SCOTUS Watch: Opinions & (Sigh) More Alito News

Alito Letter

I will primarily defer to Chris Geidner (with reference to a good Slate piece) on the details here. 

Alito sent a letter to both houses of Congress and refused to recuse in two pending January 6th cases. The letter mixes troll and grievance. He in part declares:

I am confident that a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would include the facts recounted above do not meet the applicable standard of recusal.

As the Vox analysis argues, he uses the SCOTUS code of ethics to avoid a stricter statutory provision ("shall") that applies to justices. Rep. Raskin in a NYT op-ed wants the government to press the issue, tossing in a due process argument. 

His examples are easier calls than this one. And, it isn't just "Merrick Garland" not likely to want to poke the bear, playing the long game. But, the time to draw a line in the sand is upon us. We should not just worry about typical financial recusals. 

You can read more here and here. The second is a discussion of other federal laws that Thomas appears to have violated. There are in theory civil and criminal sanctions in place in those cases. Ultimately, a binding ethics rule with teeth should be in place. Democratic trifecta, please. 

Finally, Alito's discussions of his wife's independent control over their homes remind me of this Fourth Amendment case. The letter has a lot, including a reference to Mrs. Alito's interest in "religious flags." Does she ever fly the Christian flag, which has Christian Nationalist implications, including on January 6th? 

I do not know if this is the last chapter in the ongoing Alito flag saga -- I doubt it. In fact, later in the day, CJ Roberts released a short letter rejecting Durbin/Whitehouse's request for a meeting. He repeated his former argument that Chief Justices rarely meet with Congress. They have in the past; he also has privately met with members for certain reasons. Those things, however, are not mentioned.  

When reading about the Washington Post's role in reporting their own role, I was reminded of a famous Justice Holmes quote about the common law. It has a broad application to the law itself and other matters:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

Meanwhile, Justice Barrett's husband is involved in a Fox News case. This article shows evidence she has not properly disclosed her husband's possible conflicts. 

Anyway, it doesn't work that way Sam, and both you and Thomas should resign. 

SCOTUS Opinions

There were three opinions, none of which were earth-shattering. Kavanaugh with a unanimous ruling:

The Second Circuit failed to analyze whether New York’s interest on escrow law is preempted as applied to national banks in a manner consistent with Dodd-Frank and Barnett Bank. 

Sotomayor had another unanimous ruling involving an NRA claim that the New York Department of Financial Services pressured regulated insurance companies not to do business with them. I think the claim is exaggerated. Also, as noted in this summary, the official sued might be protected by qualified immunity. 

But, at the "motion to dismiss stage," the Court found enough to let them move on:

The NRA plausibly alleged that respondent violated the First Amendment by coercing regulated entities to terminate their business relationships with the NRA in order to punish or suppress gun promotion advocacy

Gorsuch has a brief concurrence to underline his support of coercion claims. Jackson has a longer concurrence wary of the open-ended nature of the claim, suggesting some limits that would be present in other cases.  

Some people thought the timing of Alito's letter suggested one of the January 6th cases would come down. Alito did have a 6-3 (liberals dissenting) but it was a habeas case involving an ineffective counsel claim. 

The opinion overturned the opinion below that supported it. Sotomayor (with Kagan) dissented narrowly, agreeing the court below erred. They wanted to send the case back to try again. Jackson's similarly brief dissent was more critical of the majority opinion:

I agree with JUSTICE SOTOMAYOR that we are not the right tribunal to parse the extensive factual record in this case in the first instance. That is doubly true where the Ninth Circuit committed no legal error in reviewing that record to begin with.  

The "parse the extensive factual record" has added context when we remember the liberals' strong dissent to Alito doing that in a racial discrimination voting rights case. 

To toss in a footnote, the drug-related case by Alito for which Jackson had a strong dissent was updated with two corrections. The usual practice is to wait until it is put in the final volume of opinions, which is handled much more quickly. I am not sure why a couple times they still followed the old policy of linking a correction on the Opinion Page. 

Next Steps

The justices had a conference today. Perhaps, they talked flags. There is a pending capital case that I will address separately.  An Order List will come on Monday. 

There is also a notice on the calendar of possible opinions next Thursday. More hot-button cases are still pending.