SCOTUS Watch & Related Issues

Surprising Win 

The Supreme dropped a housekeeping-type Order List yesterday, adding a rare win for a capital defendant. 

The opinion was unsigned. Justice Alito (conservative on criminal issues) had a brief concurrence. Thomas wrote a dissent joined by Gorsuch (who regularly was conservative in death penalty cases). 

An unsigned opinion of the court is technically only a statement that a majority agreed. We cannot assume those who did not voice an opinion went either way. Nonetheless, it is a safe bet that the opinion was 7-2.

Brenda Andrew, the sole woman on Oklahoma's death row (one of the few states that have an active death penalty), was convicted of murdering her husband. The Supreme Court noted:

The State spent significant time at trial introducing evidence about Andrew’s sex life and about her failings as a mother and wife, much of which it later conceded was irrelevant. 

(A discussion over the usage of the term "slut puppy" might suggest what is involved here.)

The Supreme Court, citing Payne v. Tennesse, found this all unduly prejudicial. Payne is notable as a case that overruled a recent precedent blocking the usage of victim-impact evidence in capital cases. Justice Thurgood Marshall had a strong dissent, his last before announcing his retirement.  

Roe v. Wade Anniversary

The sexism involved provides a logical bridge to remembering that today is the 52nd anniversary of Roe v. Wade. Women's equality is a special aspect of the right to choose along with privacy rights, freedom of conscience, health care, and many other things. 

We can also talk about the Equal Rights Amendment. Michael Dorf, who is as usual a good read on current legal issues, has some thoughts. 

I generally concur, again noting the text of the ERA is more open-ended than the Equal Protection Clause. I do think too much time has passed to consider it ratified, at the very least without congressional action. However, I share the open-ended approach to equality.

As Professor Anthony Michael Kreis notes on Bluesky, this is the moment to start to push back and provide a new framework is now:

Will the party cave and triangulate to Trump and usher in a wave of populism that’s culturally regressive? The time to start and formulate the argument for institutional rearrangement and a fundamental shift in thinking is now— and soon— or never. Whack-a-mole and polite gestures won’t cut it now.

Resistance is not just about winning at the moment. Conservatives played the long game to defeat Roe and we should do the same. Trump is providing a lot of fodder to do so, including executive orders. 

We should also take time to honor Cecile Richards, former president of Planned Parenthood, who died this week. She was the daughter of Ann Richards, the outspoken former governor (D) of Texas. 

Trump Executive Order 

Trump dropped an executive order regarding capital punishment, which includes instructions for the attorney general to target certain SCOTUS precedents that limit the death penalty.  It also instructed the AG to make sure the people on death row whose sentences Biden commuted are suitably treated (nudge nudge). 

Also, she (Pam Bondi is due to be confirmed) should check if they could still be prosecuted by the states. I am not aware of such a proactive attempt to ensure that people are executed by hook or by crook. 

The order also instructs the AG to help states obtain execution drugs. Ohio is one state that has not had an execution for some time because of the lack of drugs. The governor and legislature (both Republican) have shown to rush to address the situation.  

The executive order is framed in the usual Trump tone with invective, dubious at best assertions, and so forth. Four more years of this, as with his existence as a walking lying machine, is horrible.