SCOTUS Watch

Ethics 

I know the drill. The “all nine justices are very committed to the highest standards of ethical conduct" bit is the standard "we are all pals working hard for the public" line. But, it is a bit much since we are not morons.

If we are keeping track, it seems like Roberts, Kavanaugh, Barrett, and Kagan now have openly supported -- in some fashion -- a formal ethics code that applies to the Supreme Court. 

Kagan is the only one (to my knowledge) who openly granted Congress some role in regulation. I did not listen to her full answer but the reporting suggested it was a general comment. This is overall appropriate but it doesn't tell one much.  

A person who wants to be optimistic here would appreciate Justice Barrett's general support. I personally do not trust the Supreme Court itself to self-regulate. That is not the constitutional system we have. We have checks and balances. Congress has some role in regulating the "good behavior" of federal judges. That is the test. It is not just "life tenure."

Roberts wrote a letter to the Senate saying it was a threat to the separation of powers to voluntarily show up in front of the Senate Judiciary Committee. Justices have repeatedly shown up in front of Congress. The best approach would be to have a liberal/conservative justice show up. 

Anyway, John Roberts won't save us. I thought the Senate was supposed to have a vote on its SCOTUS ethics bill when it came back for the summer. 

Orders 

We had some notable developments in cases worth watching.

[1] Ghost Guns

SCOTUS, without any comment, granted the federal government's request to lift a stay and allowed it to enforce a regulation involving "ghost guns." Amy Howe has the details, which involve specific companies. 

[2] Racial Discriminatory Districting

After the Supreme Court somewhat surprisingly determined rules against racial discriminatory districting have some teeth, there were various districts involved (including the one involved in the case itself) to address.  

The justices (with Justice Jackson with a brief statement) denied a stay to a Fifth Circuit ruling holding up a re-districting case. The order (not explained) is only found on the "Opinions Related To Orders" page.  

Amy Howe discussed it and summarized Jackson's statement:

Justice Ketanji Brown Jackson agreed with the court’s decision not to put the 5th Circuit’s ruling on hold, but she wrote separately (although alone) to stress that the Supreme Court’s decision not to step in was not an endorsement of the appeal court's order, and that the litigation should be resolved in time for the 2024 elections.

[3] More Guns 

On Friday, also on the opinion related to orders page, a request to stop a district court opinion blocking a Missouri "Second Amendment Preservation Act" was denied. The page now cites "BK" in the justice column (Kavanaugh) which seems wrong since that is who wrote something. The case was handled by Kavanaugh; he wrote nothing. 

Thomas without comment said he would grant the stay. The law purports to block federal laws invading the Second Amendment. Gorsuch with Alito dropped a brief statement, with a charming reference to the case letting Texas' SB8 abortion ban law (pre-Dobbs) stay in place.  

[4] Biden Social Media 

After four o'clock in the afternoon, perhaps after the justices kept track of the news that (after three votes where he got less and less support), Jim Jordan was out of the Speaker of the House race, we had more news.

This is a convoluted case with various ups and downs involving stays and so on. But, the basic point was that the district court (restrained somewhat by the Fifth Circuit) interfered with the Biden Administation's efforts to stop false information from being spread on social media. 

The justices took the case for full argument. Alito with Thomas and Gorsuch publicly dissented. Alito partially complains that the unexplained stay violated standard rules, including not showing a compelling need. He's not consistent here though he might be taken more seriously if he was.

But, the dissent also clearly frames things in a way that assumes the conspiracy theory against the government is accurate:

At this time in the history of our country, what the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate.  

Most unfortunate. Your neutral concern is touching. A major issue here is not only that it is far from clear that the government did anything wrong. The decision below amounts to a prior restraint on the government. The balance of equities, and sure, explain it, seems pretty clear there.  

[Okay. This time the order is dated on the chart "10/23." Someone is having a case of the Fridays.]  

Congress

While the House of Representatives was without a speaker, the Senate operated normally. They went back to confirming judges. Also, Dianne Feinstein's committee slots, including on the Judiciary Committee (her replacement took her spot there), were re-filled without controversy. 

There was a fear that Republicans would block it, helped by the fact they refused to allow a temporary replacement when she was out. But, that is not the same thing, and Republican senators have their seats become vacant too. There really was not much of a likelihood they would have denied a new senator their equal rights as a senator. It would be institutionally extreme in a way that individual senators would find troublesome.  

Sen. Butler, who like Stephen Colbert is out with COVID, has announced she will not run for re-election in 2024. That was a prime reason another possible placeholder, a black woman congressman in her 70s, was not chosen for the position. Good luck holding the fort. 

Term Limits

Sen. Sheldon Whitehouse has been strongly critical of the Supreme Court and has brought receipts. I am not gung ho, however, of his support (with some other good senators) of a term limit bill. It's obviously merely symbolic now. So, since I support them overall, it is okay. 

Nonetheless, I would focus on ethics, including Steve Vladeck's suggestion (in a paywalled One First) of some sort of inspector general, who (which) would provide oversight with teeth (what this could entail would be open to debate). The summary connects the bill with ethics, but I think it is a bit of a reach. I think it takes the eye off the main ball.

Any benefit would be long in coming, this bunch will be here for a long time. What would have a more immediate effect? A term limit bill with court expansion, the latter part not constitutionally problematic. This brings to mind the FDR expansion bill (I'm about to read a book by Robert Jackson, which discusses it) that tied it to those justices over 70. If there was no justice over seventy, there were no justices added. It in that fashion was a means to encourage a seventy-year-old retirement age. 

The argument that court expansion won't happen at this time is no less convincing here than for any other piece of legislation that looks to the future. The term limit bill is definitely not going to happen though there is a lot of public support. It also has the added constitutional problem ("for good behavior"). So, why not combine the two?

I am willing to accept the timing since Sen. Whitehouse is not suddenly not going after the Supreme Court on ethics. I do support term limits as constitutional policy. The blurb in the summary that the Supreme Court was supposed to merely "administrative" originally is somewhat dubious and besides the point (things change as the government grows). However, overall, I think something like an eighteen-year term is a fine idea.

I still think other issues should be front and center. For instance, I recall that there was going to be a vote on the ethics bill after the summer break. This never happened. What happened to that? Durbin is still out there hoping Roberts will do something. Eye on the ball, people. 

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As you can see, even when there are no oral arguments, stuff is happening that relates to the Supreme Court. It is after all the head of the third branch of government. Anyway, no order list next week is scheduled, but orders might drop related to the conference. An execution is also scheduled.