SCOTUS Watch: More Opinions

General Comment

My Supreme Court opinion analysis provides my personal summary of events. You can find more detailed discussions at places like SCOTUSBlog and Chris Geidner's Law Dork Substack. 

Chris Geidner, for instance, flagged how the tax case is carefully crafted to rule narrowly and leave open other tax policies to constitutional attack. The abortion pill case was dismissed on standing grounds. 

Nonetheless, the opinion (also written by Kavanaugh) spoke of an open-ended conscience exemption for health personnel. The craft suggests one reason why a small number of opinions take so long to be decided. Majorities are carefully formed, repeatedly by using opinions that are limited in scope. Again, however, how limited can be misleading.  

The Supreme Court carefully decides what to do. We should not take their actions merely at face value without digging deeper. This is not inherently problematic. Courts will always have complexity. But, we can be overly naive. 

For instance, I'm bothered by some who blithely accept the Supreme Court taking and slow-walking the Trump immunity case as if it is merely some law school thought exercise. It is a time-sensitive issue with real-world effects. The justices are strategically choosing to do things here. 

Various Opinions

The Supreme Court released five opinions. Amy Howe's summary of the remaining cases (now reduced by five) remains helpful. The big case involved guns.

Alito did not show up for the second straight day. Justices do not always show up for opinion announcements. None of the cases were opinions he wrote. The per curiam might be an opinion he originally was writing. Not sure if this matters though if he doesn't show up next time, it might mean more.

Water Rights

I expected an interstate water dispute to be handled by Justice Jackson. A 5-4 majority agreed with the United States that it had the right to block the states' consent degree. A groundwater/irrigation case is important for Western states.

(Gorsuch dissented for the conservatives, minus Roberts and Kavanaugh.)

Marriage/Border Issues

Barrett for the conservatives (minus Gorsuch) quickly (the oral argument was in late April) reached out to decide that a "citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country."  

Gorsuch noted they could have ruled on narrow grounds that the requested information was supplied. He tossed in, as he did in multiple opinions except when Jackson expertly dissented in another case, he respected his colleagues who disagreed with him on certain points.  

Sotomayor for the liberals provided a strong dissent protecting the spouses' interests. She disagreed with Gorsuch on the minor point that even on limited grounds she should have lost. Overall, this case underlines how the majority selectively decides to reach out to determine things. 

The dissent is very concerned about marriage liberty. The majority specifically says it is only talking about the right of a noncitizen to travel to the U.S., including to be with their spouse. I won't handwave the dissenters' concerns -- they are there, not me -- but how bad is the majority really? 

Confrontation Clause / Expert Testimony

The result was unanimous. The reasoning is somewhat more fractured. Kagan wrote an opinion that held that: 

When an expert conveys an absent analyst’s statements in support of the expert’s opinion, and the statements provide that support only if true, then the statements come into evidence for their truth. 

The majority leaves open some questions for the lower courts to handle on remand. She has five votes for the whole thing with Gorsuch and Thomas getting off the bus partially. 

Gorsuch (politely) and Thomas disagreed somewhat regarding her terms. Alito (and Roberts) agreed the testimony was unallowable hearsay. But, he angrily disagreed with the supposed breadth of the opinion's effects on expert testimony ("monstrosity," "radical change," "plain wrong").

[Alito's ire is not too surprising. Notably, Roberts joined in, especially since he usually shows his respect to Kagan.] 

Sentencing Factors 

Insiders know how much trouble the Armed Career Criminal Act gives to the Supreme Court. Today's case:

This case concerns the Armed Career Criminal Act (ACCA) and the Fifth and Sixth Amendments. ACCA imposes lengthy mandatory prison terms on certain defendants who have previously committed three violent felonies or serious drug offenses on separate occasions. The question we face is whether a judge may decide that a defendant’s past offenses were committed on separate occasions under a preponderance-of-the-evidence standard, or whether the Fifth and Sixth Amendments require a unanimous jury to make that determination beyond a reasonable doubt.

Gorsuch says the judge may not. Roberts agrees but notes it might be a harmless error. Thomas would go further if given the chance. Kavanaugh (with Alito dissent). 

Jackson partially joins Kavanaugh's dissent. Of note:

She additionally has prior experience as a Vice Chair and Commissioner on the U.S. Sentencing Commission, as a federal public defender, as a lawyer in private practice, and as a law clerk at all three levels of the federal Judiciary, including for Justice Breyer.

So, her expansive dissent -- which cites her broad disagreement with a shift in sentencing jurisprudence known as the "Apprendi/Booker" cases -- is particularly interesting. Jackson argues the approach as a whole (as compared to certain defendants) is not helpful to overall fairness. 

Gorsuch's failure to not simply politely disagree with the person most experienced on the question is notable.

Domestic Violence/Guns

The Supreme Court -- as expected -- upheld the ability to disarm someone under a domestic violence restraining order:

When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from enclosing firearms while the order is in effect. Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.

 

Jake Charles (a 2A expert) has a useful thread. He notes, for instance, that the opinion emphasizes the law allows a hearing. Hunter Biden, for instance, was convicted under a blanket ban for those who use certain drugs. 

There are multiple concurrences but only Thomas (whose thirty-plus page dissent helps explain the over 100 pages of opinions) dissents. Alito goes along without comment. 

The liberals note their disagreement with the Bruen (written by Thomas) Second Amendment case but note it was not being challenged directly. Sotomayor (with Kagan) emphasizes:

Rather than asking whether a present-day gun regulation has a precise historical analogue, courts applying Bruen should “conside[r] whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” This "relevantly similar" rule is vague and open-ended. 

Jackson's concurrence politely but pointedly notes the opinion led to a lot of problems, and it was a self-inflicted wound:

Meanwhile, the Rule of Law suffers. That ideal—key to our democracy—thrives on legal standards that foster stability, facilitate consistency, and promote predictability. 

Kavanaugh blathers for over twenty pages. Gorsuch says originalism (which is their obligation to follow!) allows it, especially since this was a facial challenge (a broad attack). He politely dissents from Thomas' views.

Barrett also grants originalism. It has "discoverable historical meaning . . . has legal significance and is authoritative in most circumstances.” Suffice it to say, I disagree that it is "authoritative." It has some discoverable meaning. Nonetheless, we should follow the lessons of history up until today, applying common law principles of legal analysis. 

She notes it is based on the idea that ratification is a "democratic act" that we must follow. Reliance on history and tradition should only be used if it clarifies the originalist moment. She disagrees with how Thomas applied it. 

A striking point of Thomas' dissent was that he noted that the government could always convict a domestic abuser and put them in prison. The net value of liberty in that and allowing someone to be at home without a gun is unclear. 

I think Jackson provides the most honesty. The majority is a somewhat reasonable application of precedent. But, only tweaks the troublesome precedent, and a lot more confusion reigns. Plus, it does not there is a bit too much artifice. 

Next Week

There will be an Order List on Monday. An opinion day has been announced for Wednesday. There likely will be more. 

They might squeeze everything in two days but the Trump immunity case seems to be something you don't hand down along with four or five other opinions. 

Also, two executions are scheduled.