SCOTUS Watch: Ethics and Opinions (Part I)

Alito and Ethics Reform

The Supreme Court Historical Society has already received some controversy. It provides ideological groups to obtain access. It appeals to groups who bring cases to the Supreme Court for funding. Nonetheless, still seemed a low-key place.

Progressive activist, Lauren Windsor, paid the fee and did her secret taping / I'm one of you routines to get audio from conservatives. Get the smelling salts. 

Roberts sounded reasonable, Alito said some iffy things, and his wife sounded unhinged. See here. 

People want Sotomayor and Kagan to retire.  It's rather late in an election year even if we want them to do so. If we want messaging appeals, let's ask Roberts to retire for the good of the Court. He won't. Neither will they.  

Maybe, I would be more stressed out if Roberts et. al. were willing to talk with Congress.  House Democrats had their own unofficial hearing. The Senate Democrats put a binding ethics bill to a vote, which required unanimous consent. Of course, Republicans blocked it. Sen. Durbin continued to sound so concerned. Where are the damn hearings? 

Meanwhile ... a good article on the Supreme Court advancing transparency by permanently flagging edits to opinions. 

Abortion Pills

Under Article III of the Constitution, a plaintiff's desire to make a drug less available for others does not establish standing to sue. Nor do the plaintiffs' other standing theories suffice.

The Supreme Court (as expected) via Kavanaugh disposed of the mifepristone challenge on standing grounds. The case was extremely weak. So weak that the Fifth Circuit (reversed again) toned down the extreme district court opinion. 

Abortion pills are in danger in the states. The challenge here is trying to block them across the board. Or, at least, to make their use harder. Anti-abortion health personnel argued that the possibility of harm from the drugs (which rarely cause problems) would give them standing since they might be forced to provide medical treatment (which is doubtful too). And other weak tea.

The argument was so bad that (this is somewhat surprising) Alito and Thomas did not address the merits. Thomas used his separate concurrence to attack standing rules generally. The result is a game of "keep away" that Republicans should appreciate, for the cynics around here. 

A possible problem here is that the opinion assumes a strong conscience protection, which can allow doctors to refuse to provide care even if the result is a threat to a person's health. A lesson that even "easy" and "okay" opinions, especially with this Supreme Court, can be problematic. 

Also, when you dispose of a case on standing grounds, it might come up another way with different plaintiffs. So, the whole thing is really a big "to be continued." 

Labor Dispute 

Justice Thomas had two cases. Eight justices went along with one with Justice Jackson having a strong partial dissent:

The National Labor Relations Board can bring in-house enforcement proceedings against employers and labor unions for engaging in unfair labor practices. Section 10(j) of the National Labor Relations Act authorizes the Board to seek a preliminary injunction from a federal district court while these administrative enforcement proceedings take place. The question in this case is whether the traditional four-factor test for a preliminary injunction articulated in Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7 (2008), governs the Board’s requests under §10(j). We conclude that it does, and therefore vacate and remand. 

Thomas handles this in ten pages. Jackson disagrees with the reasoning in part. However, her opinion is sixteen pages more because she is concerned with a wider principle:

I am loath to bless this aggrandizement of judicial power where Congress has so plainly limited the discretion of the courts, and where it so clearly intends for the expert agency it has created to make the primary determinations about both merits and process. 

Jackson continues to speak her mind. She has promoted the importance of congressional intent and judicial restraint. 

"Trump Too Small" Trademark

Someone wanted to trademark the slogan "Trump Too Small," which arose from a Marco Rubio/Trump 2016 campaign bit. Trademark law blocked such usage of the name of a living person without their consent. UPHELD.

The policy was not viewpoint-based, which is a basic "no no" in First Amendment jurisprudence. It is content-based, which can be. Thomas for a unanimous court agreed the policy was constitutional. The justices split multiple ways on why.

The main problem is that Thomas (with Alito and Gorsuch going along the whole way) relied on "history and tradition." Kavanaugh (with Roberts) did not want to only rely on that. 

Barrett was wary of the whole enterprise, not being impressed by the way Thomas collected the historical evidence. Sotomayor (for the liberals) -- taking a potshot at Thomas' Second Amendment case -- rejected the enterprise:

Yet this back-and-forth highlights the indeterminacy of the Court’s history-and-tradition inquiry, which one might aptly describe as the equivalent of entering a crowded cocktail party and looking over everyone’s heads to find your friends. 

It bothers me when a majority opinion needlessly causes confusion. Thomas could have obtained a majority of five by toning down his history and tradition bit (Kavanaugh and Roberts didn't join a section mostly involved in sniping at the other opinions). These plurality opinions are ideological bait.

The bottom line here is that the opinions provided a chance for the justices to debate the "history and tradition" test that has been used in multiple opinions. 

Thomas and Gorsuch care about that. Alito will selectively use it and do so passionately when it suits. Roberts and Kavanaugh will pragmatically go along. Barrett is wary and willing to say so (Prof. Barrett). The liberals do not like it. 

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So, low-temperature day, but let's not be too "happy-clappy" about the first case. The last case suggests dangers ahead. The middle one shows Jackson's plans to make herself heard, even if she is going alone. You go girl. More to come.