SCOTUS Watch: Order List Day

The Order List was dropped today because yesterday was a federal holiday. Whatever you want to call it. 

An aside. I'm half-Italian, half-Irish, and joke that March 18th (between feast days for Irish and Italian) should be called "JP Day" in honor of my first and middle names. Columbus Day is not a great means to promote Italian heritage. The guy is a dubious character. 

(See here for a book summary that references the Italian thing.)

I referenced a New York gun regulation case that Sotomayor rejected in her role as circuit justice. The litigant tried again with Thomas. This maneuver is allowed but basically (am not sure if it ever worked) hopeless. It was here though it took a little while to process (referred to the Supreme Court conference last month).  

The other somewhat notable matter (see first link) is that Justice Thomas again made clear he does not like New York Times v. Sullivan (absolute malice standard for libel). The case was not a good platform to challenge it, says he, but the law is still bad and not originalist.  

Even Thomas in his statement notes "the law was not static" regarding free speech but argues the issue of libel was a state issue the Court "usurped" in Sullivan. Apply that to guns, maybe?  

Anyway, Justice White over the years also argued the law went too far in one direction but some reporter on the Supreme Court talking about "nuking" freedom of the press here is rank hyperbole. That sort of talk is how token limits are labeled as "course correction" (see my previous post).  Yes, his selective concern for originalism here does help some elites get protection (Trump is against the rule) but any change would not just help one side. Left-leaning types would also use weaker libel laws.  

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There were not a lot of oral arguments scheduled this month (the end of the month is technically the November argument) though a few are notable for various reasons. An important administrative law case was up last week. 

A former Sotomayor clerk and Take Care Blog podcast host (remember that anti-Trump blog?) vs. Eugene Scalia (yes, that Scalia) today went head-to-head in a whistleblower case. Easha Anand sounded quite good, having the steady rational tone of the U.S. solicitor general.  

A former Trump acting solicitor general challenged the How Appealing Blog (appeals courts matters) in a maritime law case. Both are lower key cases, the sort of "meat and potatoes" that the Supreme Court should handle to oversee the interpretation of federal law. 

A districting case involving racial discrimination claims is up tomorrow.  

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Today's Mental Health Awareness Day. It also is World Against The Death Penalty Day. A somewhat inapt day for an execution. 

Jedidiah Murphy was scheduled to be executed by Texas today. A district court granted a stay of execution. The conservative Fifth Circuit Court of Appeals upheld it 2-1 with a curious "fake" dissenting opinion as Chris Geidner discussed. I'm unsure how upset we should be about the dissent but it does seem at least childish. As he noted:

The district court had issued Murphy a stay of execution because of ongoing questions about Texas’s post-conviction procedures and the availability of DNA testing (or, to be more precise, unavailability) for certain people facing execution, including in a case pending before the Fifth Circuit.

The Supreme Court then -- without explanation -- vacated the stay. The liberals would have denied the request. Why? They didn't say. I have been on this point for a while now, but this pisses me off. 

And, this is not some longshot appeal which is basically a Hail Mary even in the eyes of this opponent of the death penalty. It is a more special case where a lower court (here a conservative one) held up an execution but the Supreme Court actively stepped in to overturn the stay. The "fake dissent" business just makes it more notable though again I don't know how much we should care about that sort of thing. 

A Dallas County jury convicted Jedidiah Murphy in 2001 for shooting and killing Bertie Lee Cunningham [79-year-old woman] during the carjacking. I continue to think that executing people on death row for over twenty years is problematic. (See Breyer dissent in Glossip v. Gross) One issue in the case is a dispute over the aggravating circumstances involved.

It is gratuitous to overturn the stay here. I guess the "fake" dissenter has the final laugh. Texas executed Mr. Murphy after the Supreme Court (now without dissent) denied one more request alleging the lethal injection drugs were tainted. He was one of the younger people executed at 48.

Over the years, various concerns involving the drugs (including secrecy and lack of clear guidelines) have not obtained much Supreme Court review at all after an early case (Baze v. Rees) involving procedural safeguards during the execution itself was rejected 7-2. Justice Stevens said the evidence was mixed but did suggest if the death penalty as a whole was at issue, he would deem it unconstitutional as arbitrary. Breyer concurred in judgment, only later turning against the penalty as a whole.  

Once, Jackson (with Sotomayor) dropped a written dissent after the execution. There is a bit of logic to doing this, not rushing to get it in by the end of the day or something. After noting my disgust on social media at the lack of a written dissent, I left that open.  I doubt it will happen but if she drops one later today, I will edit this entry.  

(I was going to publish this yesterday but delayed it when the execution did not happen until later in the day.)