SCOTUS Watch: A Bit of Summer Life

A few odds and ends in addition to the order list.

First off, we continue to get news articles about the justices and their financial habits/possible ethical concerns. A general look at book deals suggests it is okay for the justices to write them (and profit; that is part of the deal and there is a general First Amendment value to most of this stuff).  But, we need full transparency and clarity on the rules.  

Justice Ketanji Jackson won't provide a statement about her pending book deal.  The public information office sometimes releases statements to the press, which do not provide us a general clearinghouse to have access to them.  So, op-eds like this reference statements (like that of Justice Sotomayor; an email informed me it was originally linked to a news article) while other articles might reference bits of what is said.

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The "shadow docket" -- for whatever reason, including public pressure, the Trump Administration is no longer trying to obtain a bunch of stays, a 6-3 Court settling in for the long whole -- might be the path to less relief than recent memory.  But, the latest involving a controversial pipeline -- a stay being applied while the court of appeals was hearing oral arguments -- shows it still has some life.  And, the same degree of opaqueness.  

Why can't the justices -- every single one here -- provide a bit more clarity (a reference to "short" orders that say basically nothing annoys me) on what led them to decide to do this?  Prof. Vladeck in an earlier tweet basically read the tea leaves on what the order meant.  A charming way to run a railroad.  

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Gorsuch granted an "administrative stay" regarding a long dispute in Oklahoma on the proper reach of state and local jurisdiction over Native Americans.  This is a temporary hold so he can hear from each side.

The immediate case concerns a 2018 speeding ticket and the reach of state power.  The article notes that the tribe and individual here argued that Tulsa police can still issue tickets to tribal citizens under cross-deputization agreements already in place with area tribes. So, the immediate rush in the specific case is unclear, though much larger issues are ultimately involved. 

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Judge Reed O'Connor, a conservative hack who oversteps repeatedly went after regulations of "ghost guns" recently.  Justice Alito put a temporary administrative stay on the ruling.  It will run out next Friday.

This is just the also ran on Justice Alito news today.  Oh yeah.  Alito has already gone to the Wall St. Journal recently to defend himself against a Pro Publica article in a bit of what is known as the "Barbra Streisand Effect"  (get more attention by complaining aka it's counterproductive).   Wall St. Journal was the conduit of conservative insiders during the Dobbs deliberations.  Alito takes things to the next level.

We now have "Samuel Alito, the Supreme Court's Plain-Spoken Defender: He has emerged as an important justice with a distinctive interpretive method that is pragmatic yet rooted in originalism and textualism."  Alito spent hours talking to the authors.  A lot of prime stuff! 

It's behind a paywall but it's getting a lot of attention, including because it is co-written by a long-term conservative legal activist that has a case in front of the Supreme Court next term as well as is defending Leonard Leo, who is in the news of late for various reasons.  Alito's involvement here with this guy seems to be a blatant conflict of interest.

Besides whining that people have not defended him, a prime comment he made is that he voluntarily follows current congressionally set ethical rules, but that he thinks any binding rules are unconstitutional.  Congress has no power to regulate the Supreme Court.  In any number of ways, this is an absurd statement, a range of rules in place including the number of justices, clerks, salary, quorum rules, and so on.  Also, Art. III expressly says that Congress has the power to regulate its appellate jurisdiction.  

There is also the general Art. I, sec. 8, cl. 18 power given to Congress to enforce constitutional provisions.  The explicit text is open-ended and is not just applicable to congressional matters.  Surely, there are various implicit and explicit limits to how far Congress can go.  Nonetheless, the breadth of Alito's comment -- a Supreme Court justice who has had great power to interpret the Constitution for decades -- is patently false.

Alito is telling Congress and in a fashion John Roberts to fuck themselves. There is a limited number of things realistically that can be done in response though it is patently wrong for the Republicans to blithely ignore this sort of thing.  For instance, this should force nine of them to go along with Democrats to support the ethics bill.  Maybe, they can think about that over the August recess.  Not that they are likely to do so.  Still.

Democrats and anyone with credibility, however, should respond to this blatant violation of good behavior as strongly as reasonably possible.  Steve Vladeck's (Shadow Docket) wife is now a legal recruiter and sometimes speaks about legal issues on Twitter and elsewhere.  She has a tweet up about how judges sometimes have abusive relationships with clerks.  As she notes: "Some judges are truly horrible."  

We have a system in place where "grin and bear it" is not the only option.  It may seem like that but it's not true. 

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We can hear more about this case next week and pending executions also might also lead to Court action.  As shown here, summer order lists are not the only thing the Court is doing. Summer recess or not, it is still in session.