SCOTUS Watch: Libs Have Their Day

SCOTUSBlog provides a summary of the announcement of opinions which is even more helpful since the Supreme Court refuses to provide audio or video.  So, we can't see Jackson and Sotomayor provide a straightforward summary, Kagan have some fun with a dog toy case, and Roberts provide a long announcement with a bit of drama in a voting rights case.

Justice Ketanji Brown Jackson is first up with Health and Hospital Corporation of Marion County v. Talevski, finding that the Federal Nursing Home Reform Act unambiguously creates enforceable rights under Section 1983.  Barrett and Roberts concur to note why it is an easy case. Gorsuch flags a potential way to challenge something like it in the future. Alito and Thomas dissent.   

The case is one of those "trying to do too much but you never know" cases that worry liberal court watchers.  Another possible liberal win is federal regulations and/or criminal cases that are stretched too far.  Justice Sonia Sotomayor handled Dubin v. United States, which limits the scope of identity theft under a federal criminal statute.  Gorsuch, at times worried about federal power, concurred to snark a bit about how far they went.

Then, there are a range of pretty safe cases like the dog toy case which led to a trademark challenge from Jack Daniels.  Kagan had some fun with that one, including bringing a prop to the opinion announcement. Sotomayor (with Alito) concurred to touch upon one issue while Gorsuch (and Thomas/Barrett), while "pleased" to join, questioned the value of a precedent involved.  

The unanimity was a bit surprising, but it was a narrow holding turning on partially that the toy not merely being a parody but a "brand" itself.  We get pictures too.  

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The last way for liberals to win is to avoid backsliding on important matters (such as the Voting Rights Act).  You might also get a narrow win that is nice but not too exciting, especially since it is a 5-4 breakdown on something that should be much less divisive.  And, sometimes you have a somewhat (or more than somewhat) surprising win.

Allen v. Milligan has a bit of each. President Biden said:

Today the Court ruled that Alabama likely violated the Voting Rights Act by drawing a map that diluted Black votes in the state. The right to vote and have that vote counted is sacred and fundamental — it is the right from which all of our other rights spring. Key to that right is ensuring that voters pick their elected officials — not the other way around. Today’s decision confirms the basic principle that voting practices should not discriminate on account of race, but our work is not done. Vice President Harris and I will continue to fight to pass both the John Lewis Voting Rights Advancement Act to restore and strengthen the Voting Rights Act, and the Freedom to Vote Act to ensure fair Congressional maps and that all Americans have their voices heard.

Multiple voting rights advocates were rather shocked at this. Some did remind us that this is the one that the Supreme Court held up in 2022 on their shadow docket (see Steve Vladeck's book) and in the process (others also were blocked) helped the Republicans win a narrow victory in November in the House elections.  The margin of victory was less than the number of House districts involved, all likely to have been Democratic-leaning if the lower court rulings were allowed to stand. 

So, yes, I agree with Prof. Melissa Murray's take.  We can note the victory without being too excited.  People are also not really sure that the ruling turned on the law. One professor argued this was partially Roberts' revenge for Dobbs (abortion).  Many figured it is a response to criticism and concern about going too far.*  Kavanaugh (who was the one vote that switched and who joined most of the opinion) seems to be the sort of prudential sort that would find such weighing quite copacetic.  

Others warn about what is to come -- we didn't have too many really bad rulings this term and the affirmative action case among others are coming.  I think all of these issues (not sure about the revenge thing as much as Roberts finding a mild way to balance it to show the Court is reasonable) play some part in judging.  Lines are drawn. They aren't just mechanical. Wins have some baggage.  

And so on.  Somewhat related, the voting rights advocate Dale Ho (nominated in 2021) appeared to be finally about to be confirmed as a district court judge in New York.  But, a Democratic senator was out for health reasons and it seems Manchin might not want to support him (Manchin rarely opposes nominees, and unclear why he is being a tool unlike say an environmental secretary) so there was no margin for error.

This led to the confirmation being held up.  This pisses me off. Not a single Republican was willing to at least not vote because they so despise voting rights that a blue state district court judge cannot be confirmed.  Why should they get any comity like blue slips if they refuse to act reasonably?  

It is just evidence of having them play you as fools. Dick Durbin is an asshole on this.  The evidence that Republican hardball in the courts helped to win them the House of Representatives only reaffirms this is not a time to be soft.  It isn't too hard.  It just isn't.  It pisses me off.  

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More to come next week (orders and two days of opinions).  

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* One Slate analysis argued part of it is that Roberts is bothered by "really bad arguments or overreaching activists."  

And, at one point suggests (a bit tongue in cheek) that "perhaps we have reached the part of the show where simply not being punched in the face over and over at the high court counts as a good day."

Still, the opinion is the law, and lower court judges can't just say "Hey, he didn't really mean it."  This includes a respectful summary of the Voting Rights Act precedents and Kagan comments like:

The principal dissent complains that “what the District Court did here is essentially no different from what many courts have done for decades under this Court’s superintendence….” That is not such a bad definition of stare decisis.

Anyway, life goes on.  

ETA: Also, Melissa Murray and Steve Vladeck co-wrote an op-ed to expand their Twitter comments. Bottom line: don't be fooled into thinking all is well.  Biden reminded us we need a voting rights bill.  Holding a flawed line is not fantastic. 

And, SCOTUS needs to be reformed, including addressing the likes of Kavanaugh, who might eventually, kinda do the right thing, at times.  Don't settle for crumbs or even a bit of crust.

People have pushed back on their tone since it was not a trivial victory.  But, it's too late not to be wary.  And, Kavanaugh was the fifth vote, tossing in a possible poison pill. Ditto that 7-2 with three justices in the majority making sure to hedge and limit.