SCOTUS Watch: Order Day

Ethics Update 

We therefore call for Justice Alito to recuse himself from certain proceedings as outlined above, renew our call for the Supreme Court to adopt an enforceable code of conduct for Supreme Court justices, and request a meeting with you as soon as possible. Until the Court and the Judicial Conference take meaningful action to address this ongoing ethical crisis, we will continue our efforts to enact legislation to resolve this crisis.

Senator Durbin and Whitehouse wrote another letter to Chief Justice Roberts.* Roberts chairs the Judicial Conference, which in part handles ethical matters. Fix the Court on Twitter notes Roberts has met with senators privately in the past for budget and security-related matters. 

So, it is not just that he is Chief Justice. But, people do have a right to be suspicious. Why wouldn't he just do nothing again? Yes, Alito's problems warrant the justices as a whole to act. The letter also tosses in the Thomas problems. 

However, self-regulation is a limited solution. Let's remember as well the justices do not merely serve for life. They serve for "good behavior." I want to underline that since many people do not know about it. More emphasis should be provided on the basics.  

And, Congress has a role in enforcing that obligation. Letters are not enough. We need subpoenas and hearings. Yes, if we had a Democratic trifecta, they could pass legislation. But, there is stuff that can be done before then. 

Value of Video 

A veteran Supreme Court reporter had this bit of color about a late-term oral argument:

They sounded testy and looked weary. During the scheduled one-hour hearings that often ran twice as long, several justices held their heads in hands. Alito rolled his eyes. Elena Kagan wore a pained expression. Clarence Thomas rubbed his face. In some cases, when Ketanji Brown Jackson, the junior justice, posed her final queries at the end of a clean-up round of questioning, most of the others didn’t look her way.

The larger atmosphere suggested many were simply not listening to each other or respecting divergent views – a pattern bound to make the final sprint of negotiations especially difficult.

Appellate courts often cannot get a true sense of trials from a dry record. A judge and jury react to visual cues. The same applies to understanding an appellate hearing. This is why Joan Biskupic shows up in person. 

The general public should have video of Supreme Court oral arguments. They also should have them when opinions are announced. We do not even have access to the transcript of opinion announcements. 

Video of other non-argument sessions, including the announcement of orders, is also appropriate. After all, we have complete C-SPAN coverage of Congress, including pro forma sessions that last under a minute. 

Order List

Today's Order List has a few interesting aspects. The Supreme Court granted one case:

Whether the Clean Water Act allows EPA (or an authorized state) to impose generic prohibitions in NPDES permits that subject permitholders to enforcement for exceedances of water quality standards without identifying specific limits to which their discharges must conform. 

[I again wish the Order List was not merely a scanned page. It should have links to the docket pages.] 

The liberals and Kavanaugh recused from denials. The liberals, Sotomayor for the first time I know of having a chance to cite the new ethical guidelines, were sued by some unhinged plaintiff. Kavanaugh was recused in the Michael Avenatti Nike case. I am not sure why. That is wrong.

[ETA: Fix the Court on Twitter: "Justice Kavanaugh recuses in Michael Avenatti petition (cert. denied), likely due to Avenatti representing a woman who claimed Kavanaugh acted lewdly at parties in the '80s." Yeah. He caused more trouble than help for the opposition there.]

Gorsuch wrote a short dissent from denial involving a case involving the alleged constitutional right as applied to states for a twelve-person jury. He is shocked that the Supreme Court did not apply the traditional federal rule. 

He elides that the cases he cites apply to federal cases. If we are going to apply the federal jury rules to the states, does that mean grand juries should be required too? How about civil juries according to the Seventh Amendment? 

The Supreme Court eventually (with Roberts, Alito, and Kagan dissenting; Kagan silently joined based on her support of precedent) held that state juries had to be unanimous. Concurring justices noted that racial equality concerns were involved in the case. I think Kagan could have concurred on that limited ground. Alito's dissent was too broadly written.

By then, only a single state (and Puerto Rico) did not require them. This case would affect more states. 

There will be opinions on Thursday. An execution is also scheduled on that day. 

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* I checked the Wall St. Journal interview article the letter references. The NYPL has an article database allowing me a free look. This is a way to get around paywalls. 

Alito talks about the differences in the style of his conservative colleagues. He argues that the liberals have the same style. 

This is not true. Kagan is pragmatic, concerned about precedent, and willing to compromise. Sotomayor is more her own person, the liberal Alito in some ways. Breyer surely had his own style when he was there. Jackson is also showing her own voice, including an appeal to purpose.