Constitution Day

September 17 was Constitution Day and David Souter's Birthday. Meanwhile, Trump continues to be anti-constitutional, including regarding the Media. Happy Suffrage Day (comments).

More Executions

Stacy Humphreys 

Georgia planned to execute Stacey Humphreys for a double robbery/homicide last December. 

The press (as discussed here) tried to obtain more information about the execution. Open access is important for due process and public education.  

A state court blocked the execution. He might be eligible pursuant to a state law protecting victims of abuse. Net result: the execution warrant ran out.

Jeffery Lee

Alabama planned to execute Jeffery Lee using nitrogen gas. A lower court, not blocked by the Supreme Court this time, held it was unconstitutionally risky. They used lethal injection.

The final appeal challenged Alabama's ability to switch methods. Lee's lawyers argue the state said "nitrogen gas," and they don't have the right to switch now. Lee offered the firing squad as a backup option (one is required) when challenging the nitrogen gas. 

Denied without comment. The liberals pick their spots. The back-and-forth nature of this execution provides some grounds to drop a statement or dissenting opinion. A statement would flag concerns, but not enough to warrant granting a stay of execution and/or a cert. grant. 

Lee was convicted of a double homicide. The jury (7-5) voted to apply a life sentence without parole. The judge overruled it and applied the death penalty.

If we set twenty years as "too long," the murders took place in 2003. OTOH, the Supreme Court has never accepted the "taking too long" approach.  

Here's a good summary. 

LeJames Norman

Norman and a second person (who is scheduled to die later this month) murdered three people in an attempted robbery twenty years ago. 

They were 19 and 20. The constitutional line has been set at 18. Age is still a mitigating factor. 

See also a citation of "chaotic, impoverished, and violent childhoods." Norman also showed remorse and testified against his co-defendant.* 

The final appeal argued that the prosecutor corruptly baited and switched. They used Norman to convict his co-defendant and then badmouthed him, sometimes with lies, during his own trial.

SCOTUS denied it without comment, which is normal enough, though it did take until late afternoon on the day of the execution. He was then executed. 

I'm sure the lawyers raised various other claims over the years. Overall, the best reason not to execute is that there are enough mitigating factors.

Two people under 21 committed a horrible crime and have been in prison longer than they were alive. Execution does not improve the public welfare.

==

* I will update this entry regarding that execution.

ETA: His final appeal alleged incompetent counsel (from a dentist who did lawyering on the side) and racial discrimination in jury selection. 

Denied on execution day without comment. My general rule is that I support some statement in these final appeals, even if the argument is weak.

The evidence appears clear. I would oppose his execution because of the mitigation of youth, maybe his childhood, and on basic principles. 

Jessica Kellgren-Fozard

 

JKF's video came into my YouTube feed. 

She has some interesting content, especially related to LGBTQ and disability issues. She is a lesbian mother and with various disabilities. She has a quirky voice though you can tell here (when she is tired) it is somewhat an affect. 

We can be overwhelmed with all of this content. But it also is amazing, huh? Should I check up more on stuff that would turn me off? Probably. You know, watch a bit of Fox News or a dubious podcaster. OTOH, there is so much other stuff. Oh well. 

SCOTUS Watch: Summer Order List

The Mets came back and played competitively against two good teams. A misplayed ball by Baty, who shouldn't have been playing the outfield, was a major reason why they didn't win both series. 

Order List

Oh. This is supposed to be about the Supreme Court. Well, the week was somewhat bland. 

The big news was that they granted cert in a case involving the Excessive Fines Clause. It is somewhat unclear why it did so now, but it isn't shocking or anything. They, for whatever reason, got it over with. 

The first scheduled summer order list was otherwise, as usual, basically a housekeeping matter. As noted here, did provide a way to finalize some things sooner rather than later. Nothing special, though.

The cert grant had a catchy hook about someone's plane being seized for illegally transporting a "six pack of beer" to a dry town in Alaska. That is more sloganeering than the full story. There was much more beer involved. 

OTOH, along with them taking the case when the lower court ruled against the defendant, it might have been a sign of what is to come. 

Kagan Spins 

Justice Kagan, during her joint testimony with Barrett, pushed against the "shadow docket" label since they have been doing a better job at transparency. 

It is a work in progress. It was as much spin as truth.

I re-read Steve Vladeck's book on the subject. He's writing a new one on judicial reform. A new edition of The Shadow Docket would have a new introduction, which would show that there are a lot of shadows remaining. Sorry, William Baude.* 

She also told the Ninth Circuit, where she's the circuit justice, that the Supreme Court is not a "rubber stamp" for Trump. Hey, look at the tariffs and birthright citizenship decisions!

Kagan has to work with these people. She is trying to win as much as she can. She can't say they are just a rubber stamp. They acted like one regularly, though. 

And Also ...

Thomas Goldstein, previously of SCOTUSBlog, has been sentenced. Sounds like a prime candidate for a Trump pardon. 

Upcoming

There are two more scheduled summer order lists. Two executions are likely next week. 

The Nixon Tapes case was handed down fifty-two years ago. Nixon resigned soon afterwards.

Wasn't that fun? 

---

Shadow Docket: Let's do a bit of a deep dive here on this issue. The "shadow docket" is, as Steve Vladeck notes in his book, a collection of things. 

It would include the choices made in the Order List, such as choosing this specific Eighth Amendment case over numerous others involving a person serving a long prison sentence. 

