Highest Court Watch

N.Y. Court of Appeals Fight: Gov. Hochul chose unwisely with her second, and so far most important, the court of appeals pick.  

Overall, Judge Hector LaSalle is probably a decent lower-court judge and not a bad guy.  If the Republicans controlled the Senate, he might even have been a decent option. He is just not a good pick for a Democratic trifecta state to lead a potentially 3-2 (lean liberal) court in a country where that is ever more important.  

Hochul, for whatever reason, continues to act like this is her biggest fight and she can't let go.  The Senate Judiciary Committee, with the Republicans treating him as their guy (one of the remaining two supporters is a conservative-leaning Democrat), rejected him 2-7-10. Some accounts provided a more nice sounding "10-9," but the seven are "without recommendation."  She still acts like she wants to fight on. 

Take the "L." Multiple progressive groups point out problematic rulings.  Cries of "unfair" with last-ditch hopeless approaches (she wants a floor vote, which she probably at this point will lose -- Senate Democrats would look weak to give in to her at this point).  We are at about the "if only Pence votes his conscience" stage. Not a good look, Kathy. 

Her argument that a vote by the Senate requires a floor vote when it is generally understood a vote by the Senate assumes a committee system (which the Senate by rule agreed to so the complete Senate in effect voted already) is weak.  A court battle is not only a long shot but is messy hardball that directly challenges the separation of powers.  Again, to what end?  

The bottom line is that she chose unwisely, and the Senate Democrats did their job. Let's move on and let it be a learning experience for all.

N.Y. Gun Laws Stay In Place: Hochul has promoted a vision that overall is progressive though some tough-on-crime rhetoric is mixed in there.  Gun regulations fit in here.  

So, she should be happy with a minor victory in which the Supreme Court did not interfere with a lower court lawsuit involving the regulation of gun shops.  Alito did even say "okay, but you know, the Second Circuit is being a bit mean" this time.  This is not really too notable on some level, but then again, we are dealing with the Barrett Court.  

The true believer nation of the approach of the challengers here is suggested by the conclusion of a recent brief (see that link): 

"Petitioners can do not much more under deadlines and word counts to place this Record into the hands of Your Honor and respectfully request the granting of emergency relief."

Progressives upset at Hochul (framed as a "Republican" by some in unsurprising overkill) might not recognize this framing:

"The swirl of the two issues – abortion and firearms – became the self-described “anger” of Hochul as she stood at a literal church pulpit, asking for forgiveness for “the anger in my heart.”

As with the bump stock regulation struck down in the 5th Cir., we shall see how this ends up.  One more thing.  The briefs have many hyperlinks that allow for easy access to their websites.  On the other hand, orders in the order list do not have links, including to the docket page, for easy access.  

About that Leak Investigation ... The Wall St. Journal ("uh huh" some said) recently noted that there was movement on the leak investigation of the Dobbs draft opinion.  Turns out there was.  Another leak? 

Anyway, checking the Supreme Court press release page, there was a "Press Release Regarding Investigation Report," which was basically a "see attached" with no further comment. Attached is a report of the investigation.  

Bottom line?  The report, even using a relatively weak "preponderance of the evidence standard" could not say who leaked it.  You can take that as you will, including saying (with assurance) Alito (or Thomas) leaked it. And/or that "they don't want to know."  And so on.  

There are some interesting details, including carefully framed language that led court reporters not to be able to say if the justices themselves were interviewed. IF one leaked it, my theory would be that they got help, and the report seems to suggest the likely suspects signed sworn statements that they were innocent.  Also, other details -- sham or not -- will provide some information that is of some value to court watchers.  

The response led to a new statement (so important it was posted on the website!) on Friday afternoon that is short enough to quote in full:

Statement from Marshal Gail A. Curley:

During the course of the investigation, I spoke with each of the Justices, several on multiple occasions. The Justices actively cooperated in this iterative process, asking questions and answering mine. I followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe that it was necessary to ask the Justices to sign sworn affidavits.

