SCOTUS Watch

Opinions

After a short break, the Supreme Court came back on Friday. 

A conference and public sitting (often merely for swearing in lawyers) was on the schedule. We learned mid-week that we would also have opinions though they always say "may" to provide an out if something ever comes up. 

The opinions were each short and unanimous. Chief Justice Roberts' first signed opinion of the term (he might have written the per curiam in the insurrection case) was nine pages regarding the Federal Arbitration Act. Sotomayor dealt with a Securities and Exchange Commission issue in less. 

Barrett, a busy bee so far, dealt with a Takings Clause claim. Her opinion was also short (under eleven pages). It helpfully summarizes precedent. She has shown some flair in writing crisp and approachable opinions. She also tossed in some humor:

The Takings Clause’s right to just compensation coexists with the States’ police power to engage in land-use planning. (Though at times the two seem more like in-laws than soulmates.) 

Five justices joined various concurrences to underline how limited in scope the opinion was. As Gorsuch noted separately, the county government granted the lower court was wrong on a key point. To cite the headnotes: "The Takings Clause does not distinguish between legislative and administrative land-use permit conditions."

On the minutiae front, Barrett included links in her opinion. There is a separate page for URLs to prevent dead links. The justices have not used too many this term so far.  

The Supreme Court also announced Tuesday and Wednesday will be opinion days. They are starting to catch up in opinion writing, after being behind schedule. 

Subpoenas  

Some time back, the Senate Judiciary Committee voted to subpoena Leonard Leo (Federalist Society), Harlan Crow, and a third person (who eventually voluntarily worked with the committee). The subpoenas were part of an attempt to investigate ethical problems, including all those gifts received by Thomas. The third subpoena was dropped. How about Leo and Crow?

Leo -- after the committee voted in November -- finally received the subpoena, which he (as expected) rejected.  Senator Durbin (nice floor speech promoting the confirmation of Adeel Magni) did not explain the delay. [Durbin is the Chair of the Senate Judiciary and has been criticized for his soft approach on various judicial matters]  Now, they have to have a floor vote to enforce the subpoena in court, which the Republicans can filibuster. 

Harlan Crow still has not received a subpoena. Since the Republicans can simply filibuster it, doing so would be mostly symbolic. Still, the Democrats had no apparent good reason to delay things. Overall, this underlines how the current subpoena process is absurdly impractical.  

[The below underlines why Steve Vladeck's concerns about being "too partisan" are aggravating. I comment there too.]

The Republicans are full of shit about the whole thing, arguing ethics problems everyone sees is just some ideological campaign against conservatives on the Supreme Court. The problem is that the concern is particularly focused on Thomas and Alito, not every conservative.

Thomas, of course, still has not accounted for most of his free trips on his disclosures, which by and large do not wholly count as “personal hospitality,” given that a private jet or yacht do not count as “facilities” under the reporting exemption.

The link notes Justice Jackson updated some of her financial forms. Kagan and Jackson have explained why they recused. The others have and all of them (except Sotomayor, I believe) have had opportunities to do so since the ethical guidelines have dropped. 

And, to the extent ethical rules should be upheld generally, it should be a bipartisan theme. Plus, the insurrection case was a problem all around, though five justices were worse. 

Orders

The housekeeping order on Friday regarded an upcoming case involving the Eighth Amendment and the homeless (the solicitor general of the U.S. can take part) and an abortion case involving emergency care (divided argument refused). 

The Order List is longer than usual because Sotomayor and Jackson provided a statement (Sotomayor) and two dissents (one each) regarding denials of cert.

Sotomayor provided the statement in a case already undergoing years of a winding road where someone received civil liability for negligence arising out of a Black Rights Matter protest. Someone else hit a police officer with a hard object and the leader of the protest was blamed. 

Sotomayor cites a case that arose later that should block the "negligence" test but notes the denial of cert. could arise for numerous reasons. So, might be okay.  

(ETA: The case was "relisted" seven times while it was being considered. So, there was likely some discussion behind the scenes.)  

Jackson dissents in a case where a coerced confession was treated as a "harmless error." She argues it was wrongly handled, particularly given the importance of the confession on the facts involved. 

Sotomayor (with Jackson) dissents from denial in a case where she flags sex discrimination in peremptory challenges of jurors in a capital case. 

Kavanaugh (without comment) would have taken a case with this question presented:

Whether federal courts have jurisdiction under 28 U.S.C. § 2241 over a petition for habeas corpus alleging that a prisoner’s unconstitutional conditions of incarceration require release, either because habeas jurisdiction generally extends to conditions-of-confinement claims, or because it at least extends to such claims when the prisoner seeks his release from custody?

We also have (again) multiple conservatives (Roberts, Alito, Kavanaugh, and Barrett) who did not say why they recused from cases (Thomas and Gorsuch did so too in the past) while Kagan (Jackson has done this in the past) again explained why. I do not think Sotomayor had a chance to explain since the ethical guidelines dropped.

This Week 

We will also have three days of argument (Mon-Wed) and another conference on Friday. Thursday will be their fun day. Maybe.