SCOTUS Watch

Ethics

Jodi Kantor co-authored another inside look at the Supreme Court. The subject is ethics, which will continue to be an issue while Republicans refuse to address it since their people control the Supreme Court.  

The article provided an interesting examination for the general public. Court watchers realize that the justices are divided ideologically on this question. The article includes some new details, including how Gorsuch made his voice known about the problems of ethics rules. 

The letter from Supreme Court Clerk Scott Harris did not explain why Gorsuch was recusing himself, saying only that "consistent with the code of conduct" he had decided not to participate.

Gorsuch has also decided not to take part in an upcoming environmental case. A request was placed for him to recuse given links to a billionaire involved in the case. It would have been helpful if there was more clarity on why he recused. Conservatives, as I have noted before, do not follow the practice of the liberal justices of openly citing specific ethical guidelines when officially not taking part in a case.  

Some people, especially conservative-minded types, worry about the leaks involved in these news articles. If the institution could handle The Brethren, I think the limited details provided here won't mean the end of the institution. Leaks provide a safeguard when powerful institutions are involved. Gorsuch worries about federal power. 

Maybe, he should be consistent when his own federal institution is involved. To the degree he is open to recusals when appropriate, I appreciate it. 

Ethical guidelines cannot simply be about self-regulation. It is not for other courts. Mark Joseph Stern rightly is not too impressed by Gorsuch's actions. Nonetheless, self-regulation is not without value. His recusal suggests that pressure still can encourage the justices to act. 

Oral Arguments 

The Supreme Court has two weeks of oral arguments in December. The cases largely do not involve "hot button" cases. The one exception involves trans rights and medical care for children. 

A historical moment was the argument by the first openly trans advocate in front of the Supreme Court. The argument (as expected) did not bode too well for the challengers of the Tennessee law. 

The liberals were strongly against it. Gorsuch, who was likely to be an important swing justice (Bostock), didn't ask a single question. Roberts, the other conservative vote in Bostock (a statutory case) sounded doubtful about the challenge. 

As will regularly be the case, liberals are left to be hopeful about Barrett's vote. Barrett was surprised at the idea that there was a long history of anti-trans legislation. Seriously? I would think it was in the briefing somewhere at the very least.  

I was wary about this whole thing with this Supreme Court. Chris Geidner argued the federal government was correct to appeal it, including because the law is particularly bad. Maybe. Who am I to say, I guess.

The other thing is that as seen by people waiting overnight in the cold for limited seating, watching the oral arguments is useful. Live audio is nice; video would be better. Other courts manage both binding ethics rules and televised oral arguments. 

We are left with a few observers, including those with press credentials to give us a visual accounting. 

Other SCOTUS News 

I'll let Amy Howe summarize one order:

The Supreme Court on Tuesday appointed a former clerk to Chief Justice John Roberts to defend a ruling by the U.S. Court of Appeals for the 4th Circuit in an immigration case after the Biden administration declined to do so.

Friday's conference will lead to an Order List on Monday. As is normally the case, the justices dropped an order in the afternoon stating the cases (three, involving two issues) they granted for review. One is somewhat notable -- it involves the power of U.S. courts to try a damage case involving terrorism (PLO).

There will be one or more opinions announced on Tuesday. Last time that meant a one-sentence "our bad" opinion noting it was a mistake to take the case. 

I think there will be a real opinion this time though it won't be a barnburner. SCOTUSBlog flagged the news but the regular reader of the SCOTUS website would be left searching out the calendar.

A simple press release on the relevant page would be a more logical approach. 

New York Legal News

I grant I might pay too much attention to national news. New York has legal news as important as dealing with each miscellaneous SCOTUS order.

New York City, for instance, recently decriminalized jaywalking. Now, that does not seem to be that profound, especially since people tend to jaywalk without worrying about arrest. 

Nonetheless, jaywalking laws have been used as a reason to stop and frisk people. Evidence suggests they are arbitrarily applied. And, they have little safety value in practice. The law goes into effect in February.

Deborah Rhode wrote an interesting small book about adultery explaining its history and problems with prohibition. NY was one of the remaining states that had a criminal law (rarely enforced) on the books. 

New York, perhaps surprisingly, can be conservative about change. It took a long time to become a no-fault divorce state.  New York has now decriminalized adultery.  Note that bigamy is still not allowed.