Supreme Court Watch: Order List

The Supreme Court dropped an order on Friday citing a few cases granted for full review. This led me to think that the Order List itself would be nothing too notable. And, the general orders are not.  Justice Thomas recused from a case involving President Biden, but it was some handwritten appeal, and it doesn't suggest a new recusal policy on his end.

The order list is over fifty pages. It is one of those that has various separate writings from individual justices (and Gorsuch) regarding cases they believe should be heard or warrant some more notice.  The five cases can basically be summarized in this matter:

• Gorsuch -- Veteran Benefits (Chevron)   [16 Pages]
• Sotomayor/Jackson -- Prosecutor misconduct   [15 Pages]
• Thomas -- Camp Lejeune [!]  Critical of application of immunity that denies certain military personnel relief [5 Pages]
• Gorsuch (Kavanaugh w/o opinion would grant cert) need for 12 member jury in states  [10 Pages]
• Jackson/Sotomayor -- Brady violation (exculpatory evidence/capital case)  [2 pages]

"Chevron deference" is the principle of letting administrative agencies have the discretion to do their thing, even if some judge or judges would second guess their application of the law.  If the application is blatantly wrong or suspect in some special way (discrimination, let's say), exceptions are made. 

Conservatives like Gorsuch find this too friendly to the administrative state.  Gorsuch at times finds some sympathetic case where deference seems to deny a good guy type plaintiff relief.  But, this is likely a rather arbitrary matter, and can given the leanings of various courts, net hurt such people just as easily.   Plus, overall, agencies help the pro-government regulation side, including to deal with pending problems. Again, net, even if some singular cases feel bad, Chevron deference is a good idea.

Camp Lejeune is the place you keep on seeing commercials and getting spam emails about regarding polluted water and such. The dissent there seems like one of Thomas' many idiosyncratic campaigns and maybe here his approach might be useful.  

Sotomayor regularly finds some criminal justice case that seems appalling. The problem is twofold -- (1) it sort of reeks of "error correction" (2) we have a conservative Supreme Court.  The Supreme Court is not really supposed to be there to skim over the thousands of cases and find cases where the lower court made a bad call though they do from time to time. The cases do flag possible miscarriages of justice that might be dealt in other ways as well as general ongoing problems for which this is but a blatant case.  Conservatives do this for their own causes too.

Justice Jackson's first opinion is a brief version of this general practice and Sotomayor signed on to hers as Jackson signed on to Sotomayor's longer opinion.  

The last dissent is an example of Gorsuch (see also his dissent in the case that continued to allow the dual sovereignty double jeopardy rule that popped up in an old episode of Quincy) a few times going the libertarian route.  It also is an example of my more conservative side coming out. Kagan, who dissented in the unanimous jury case, not supporting overturning another long in place precedent is not surprising. 

I think a 12 person jury as a rule is fine, but it is very unclear to me that it is compelled across the board to meet "jury" requirements as a constitutional matter.  I think the unanimous jury case probably should have been decided narrowly since the last two states (one already changed it rule but did not apply it to old cases) are tainted by racism.  It barely was mentioned, but Puerto Rico allowed non-unanimous juries at the time.  

These dissenting opinions provide some interesting reading since they cover a range of topics and give us another view on such questions.  Next up: an execution.