating himself from other conservatives repeatedly. The first case, for instance, was Barrett v. Gorsuch (Breyer and Sotomayor joining him up to a point) involving a VA regulation. One might be sympathetic with the petitioner, but the case turned on clear error. If you do not give discretion to the agency here, you might not like the result in other cases.
[This SCOTUSBlog summary is interesting in discussing the interpretative approach taken determined the results here, including "canons" involved, and so on. And, such application does not seem consistent.]
This is one of those cases where it's best for me to simply understand what happened as compared to assuming I can figure who is correct. As to agency discretion, another notable if less flashy case involved a complicated health care matter. The recap suggests the unanimous Kavanaugh opinion might be a sign "Chevron deference" is being buried by just ignoring it.
Gorsuch's clear sympathy for Native Americans (though on Twitter, a law professor that specialized in Native American law suggested he was wrong in the double jeopardy case, showing perhaps his competing views clashed there) also showed up in a 5-4 opinion involving the discretion given to Indian gaming. Roberts dissented along with the older conservatives and Kavanaugh, leaving Breyer one of the few chances to assign.
As noted by the linked commentary, also flagged on legal Twitter, the voting array reflects another big 5-4 Native American dispute, which has a pending follow-up in the post-RBG era. Barrett joined this opinion and inside baseball suggests it sends a message she will vote with Gorsuch in the upcoming case. We shall see there, predictions somewhat iffy.
A general theme in this collection of cases was "we are just doing our job, statutory interpretation," though the end result was disputed. This as Prof. Victoria Nourse noted on Twitter included when the same interpretation methods were used. She also flagged Gorsuch's usage of purpose. Text alone will not get you where you want to go, at the very least, if there is any major dispute on the meanings.
Sotomayor wrote an unanimous opinion clarifying the rules regarding an important international agreement involving at risk children.
Alito, not writing one of the religion in school opinions quite yet (I thought the prayer case might drop), wrote an opinion "preempting" to some degree (if not as badly as some feared) a California law involving arbitration. The result was 8-1 (Thomas didn't like the rule applied and doesn't care much about precedent) though Barrett, Kavanaugh, and (if not as much) Roberts would have decided the result on more limited grounds.
[SCOTUSBlog's summary notes the section all three don't join is basically gratuitous, but it seems like it was added to make the liberals happy. The interesting vote there is Gorsuch, who concurred without comment. The first part cites some "limits" to the California law, but Roberts did not find this problematic, unlike the other two who concurred.]
One theme in this set of cases is that Roberts in various ways did not go along. He wrote a dissent, only concurred in part, and for the conservatives (if not the two latest) wrote a rare concurrence to a DIG. The Court as a whole did not explain why the case was "improvidentially granted," a "because we say so" result that is normal, if wrong, in such cases.
During oral argument, it did seem the justices (etc.) was not really gung ho about supporting the route taken to challenge the "public charge" rule now that the Administration no longer enforced it. But, some didn't like the way the Biden Administration went about it, feeling the right procedure was not followed. Roberts sent a message with his concurrence, but again, not for the Court.
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Conference: Thursday a day for conference. Monday is a federal holiday, Juneteenth, so orders will drop on Tuesday. There are 18 opinions, including some big ones, so I think there will be four more opinion days. Two are scheduled for Tuesday and Thursday. I don't think we will have six a day since we had basically five a day (with one non-opinion) with a bunch of B sides.
One thing noted on Twitter was some opposition to the policy of dropping opinions in ten minute increments, which makes more sense when they read the opinions from the bench. I am okay with sticking with the old way, even though it's just automatic release, in part since it gives me a chance to quickly look at the opinion before the next is dropped.
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Sotomayor At ACS: Liz Cheney during one of the public sessions of the 1/6 Select Committee labeled the Federalist Society a conservative lawyer organization, which probably would annoy them -- we are libertarian too! we are a non-ideological debating society! We just happen to be appointed by Republican presidents as judges and stuff.
The American Constitution Society does a lot of generalizing, but on their "About Us" page eventually notes it "nurtures the next generation of progressive lawyers, judges, policy experts, legislators, and academics." Like the Federalist Society, they have invited ideologically dissenting guests to various panels though recent videos I have seen are basically one-sided. Eric Segall seems to be a favorite friendly debating partner for FS, which at some point to me normalizes them. To the degree they did not do enough to push against Trump, that to me is wrong.
