Supreme Court Watch

The Supreme Court Order List was not notable from what I can tell. There were also new court rules announced.  Also, not very interesting since even specialists do not seem to think the new rule changes are too significant.  

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There were various notable Supreme Court related happenings.  There were a few oral arguments, including in two big cases.  

One thing that was flagged there was the "hot bench," including "nonsense" and rudeness.  Gorsuch was particularly an asshole, including the guy who went the extra mile to convince liberals he was a good pick.  Alito also was flagged for some stupid and distasteful comments.  

But, the liberal minded person noted that someone like Sotomayor also shows rudeness.  Sotomayor is known to be a tough questioner, who will not let something go, including when she thinks the argument is wrong.  As with Justice Jackson (who is starting to lecture a bit in her questions), this can be problematic.  OTOH, on a 6-3 Court, it can be an important way to get out a dissenting point of view.  And, she gets such cheers there.  

The ability of justices to be "hot" has increased with the extension of argument time (in practice, if not in official time allotted), including a chance for separate justice questioning (a continuance of the telephone arguments practice).  Thomas has consistently taken his turn, often given the opportunity to lead things off.  I think this is helpful, largely because he has important power, so advocates should be able to address his concerns.  He tends to be polite.  

The whole thing is complicated.  I think there is some value to air things out, including in a way for the public at large to listen. Some want it all done in briefing. There is plenty of briefing.  The oral argument provides a chance for the justices to air things out and engage. And, it is a way for the general public to listen in.  I think there is value to that.  

There’s no guarantee, of course, that this will be the eventual holding in Moore. There was sufficient skepticism at the oral argument that it is possible to envision this case ending like the 2020 “rogue elector” case Chiafalo v. Washington, in which a unanimous Court rebuffed a request to adopt a novel theory whose consequences for American elections would be enormously destabilizing. But if the Court does adopt some “compromise” position, the magnitude of that decision shouldn’t get lost in relief about what the Court didn’t do. A partial victory for the ISLT is still far more than the theory warrants.

The independent state legislature doctrine case generally was understood to have gone better for the side of sanity than maybe we might have expected.  Kate Shaw (the most optimistic one on Strict Scrutiny Podcast) suggests we should be somewhat warier.   She also wrote an article on the question with Leah Litman.  So, she has a special concern about this issue.

I am with her in that I think even the camel's nose in the tent can be a problem here.  I also think it is a matter of my expectation.  I basically did not think it would be that bad in the end, so the oral argument did not please me as much as some.  The oral argument itself to me was tedious.  It went on much longer than was necessary, largely to give different voices on the sanity side to get their say.  The net result was more nonsense. 

(ETA: A law professor more conservative agrees.)

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The House Judiciary Committee had a hearing on Supreme Court ethics, including having the former anti-abortion rights cleric who accused Justice Alito of leaking Hobby Lobby details.  The coverage had this bit:

Paoletta, who clerked for Justice Clarence Thomas and has represented his wife, Virginia Thomas, in connection with the House Jan. 6 Committee probe, said it was absurd to think that justices like Thomas or Samuel Alito would be susceptible to pressure to be more conservative on issues like abortion rights.

Yeah okay.  Courts related (nominations especially), we also (thankfully) the sane and expected end of the Georgia run-offs.  Senator Warnock, who had five races (primary, special, full, and two run-offs) in two or so years, won.  This will bring a 51-49 majority, which gives Senate Democrats a clear majority in committees and so on.  

This will generally help to avoid ties in committee, which required a special discharge vote, often needing VP Harris to come for a tiebreaker.  This also took time.  This should speed things along.  And, with the House being controlled by Republicans in January, nominations (and investigations) will be one important thing for Democrats to have.  

[For instance, Trump's taxes finally did get sent to the House.  One can't trust House Republicans to truly investigate them.  They can be sent to the Senate -- preferably asap -- and the Senate Democrats could do so.]

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Another Supreme Court matter was included in the National Defense Authorization Act.  Progressives like AOC opposes the NDAA, largely because it spends more money (like 45 billion this time) than the Administration even asked for.  The NDAA also (against the Defense Department's wishes) removes a mandatory vaccine requirement.  Well, for the COVID vaccine.  The military has to take numerous other vaccines.  

The thing is thousands of pages long, but Fix the Court and others flagged something that allowed a mechanism to keep certain information of the justices and their families private.  There is a valid concern here, with threats made though the problems are if anything more blatantly shown (including a judge and a judicial family member murdered) for the lower courts.  The House Democrats tried to apply protections wider in the past but failed.  As I understand it, the issue at hand only applies to justices.  

Jane Meyer (in a well-spread tweet) spoke of the provision resulting in Ginni Thomas' contacts becoming a "national security secret" or something. This is an exaggeration.  I followed Fix the Court's lead, and went to the section of the bill involved and found this bit eventually:

"shall not apply to display on internet of covered information of an at-risk individual or immediate family member if information is relevant to and displayed as part of a news story, commentary, editorial, or other speech on a matter of public concern"

I did not do a deep dive here.  I am open to the idea that the provision is too overbroad, even if a liberal law professor like Laurence Tribe assures us that he helped write it.  Nonetheless, this exception alone would seem to be reassuring.  Also, the rule seems to be mainly geared toward wide releases, such as displays on the internet.  In other words, it is not like a litigant concerned about conflicts has no right to flag the matter to the Supreme Court.  Overall, I think there has been some confusion here.  

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This week ends the oral arguments for 2022.  There will be orders on Monday, after the final scheduled Friday conference of the year.  There are also two executions pending this month, so we should have one or two orders on them if only to reject final appeals.  So, see you next week. 

As a preview, here are some grants, basically non-controversial.