Supreme Court Watch

Death Penalty: Kosoul Chanthakoummane, 41, was executed last night by Texas. It was the second execution of Texas and ninth overall (two each for four states; one single). He was convicted of a brutal murder while on parole for another violent crime. The murder seems to be a robbery/homicide (calling Brenda Lee Johnson) with minimal returns (Rolex and a ring) for such a death.

No final SCOTUS appeals, after one failed last year. He argued innocence and dubious scientific evidence, but this seems more of a basic case of "why execution?" Violent crime. Two time offender. But, not "worse of the worst" in my book. Oklahoma has another execution next week. 

Supreme Court Commission: There was an article about the disappointment in the lack of a response to the Presidential Commission on the Supreme Court.  This might just reaffirm the cynicism of people that it meant anything though it was something of a self-fulfilling prophecy since while it was going on various liberal critics sneered at the commission.  This was so even though many of them greatly respected multiple people on the commission.  

There is some public concern in Congress regarding the Supreme Court, including regarding ethics, though other matters have received more attention.  So, for instance, the FBI director was recently asked about the Kavanaugh nomination and the FBI background check process there.  And, some attention to term limits, though I continue to argue they only go so far, and constitutionally are an uphill battle without an amendment. 

Justice on The Brink: Linda Greenhouse's book focuses on Amy Coney Barrett's first term on the bench.  The book starts with a sort of prologue, the (late) end of the term before, including an (overly optimistic) sounding notice that Ginsburg will continue on, still healthy and able enough.  She would die late September, perhaps as shortly as one fucking month too early to make it seriously possible for the seat to go to a Biden nominee.  

[Such is unknowable "what ifs" and some -- the same people who thought no one would be confirmed if Hillary Clinton won as long as Republicans controlled the Senate -- figured we would get a Trump nominee if she died January 19th.  I question if it would have went down the same way if she died a month later.  It would have taken a bit of time to confirm her using at least half-way credible means.  This would have ran past the election.]

The 2020 (October 2020 to June 2021 basically) term showed some signs (see the changing COVID rulings) that there was a new Court.  But, it was something of a "wait and see' with the 2021 term having the real great changes, from guns, abortion, and Breyer retiring.

Fulton v. Philadelphia  is a prime example of this, a Roberts b.s. somewhat faux minimalist special. That was the case where a city denying the Catholic Church from being involved in foster care unless they don't discriminate (the horror) did not result in Oregon v. Smith being overturned. The majority claimed as applied the policy was discriminatory (since exemptions were allowed in some cases), but as noted by the book, this basically was bullshit.  The liberals went along to avoid a worse result.

The book as a whole is fine.  It is an example of an easy reading book, which for someone like myself who keeps tracks of these things do not really tell me much.  There is nothing really novel in the book to provide a reader some special insights on the internal actions of the term.  It's a fine summary as far as it goes, especially if you are new to this stuff.   But, for me, to be honest, it didn't really add much for me reading the thing.

Such books usually have some interesting tidbits. For instance, it has a good cite of an op-ed by a Catholic law professor and theologian defending Democrats from claims of religious bigotry for asking Barrett some questions about her religious faith.  She was nominated in significant part for her faith, supporters expected her faith to influence her judgment, and it is just plain hypocritical not to allow that to be addressed.  

This has shades of Sotomayor and empathy. Some do not want to honestly address that empathy -- not the same thing as mere sympathy to one side -- factors into judging.  In different ways, since Alito has his own form of conservative grievance empathy.  As noted by the op-ed:

Barrett has indicated that her faith-based moral views will not affect her judicial decision-making. That stance is puzzling. Law and morality are not easily separable, in either Catholic teaching or the U.S. legal system. While official Catholic teaching distinguishes between law and morality, it does not separate them. And many laws call upon judges to make moral judgments. At one extreme, the Eighth Amendment prohibits "cruel and unusual" punishments. At the other, the doctrine of promissory estoppel in private contract law requires the enforcement of some broken promises, limiting remedies "as justice requires." A judge's moral views — whether religiously infused or not — are relevant to his or her behavior on the bench.

The barrier to religious tests does not mean religion can not be examine at all. In practice, it might be the case, though yet again, it will be in a selective way.  So, as Greenhouse notes, there is a reason why there are so many more Catholics on the Court (abortion) now.  A "religious test" of sorts were used.  Again from the op-ed:

American Catholics can’t say, on the one hand, that our faith has a public dimension — important implications for our public policy and law — and cry foul, on the other, when fellow citizens challenge us about those implications. We can’t have it both ways. That’s to be neither a conscientious Catholic nor a public-spirited American.

Anyway, the book is a useful summary of a snapshot in Supreme Court history, even if it didn't add much to my own knowledge.  One interesting tidbit is that she briefly twice references the sexual abuse charges against Kavanaugh, neither time even mentioning the name of the accuser.  This sort of thing tosses into the memory hole some more what happened there. She spoke about him strongly refuting the charges without noting HOW he did so.  Did any of that have any influence to his service on the bench?

There was some early reporting that colleagues thought Gorsuch was an asshole (this is noted in the book), but I have seen nothing about that.  For instance, a few were pissed when Ginsburg praised the Kavanaugh as a colleague, which disgusted them given his background.  This book seems to if anything add to this papering over the um rough edges.

Greenhouse also noted Barrett's strong academic career. I saw someone call her not very smart. There is nothing really ideologically neutral to that claim.  I also noted in the past that I was not really impressed by an argument in a Slate piece that her opinions on the Court so far has been substandard in any way.  It is true that her experience is not too respectable other than as a prime ideological victory as a justice.  

One final thing that could have been useful to add. Wikipedia tells me that John Roberts was asked some (apparently without people having the vapors) about his own Catholic beliefs.  

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I reposted this entry to provide this review.  There will be a summer order list on Monday.  There were no new orders (as of now) posted this week.  I am pretty sure this will be the final version of this post.  With the usual "who knows" proviso.  

ETA: This is why, even during the summer, it just pays to wait until the end of Friday to post these Supreme Court round-ups. 

There was a confusing order regarding an election dispute in Georgia, which does not appear to be that notable.  The actual order on the orders page is annoyingly not justified (so messy) format-wise.  More notable, I would think there was a more clear way to phrase things. But, what else is new with these shadow docket things?  Again, we are left to others such as Rick Hasen (first link) and Amy Howe to provide further clarity.