SCOTUS Watch

There are no scheduled order lists, argument days, or opinion days until February 8th, when there is a special Thursday oral argument regarding Colorado keeping Trump off the ballot. Briefing continues.

On the same day the Supreme Court released its last Order List on Monday, it also released two miscellaneous orders. An Order List is scheduled and disposes of multiple matters. Miscellaneous orders deal with specific things and are not normally scheduled. 

Border Issues 

Texas has clashed with the federal government regarding the border in various respects. This includes putting up buoys and razor wire as their own personal border security. 

The problem here is when this clashes with the federal government. The U.S. Constitution gives the federal government, even if certain states and the Speaker of the House disagree, authority to regulate the border. 

Art. I, sec. 10 grants an exception when a state is invaded. In the case of imminent attacks, a state need not just let invaders come in without a response. 

But, this is only when there is no ability of the federal government to step in. This is not the case now. Texas disagrees with its response. That is a policy question left to the federal government. 

The Supreme Court, by an unexplained by either side 5-4 (Thomas, Alito, Gorsuch, and Kavanaugh) vote, lifted a lower court injunction that denied federal border personnel to cut razor wire put up by the state. The injunction provided a limited exception for emergencies. The issue now will be up for argument by the infamous Fifth Circuit. 

It is troubling it took weeks for the Supreme Court to do that. The justices also should have briefly explained themselves, especially those who dissented in what appears to be a rather easy case. The close vote also suggests behind-the-scenes jostling. 

Districting 

Amy Howe summarized the other order this way:

The Supreme Court on Monday declined to intervene in a battle over race and redistricting in Michigan. In a brief unsigned order, the justices denied a request by the state’s independent redistricting commission to put on hold a lower court’s ruling that requires it to redraw state legislative maps for the Detroit area because the original maps relied too heavily on race.

"A brief unsigned order" again suggests it is more substantive than it is. This is the order:

The application for stay presented to Justice Kavanaugh and by him referred to the Court is denied. 

My hobby horse to have SCOTUS journalists stop using "a brief unsigned order" is all it did was deny something continues. 

Anyway, this is just one of many battles over districting, which are very important to combat discrimination because what lines are drawn can determine who is chosen and who wins. 

Personnel News 

We also have a press release:

Chief Justice John G. Roberts, Jr., today announced the appointment of Judge Robert J. Conrad, Jr., as the Director of the Administrative Office of the U.S. Courts, effective March 1, 2024. He will succeed Judge Roslynn R. Mauskopf who has served as Director since February 1, 2021, and who will retire from the Federal Judiciary on January 31, 2024. The Chief Justice also announced that Deputy Director Lee Ann Bennett will serve as Acting Director of the Administrative Office for the month of February.

Robert Conrad was a Bush43 appointee. Nonetheless, he appears to have had bipartisan respect, including an appointment during the Clinton Administration. 

Death Penalty

As discussed here, the upcoming Richard Glossip case is tricky. Since the state is not challenging his claim (see the discussion), someone must be appointed to argue that side. An order was dropped doing just that. 

(Amy Howe provides an analysis. I appreciate her discussion of these "very brief orders," which helpfully clarifies what is involved.) 

Talking Oklahoma, FFRF Radio flagged an NYT piece about Phillip Hancock (the governor refused to follow a 3-2 suggestion to commute his sentence) choosing a humanist chaplain to be there for his execution. 

Good in-depth discussion, including how both traveled from Christianity to non-belief in God. The Supreme Court had various struggles with applying the rules for end-of-life chaplains. 

It is fitting to allow them in an evenhanded way. Life event rituals are an important religious practice. 

Opinion Announcements 

As we wait for the Supreme Court to do something else, Oyez.com has dropped more opinion announcements from last term. 

These are helpful, especially to provide justices an outlet to dissent now and then. If the justices feel it useful, they should put them on the website for those unable to listen. 

This includes multiple long dissents from the bench from Justice Sotomayor (wedding website and affirmative action). Thomas also dropped a concurring opinion announcement in that case. We also have Kagan's dissent in the student debt case. 

I am not aware of any conservative dissents from the bench last term. 

ETA: At the ALTAR of the Appellate Gods: Arguing before the US Supreme Court by Lisa Sarnoff Gochman is a personal account by the woman who debated the state side in Apprendi v. New Jersey. Here's a review with a striking personal aside by the author of the review, who I read without knowing about it. 

Apprendi is an important landmark case that required so-called "sentencing factors" such as racial motivation that increased the sentence had to be found beyond a reasonable doubt by the jury. If a sentencing factor influenced an existing sentencing range (even if the net effect would be the same time in prison such as a 5-15 possible range where the 15 would be applied), it's a different matter. This was addressed in a range of cases before and after Apprendi. 

Gochman's account provides a down-to-earth "you are there" account of the whole process. At times, her asides were a bit annoying. A few times (wait? Isn't a state as well as a federal law generally considered constitutional unless constitutionally suspect?) her commentary seemed off. 

Overall, it's a good addition to a cottage industry of books about Supreme Court cases. A smaller number are personal accounts, this one twenty years later to provide a sense of distance. Has some pictures. 

(She was understandably on a human level upset that she lost, but it was far from a surprise, as she flagged beforehand. Someone flagged it to her right away: they probably didn't take it to uphold the lower court. 

Also, near the end, she grants they were right to overturn. It would have been less dramatic if she noted this earlier.)