SCOTUS Watch: Odds and Ends Edition

The Supreme Court will have its next conference next week. 

Odds and Ends 

Meanwhile, we have odds and ends. For instance, an unexplained order dropped summarized here as “Supreme Court Rejects Bid to Revive Washington State Voting Map Said to Hurt Hispanics.”

Also, they dropped Rules of Appellate Procedure, Bankruptcy Procedure, Civil Procedure, and Evidence. ETA: Steve Vladeck talks about this in his latest substack. You can tell by these updates that even my moderate attempts at SCOTUS summaries involve some deal of work. 

Justice News 

[ETA: I have joined others in being annoyed that Breyer has continued to act like he is still on the Supreme Court. 

He noted -- on a podcast with James Carville of all people -- that he intends to serve on the court of appeals ala David Souter (who has not for a few years). 

He remains a judge on "senior status" even though he hasn't served as one since his retirement. Okay. Well, that is helpful information on why he is so nonresponsive to questions on active issues. He could have said that on Colbert to clarify, for instance.]

Justice Breyer tried to play the "we are all friends working together" card in a guest NYT op-ed. This "silliness" (to cite the more polite criticisms) made him look ridiculous. It also aggravated people given the reality:

The most generous explanation is that Breyer’s intended audience isn’t the average reader of The New York Times, but his former colleagues still serving on the bench. Even if that’s the case, I’m skeptical that reminding them of the good times they’ve shared will do much to affect the actual decisions that are made. If those pleasant memories couldn’t sway his conservative colleagues when Breyer was actually voting on opinions, there’s little reason for them to listen to him now.

I am not a fan of the Sotomayor/Barrett (kumbaya) appearances. How about having such an ideological tag team show up in front of Congress as they have in the past when funding was at stake? The decision-making at SCOTUS -- including refusing the Senate's request to show up to talk about ethics -- makes me not in the mood to watch these Court CYA enterprises. 

We can promote discussion of judicial matters, including ideological tag teams to find common ground. Breyer's heart is in the right place. The criticism is not that people want him not to promote a liberal-minded approach. It is how he is going about it. 

A few people are pushing Sotomayor (and at times Kagan) to retire, fearing the Democrats will lose control of the Senate. The official Biden Administration line is that it's her call. And, her "Sure, I'm upset, but I can just fight on" public sentiment suggests what it is.  

She is not Ruth Bader Ginsberg. She's younger, her long-term condition (diabetes) has been stabilized for years (RBG had cancer more than once), and she quit smoking years ago. It also shows the limits of term limits. She has been on SCOTUS for about 15 years. A standard term limit proposal is 18 years. It won't totally stop gamesmanship.  

Melissa Murray (who clerked for her when she was an appellate judge) argued on Twitter it's too late overall to worry about this. Likely so. Democrats are concerned about the November elections, particularly Biden's re-election. Sotomayor is not likely to suddenly change her mind. 

Also, the criticism seems regularly to be a tiresome means to critique weak-willed Democrats and/or liberal justices. The sentiment does not come from nowhere. I am annoyed at the lack of any full dissent in Trump v. Anderson. There should be no chance Democrats will allow Republicans to block the first Muslim appellate judicial confirmation.  

Murray et. al. want Democrats to focus on SCOTUS as a whole, including how Thomas and Alito want Trump to win so they can retire. As one  person noted: 

The best way to ensure that Sotomayor (or Kagan, or Jackson if you’re really pessimistic) retires under a Democratic president and a Democratic Senate majority is to elect them.

Fair enough. Still, there can be more than one "point" and bad election maps are something to factor in. We are not like the stereotypical dumb blond who can't walk and chew gum at the same time. Court of Appeals judges continue to take senior status because of who controls the nomination process. This factored in when people called for Ginsburg (pre-Trump, the election winds blew badly) and Breyer (with a 50-50 Senate) to retire.

The bottom line is that our courts matter. Membership and length of service are issues we should address. "Just win elections" is not the only "point." Courts are part of what elections are about. If there is a specific point, and often there is not, it is to carefully balance our messaging. 

Lower Courts 

How about that new federal judicial policy that looked like it would suppress judge shopping? A key target of conservatives said, "We prefer not to." The long-term results of the policy change thus are "to be continued." 

Meanwhile, state court races continue to be important. New York votes for local judges (though the people are voting for choices others make first). Many races do not have more candidates than slots to fill. And, there is very little information out there about the choices. It's a joke.

The importance of state courts is shown by multiple abortion-related cases. The Florida Supreme Court overturned its protection of abortion rights (6-1) while allowing ballot initiatives to stay on abortion (4-3) and marijuana. There is a sixty percent requirement to pass. People are optimistic both that it will pass and that it will help Democrats. 

Meanwhile, an intermediate Indiana court supported a religious liberty challenge to the state abortion ban. If Hobby Lobby can have an RFRA claim against providing birth control as part of its insurance policy, Jews and Muslims whose beliefs deem it religiously essential to have an abortion should also be protected. The law has various exemptions. 

The concurring opinion goes further, including arguing the law itself violates Establishment Clause principles. We can be wary about RFRA exemptions. If we have them, they should be evenhanded. Also, personal abortion choice is different from various public regulations. 

Anyway, this is a long haul. We will see how the state supreme court rules. And, yes, the New York Trump criminal trial is still on.