Fix the Court wants liberal and conservative justices to go to their opposite numbers (said so on Twitter). I think that's a great idea though would not put (like the tweet) the responsibility fully on their side. It is up to the groups to invite them. I do think the justices can somehow send a message they would be open.
Still, it is not apparent they actually refused to do so. I suppose Breyer or Kagan would be open at least. And, yes, it does look dubious since these are not just debating societies. They are ideological groups, and federal judges should try to remain somewhat neutral appearance-wise.
Anyway, it is not surprising that Justice Sotomayor was a special guest at their annual convention. Federal judges have served such a role in the past. Sotomayor was in part chosen since she is a good public advocate and she strongly believes it is important for her to do so to inform the public. She has signed on, especially now that Sandra Day O'Connor is no longer able, to the civics campaign too.
She also generally, though you might not know it from some of her dissents (her majority opinions, like Thomas, can be dry),* puts a positive face. She seems from my vantage point a general positive person. She loves, for instance, to go into the audience like she's some talk show host. And, she repeatedly hugs people.
The report of her remarks (interviewed by a former law clerk) contains various comments where she puts a positive spin on things, including praising Justice Thomas (this is not surprising with his clear rapport with Breyer and reports court personnel love his personal touch). We already had that mask controversy where a statement was released and she was shocked there was any suggestion Gorsuch (the one person on the bench not wearing a mask, even though he sits next to her, a diabetic) was somehow at fault. It was just over the top in my view. He was an asshole.
Anyway, she references the "institutional structure" and notes:
“We have to have continuing faith in the court system and our system of government,” she said, adding that she hoped “to regain the public’s confidence that we — as a court, as an institution — have not lost our way.”
Sotomayor isn't going to discuss ongoing disputes, but like I said when talking about the latest Breyer book, there is a problem there. It is appropriate that a sitting federal judge does not opine completely on ongoing political matters. So, these avenues require them to balance on a tightrope of sorts, honing to a fine line at times. Including somewhat vague and general bromides. Some, like Alito et. al., do bitch some.
[I know "bitch" is a dubious gender laden word here. A word like "whine" probably works just as well.]
I appreciate that Sotomayor by her remarks does not just handwave the current reduction of respect of the courts. I also realize she is limited in what she can and will say. (Ginsburg annoyed some by laying it on thick about Kavanaugh being a fine person. Again, it's a fine line.)
But, the lack of faith is a result of various deep problems with the current Supreme Court. And, the public voices and actions she vaguely remarks upon should and in my view must put forth serious changes for the confidence to be regained and/or properly held. Finally, no matter how nice Thomas is (and on some level seems true), he is part of the problem here, including blatantly crossing ethical lines that warrant him resigning.
I think Sotomayor is a great asset, but at some point, once you are a member of the Supreme Court, you are institutionally self-interested. Some this is her overall sense of the world, some of it is that she is a justice of the Supreme Court. I understand but still it's a bit hard to take sometimes. The happy face (with enough honesty mixed in to get my respect too) these days is not really the vibe I have.
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* She is open about it in public remarks, including here:
“There are days I get discouraged,” she said. “There are moments where I am deeply, deeply disappointed. And yes, there have been moments when I’ve stopped and said, ‘Is this worth it anymore?’ And every time when I do that, I lick my wounds for a while, sometimes I cry, and then I say, ‘OK, let’s fight.’”
And, though I'm wary about the personal nature of judicial opinions sometimes, I am glad she is doing it. I do think -- and there was signs of this way back when too -- opinions in our country are too personal. But, there is a place for certain strong arguments. For instance, she is the last strong supporter of separation of church and state left on the Court.
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Addendum: A lot of stuff, and not just opinions. After a bit of time, we have a few edits of opinions. One was a single typo; the other also mild edits (e.g., basically "it appears" to "in the view of the parties, it appears."). Also, we have more urls on page where permanent copies of the pages cited are kept.
And, an interesting old critique of Marbury v. Madison.
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