SCOTUS Watch: More Opinions (Part I) and Ethics (Beat Goes On)

Ethics Again

Ian Milhiser is a liberal Supreme Court reporter at Vox. 

His takes somewhat too often lead with a scare -- will such and such do something horrible! -- but he does also try to balance things out. 

His take on the bump stock case granted there were different reasonable interpretations of the statute. The deciding factor was the ideologies of the judges. This is a "crit" take that was still more sympathetic than those who thought the majority opinion was ridiculous.  

Ian took the "realistic liberal, just stating the facts" approach in his commentary about "What can Democrats actually do about Thomas’s and Alito’s corruption?" And, he is correct that the blunt bottom line is "nothing" unless they win the election. Plus, to do a significant amount, you have to win both houses. The current odds are against that.

He does go too far. The "political theater" (people don't like that; confirmation hearings are sometimes labeled "kabuki" theater) has some value. He skipped over a roundtable discussion (they are in the minority; they can't have a "hearing") the House Democrats recently had. 

The media coverage (the Alito flag author over at NYT now has a piece on the behind-the-scenes happenings in another gun case) has demystified the Supreme Court. Its reputation has fallen. 

If Sen. Dick Durbin had hearings, instead of merely saying how concerned he was and writing letters, it could help too. It will assist in having people know what they are voting for. Congressional oversight is important. The Republicans are often using it for trolling these days.

Still, even there, House Democrats have responded and hit some targets. 

Opinions 

Amy Howe had a convenient summary of the outstanding opinions. No "hot button" ones were decided today. 

Taxes/More Alito 

Chris Geider (Law Dork) has written about the problem that is Justice Alito. Alito's failure to recuse in a tax case is but one data point. Toss in the flags and 1/6 cases. 

Alito joined Barrett's concurrence, which upheld the tax more narrowly than Kavanaugh's opinion. Thomas (with Gorsuch) dissents. Jackson concurs to emphasize that Congress has a broad power to tax. The result is not too surprising though it all took over eighty pages to explain.

The case involves a tax that was alleged to not be covered by the Sixteenth Amendment. It's one of many overreach jobs, some of which the Supreme Court reins back some. Hint: whenever people try to say something is that obscure animal a "direct tax," it's an unlikely story. 

Paul Ryan was okay with this tax and warned about the breadth of the challenge. Time will tell if a broader "wealth tax" will also receive five votes.  

Fourth Amendment 

The presence of probable cause for one charge in a criminal proceeding does not categorically defeat a Fourth Amendment malicious prosecution claim relating to another, baseless charge. 

Kagan wrote a minor Fourth Amendment opinion. Thomas (with Alito) and Gorsuch dissented. It all took eighteen pages.  

Expert Testimony

Persuaded that today’s decision is mistaken, but hopeful that it will ultimately prove immaterial in practice, I respectfully dissent. 

Gorsuch (with Kagan and Sotomayor) dissented in a case involving the proper rules of expert testimony. Jackson concurred, writing separately to clarify her position. 

Thomas had the majority opinion. The excerpt suggests the likely narrow reach of it all though there were 32 pages of opinions, which is a somewhat moderate amount these days.  

First Amendment

Amy Howe summarizes the issue in the last opinion, disposed of by a short unsigned opinion thusly:

The question comes to the court in the case of a 76-year-old Texas woman who was arrested after she – accidentally, she claims – picked up a petition that she had initiated and placed it in her binder after a long meeting. She was charged with violating a state law that prohibits tampering with government records.

The case concerned the proper rules to raise a retaliatory arrest claim. The per curiam narrowly allows her to raise it. We do not know who wrote the opinion. Passing annoyance: the use of a universal male pronoun in a case involving a woman.  

Alito has a much longer concurrence. Kavanaugh concurs basically to say he wouldn't have taken the case, but the opinion is "no harm, no foul." Jackson with Sotomayor concurs to welcome a broader opinion with a footnote criticizing Alito. Thomas dissents.

There are also the inside baseball musings on why this was unsigned. The suggestion Alito had an opinion but lost it makes sense. He might have had the case but went too far for too many justices. The result is a per curiam that did little.

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The Moore tax case is somewhat significant. The others are more flyspeck cases. We are running out of them though there is an interstate water rights case that sounds right up the "give it to the rookie" alley. More opinions tomorrow.

Also, there was a conference today. Order List on Monday.

Meanwhile, yes, opinion announcement audio should be available along with a transcript.