SCOTUS Watch

After some blockbusters last term (abortion, religion, guns, etc.), SCOTUS has so far been much more low-key this term. This is partially because not much has gone on. There are still (with five opinions on Thursday and one not decided) under twenty opinions this term so far. There will be another opinion day next week.

Amy Howe analyzes basically the one big (in a fashion) case decided this week, a fractured judgment that upheld a California law regulating the sale of pork:

Approved by California voters in 2018, Proposition 12 bars the sale in California of pork products when the seller knows or should know that the meat came from the offspring of a breeding pig (also known as a sow) that was confined “in a cruel manner.” This means, among other things, that sows must have at least 24 square feet of living space – about the size of two bath towels.

Many thought the justices would somehow strike down the law though the oral argument hinted they were unsure how to draw lines. The case involves (though Kavanaugh especially separately suggested it concerned more) the so-called domestic commerce clause doctrine. That is, even if Congress doesn't say so, certain things can violate the power of Congress to regulate interstate commerce. Or, otherwise violate the rules of a common national market set forth by the Constitution.

The principle is not new though conservatives such as Scalia, Thomas, and now Gorsuch don't like it.  Gorsuch has a point.  It is difficult, without blatant policy-making, to weigh things here.  The courts do weigh policy questions to some extent.  The question then is when they should. And, economic matters do seem like something Congress should regulate here.  

A majority as a whole split the difference and upheld the law in the end.  This is something that does not split between normal ideological lines as seen by the divisions.  It even led Jackson to join a partial dissent, if not totally, which is the first time she did in a fully argued case.  She has still not been fully in dissent.  Which is something.  

There is also the policy choice here.  I think it does help to some degree to have limited efforts that help animals.  There is an argument (Michael Dorf and Sherry Colb have made it to some degree) that such laws are counterproductive, in part by making us think animals are now raised humanely enough.  I have my doubts. Change comes in installments.  

Anyway, this is the sort of opinion Breyer loves -- somewhat of a surprise without blunt ideological divisions. Why? It has various legal policy implications without rising blatantly ideological concerns.  It's an example of where conservative positions can have liberal results.  And, there are three basic blocs with Jackson being the outlier in one but even there she might be doing so since there is a precedent involved.  

Some also might appreciate that the Court restrained itself, but it is unclear how much the justices wanted to do that. There very well might be four votes to send it back with an implication that the 9th Cir. was very possibly wrong.  Also, it is simplistic to call the Court simply activist, full stop. They pick their spots.  You need to know your "enemy" here.  

ETA: I see that the opinion has a few URLs.  The first opinion of the court this term to have them.  

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The other opinions are not too notable and were mostly unanimous with a justice concurring a bit here (in one Alito opinion, Jackson didn't join a little portion for some reason), Thomas dissenting there.  The cases do not seem too important though there are some things here and there to comment on of varying interest.  

Kagan in a 8-1 opinion started this way:

The question presented is whether the statute categorically abrogates (legalspeak for eliminates) any sovereign immunity the board enjoys from legal claims. We hold it does not. Under long-settled law, Congress must use unmistakable language to abrogate sovereign immunity. Nothing in the statute creating the board meets that high bar.

Very Kagan.  

Jackson dealt with an administrative case involving a "noncitizen" (the statute speaks of "aliens" but she specifically used that term), citing a Kavanaugh opinion that did so.  Alito with Thomas concurred briefly, saying they would decide less than the majority, and quoted something that used "alien."  She also has been praised as a clear writer. 

Jackson tossed in something that is simple but profound too in these trans-hating times. To cite the beginning of the headnotes summarizing her opinion:

Petitioner Leon Santos-Zacaria (who goes by the name Estrella) is a noncitizen in removal proceedings. She sought protection from removal, which an Immigration Judge denied.

The Court also unanimously in a pair of cases continued their policy of making it hard to convict people for political-related fraud, both cases arising from the Cuomo Administration.  As compared to campaign finance cases, again, you find more unanimity in this area, and it is concerning.  Without trying to parse things here, combined with the Citizens United stream of cases, it makes it harder to rein in political wrongdoing.  

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For those keeping track, the Supreme Court has "rescheduled" (which means the justices meeting in "conference" did not examine it yet) looking at the Glossip appeal.  

There will be orders on Monday.  

Meanwhile, 89-year-old Sen. Dianne Feinstein, working on a limited schedule per doctor's instructions, finally came back to help push a few judicial nominations out of committee. The pictures make her look very frail. Overall, it is outrageous that she is not resigning.

Senate Democrats still refuse as a whole to admit the level of effort, an "all-in," necessary to face the moment, even though there is both a need and probably an opportunity given the growing disgust at the Court. It's aggravating.