This is something.  First, it is a rather important bit of information that leads one to wonder why it wasn't included.  This includes the fact that (to some limited extent) it is exculpatory.  I realize as a whole that it looks suspicious too but you know a little bit of both, maybe? 

Second, it is not clear why it was still unnecessary as compared to others, who from what we know were not "implicated" either.  The fact people signed a sworn statement that they did not do it in other cases helped show their innocence.  It will look (probably appropriately) suspicious the justices did not do so as well.   

The statement also implies ("spoke with") is a more informal process than the "interviews" (you need to read things closely sometimes) with other people. This whole thing is so absurd.  We had law professors and court reporters assuming the justices were not even "spoken with," sometimes in rather assured tones.  So, again, why not include that bit of information in the report?  But. apparently, Jim Jordan wants the full story, so stay tuned!

(This whole thing including firm assurance by people it is a certain person -- and not the same one -- again brings to mind my basic rule that being cocksure about things is often not a good idea.  Toss in a qualifier.)

Anyway, the preface to the court marshal's report includes some shock at the whole thing. It is very well a bad thing to leak court work product like this -- like a jury deliberation and the like, there very well is value to keeping the process secret.  And, I don't know what value the leak really provided even granting that sometimes exceptions can be made.  

I have seen some people (suddenly I might add) feel we should see draft opinions.  To what end?  This was not the final draft.  Opinions often undergo multiple drafts.  A single draft can be misleading.  What is the value to remove the freedom of negotiation allowed by privacy here, especially since it is basically never going to matter anyway?  A leak can in fact interfere with some ongoing litigation in a bad way as well.  

But, the biggest "betrayal" is the release of the opinion itself. And, the report -- especially with the mystery continuing -- still leaves a cloud over the Supreme Court.  Coverage like this surely is not a net positive.  The whole thing is absurd but something of a sideshow, especially unless this means more leaks of ongoing deliberations.  

The bottom line, as we prepare to celebrate and mourn the 50th anniversary of Roe v. Wade, the current Supreme Court is very tainted. Use your appropriate adjective (illegitimate or not), but that is the bottom line.  I cannot simply watch and listen to them do things without having a general feeling that they do not deserve my respect.  

The investigation (including using someone multiple people have noted isn't used to this sort of thing, not a more independent, more aptly skilled outsider) just adds to the fire. I saw one suggestion earlier that it would be a good idea for SCOTUS to have some sort of formal semi-independent investigatory body to self-regulate.  In his end-of-the-year report in 2021, Chief Justice Roberts assured us self-control was possible.  Sure.  An ethics law that applies to the Supreme Court is still a far ways from happening.  This whole clusterf-  just adds fodder for those who say it is necessary. 

I had a rule not to call the Trump trio "justices" like I never called him the "president," and I'm not inclined to give ceremonial titles to each group.  But, I have started to basically not find it useful to go out of my way to not use "justices" without some caveat. Maybe, I'm partially in the "acceptance" phase to that limited degree, but I do not accept SCOTUS is just legitimate, full stop.

===

I also saw the author of the infamous lower court opinion that declared state-led pledges to God in public schools were unconstitutional has died at 99.  (To be clear exactly what was at stake.)  I think that is right. The Supreme Court later (somewhat validly) punted on prudence grounds.  

Judge Goodwin turned out to have a long career (over a half-century though on senior status for the 21st Century really; still, the NYT obituary notes he never formally resigned).  He was the sort of Souter-esque sort, it seems, that New England-type Republicans used to support.  RIP.  

===

Monday: On Friday, the Supreme Court website noted there "will" be an Order List on Monday but there "might" (the assumption is that there will, but that is the usual frame since maybe there will be a reason to push it back) be an opinion or opinions released.  The opinions will be announced from the bench (we are back to that) and then posted.  

Is that it for the day?  Well, I'm posting this now.