SCOTUS Watch: Final Oral Arguments

Book Review 

Demand the Impossible: One Lawyer’s Pursuit of Equal Justice for All by Robert Tsai is about Stephen Bright. Bright is a movement lawyer who is especially concerned about the death penalty. He was 4/4 in cases at the Supreme Court though the last one (in the Gorsuch Court) was 5-4. 

The book is a quick read (under 200 pages) with a chapter for each case. We learn about the cases, including learning about both sides of the oral argument. A few more pages are provided about the overall concerns. The title suggests the point of view. If you generally support the idea, that's fine, though even if you do, there is a certain blandness to the whole thing. 

It's a decent book. It tells us some about Bright's life. Still, the basics can be summarized in a magazine profile of the man. I was underwhelmed by the lack of complexity of the book. A bit too much "talking to the choir." 

You can check out a video with the subject and author here.

Oral Arguments 

The last week of oral arguments of the term covered homelessness (Roberts for some reason decided to be a bit of a jerk here, including multiple times asking if being a bank robber was a "status," suggesting his level of respect for the argument that homelessness is), emergency abortion care (women justices showed the most concern for the patients), and the Trump immunity case (women justices showed the most sanity).  

Barrett has a lot to answer for, including Dobbs v. Jackson, but if you are stuck with a Republican nominee, she has her good points, especially in oral argument. I saw someone I knew online from back in the day who is a strong critic of conservative courts agrees she was the best choice for the Kennedy Seat. AB is developing a smooth writing style too.

The last two have a certain high anger potential. The liberals at times brought that out though I expected more sometimes. But, they are working within the system. They are these people's colleagues. Still, this Talking Points Memo comment in response to the decent chance that the Trump immunity case will bring delays into 2025 is appropriate:

Everything comes into conceptual alignment if we understand the Court’s corruption: corrupt in its construction, corrupt in its jurisprudence, venally corrupt as well, though that is the least of its problems.

The word "corrupt" has a dark flavor to it. Sometimes, it appears unfair, at least to that breadth. Nonetheless, how many cases will it take for the inherent problems to be clear? How many handwaves? How much of this crap, which is underlined by being expressed by a voice of liberal reason. 

The 14A, sec. 3 case was accepted by some liberals, even though it was based on bullshit. This case was different! They would leave the D.C. Circuit ruling (which took too long as is given the stakes) in place! I expect more attempts to find the bright side, especially since the final opinion will likely reject full immunity. A human effort, sure, but at some point we have to admit the dark side. 

The special counsel asked the Court to take this case in December 2023! Instead, it delayed the oral argument to the last possible moment (even having a rare Thursday oral argument). The hopeful voice of reason, Chief Justice Roberts, for some reason found this statement from the court of appeals [which received much praise for its well-crafted opinion] problematic:

A former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws.

This was labeled a troublingly tautological statement when someone with a constitutional duty to faithfully take care that the law is being executed is prosecuted when they fail. 

On that front -- like when Barrett reminded Trump's attorney that the Impeachment Clause is general (including applying to the Supreme Court) -- Sotomayor appeared to be being quite personal when she noted:

In the end, if it fails completely, it’s because we destroyed our democracy on our own, isn’t it?

The path began with Trump v. Anderson, the 14A, sec. 3 opinion involving a Court that released a pathetic unsigned opinion that they didn't even show up to hand down. 

Such cowardice should be a badge of infamy that stains their reputation until redeemed. The hope was that the liberals would trade that off for sanity in this case. The sanity already was lost. We are left with determining how bad the result will be. 

The aggravating thing is that there is a feeling of helplessness about what you can do. A few people talk about Biden expanding the Court as if he has magical powers. I am annoyed by this. It takes only a basic understanding of how our system of government works to see the problem. 

A few passionately demanded (including one liberal critic who annoys me, to subtweet, so to speak) that Democrats do it as if a 50-50 Senate with the balance of power in Manchin and Sinema had any hope in hell. You are not going to seriously change the nature of the Supreme Court -- and it being necessary doesn't change that -- with razor-thin majorities.  

The bare minimum here is the need to retain control of the Senate. A tiny minority still will only do so much, probably, but without Manchin and Sinema, there is more of a chance for limited majority rule. 

We can imagine the possibility of breaking a filibuster for something. I am not talking about expanding the Court here. Perhaps, something like voting or abortion rights. At the very least, confirmation power will be retained. Again, who blocked Garland and gave us those three Republican justices at the end of the day? 

This Court is in large part a result of Republicans controlling the Senate. Democrats with a trifecta might have a chance. Uphill battle. There are also other things to do to put pressure on the Supreme Court. Liberal states, the federal government, and the general public have various techniques here. I also want stronger leadership on the Senate Judiciary Committee. Horrible moments at the Supreme Court remind us of the battle in front of us.  

Meanwhile, though a few liberals "meh" it, Trump was watching during the New York criminal trial while a National Enquirer executive provided an in-depth conversation of a conspiracy to criminally hide information from the American electorate. 

I KNOW -- never believed otherwise -- the ultimate test is in the ballot booth. But, we have a right to demand our other institutions, including our courts, do their part. And, react when they fail us. 

Finally, we should be able to watch a video of this "civics lesson," especially when visual reactions of justices and others provide a complete understanding of the happenings. Video helps people understand what is happening, some people more than others. Like opinion announcements, justices showing up in open court with the two advocates is done since it supposedly adds to the overall experience. 

(C-SPAN -- which it does not always do -- had the oral argument [with pictures of the people involved] on one of its television channels. It often only has it available online.) 

Upcoming 

The Supreme Court now full time will focus on opinion writing. The next oral argument will be in October. 

They will continue to have [Thursdays instead of the usual Fridays] conferences and release order lists. There is no scheduled conference (and corresponding order list next Monday) for the first week of May. 

The "Today at the Court" summary (click 4/26 on the calendar on the SCOTUS website) for Friday tells us that we "might" (have not seen a cancellation yet) have opinion announcements on May 9th. I would appreciate a brief press release (there is a separate "news media" pulldown list) providing such information to promote transparency. 

Miscellaneous orders and other ongoing handling of pending cases will continue as usual.