The shadow docket is not just the "emergency docket," though final death penalty appeals both fit that bill and underline that the term still fits. If anything, we have less transparency; Sotomayor, for instance, provides fewer statements in such cases.

Baude (and the new SCOTUSBlog) wants to use "the Interim Docket," which is bullshit. 

As Vladeck and others note regularly, the things decided there are effectively final. We saw that with a lot of the Trump administrative state destruction. 

Baude (see the link in the main discussion) is upset—is he afraid of Alito? -- that the term sounds "nefarious."  Also, we see what they do (often digging deep on the docket pages, not linked to the main orders, where their bare decisions are noted), so it is not really "hard to see."

Again, that is bullshit. We do not know a lot about their decision-making. They still largely work in the shadows, including decision-making (this is cited in the book) by not posting transcripts on the website.

Ginsburg did so. Kagan, after defending her colleagues for being more transparent, did not. 

ETA: I also was excited about Melissa Murray's new constitutional commentary. Eh.

The preface was a quick summary of its creation that seemed like forcing a bunch of stuff into a few pages. And doing so in a somewhat simplistic way.

The summary of each section is helpful, if often a tad too basic for someone who already has more than a passing understanding. It isn't meant to be comprehensive, but sometimes it seems a tad thin. 

It serves its function as a one-volume reference book for the average reader (though now and then tossing in words like "chattel" without comment). Sometimes, there are particularly interesting discussions, at times, with very up-to-date material. 

Murray provides a balanced view, including points of view that she personally doesn't support. At times, you do get the idea she isn't some originalist. 

The subtitle is "A Comprehensive and Annotated Guide for the Modern Reader." It does cover the whole document in annotated form and is written for the modern reader. It has Civics 101 potential.  

The book is formatted comfortably. OTOH, there are no charts, pictures, or anything of that sort. 

I enjoyed Linda Monk's books better. 

SCOTUS Watch: Summer Recess

The shitty trans athletes opinion shows the importance of voluntary trans protections, including those in New York.

The summer recess begins. The justices will have to address some things that pop up. They also have scheduled stuff:

For your planning purposes, summer order lists are scheduled to be issued on Monday, July 20; Monday, August 17; and Friday, September 4, 2026. Summer order lists usually consist of actions taken by the Court on motions in pending cases, petitions for rehearing, and other miscellaneous matters. Emergency orders, such as in applications for stays, will continue to be released as required.

Fix the Court suggests justices should circuit ride. I think it would be a decent idea if they spent more time in the lower courts. One idea: have each circuit justice preside over en banc hearings. 

The justices (minus two) might not be great at being district court judges. But I'm open to some thoughts.

We can spend the summer thinking about the Supreme Court. People think "court reform" means more justices. Let's think further. It's more than that. 

ETA: A pending case on the shadow docket involved a stay for reporter Catherine Herridge, who faced a daily $800 fine for refusing to name her sources in a Privacy Act lawsuit. 

Chris Geidner has the details. The facts go back at least to 2017, but now she has superlawyer Paul Clement on her side. No dice. Only Kavanaugh, without comment, would have granted the stay. 

(The lower panel had judges from the Carter, Biden, and Trump administrations, nomination-wise.) 

The final decision was handed down Thursday. It shows that we still will have some miscellaneous stuff popping up during the summer recess. 

Once upon a time, the Supreme Court was officially out of session. If it wanted to hear something as a group, they had to make a special effort. Individual justices handled things in the meanwhile.  

That is no longer the case. The individual justices still handle circuit matters. Nonetheless, the Court as a whole is still in session.  

SCOTUS Watch: Opinions/Orders

Orders

The Order List had some notable content, including multiple grants and no grant in the E.J. Carroll case. Maybe, just maybe, Trump will have to pay up for his sexual assault.

Gorsuch (with Alito and Thomas) returns to his concern about health workers not being able to obtain an exemption from vaccine mandates. NY, among other things, argues it is a bad "vehicle" for review. 

Thomas (with Gorsuch) wants to re-examine NYT v. Sullivan, citing original understanding (the case involves Alan Dershowitz suing CNN). If they want to quote original understanding, quite a few modern-day First Amendment cases should be decided the other way. A lot more limits were allowed back then. 

Sotomayor, for the liberals, dissented in a qualified immunity case involving a prisoner alleging mistreatment. There is a good originalist argument, ignored by conservative justices, that juries should have wide discretion to find government officials liable for wrongdoing. The Founding generation thought juries were the "palladium of liberty," even more than judges, who were creatures of the state.  

Each Trump nominee did not take part in a case without saying why. 

There should be another "clean-up" order, with perhaps more recusals, later in the week.

Opinions 

Barrett (with Roberts + the liberals) upholds a rule regarding mail-in ballots. Rick Hasen argues that "text,  history, and longstanding practice going back to the Civil War" back her up. A somewhat unhinged Alito opinion, however, still received four votes. 

Kagan continues the expansion of the reach of the Fourth Amendment to "geofence warrants," regarding the location of cellphone users. Alito, Thomas, and Barrett dissented. Gorsuch concurs but tosses in some cosplay about original understanding.

[Orin Kerr of Volokh Conspiracy is one resource for this topic.]

Roberts had the big two for the day involving agencies. The Federal Reserve, 5-4, can retain its "for cause" removal rules. The dissenters partially complain about the reach of the opinion, which broadly rules to bring clarity to the question.

(People are arguing that Roberts/Kavanaugh selectively exempt the Federal Reserve "to protect their stock portfolios." The special exemption is dubious. OTOH, various agencies regulate financial matters. They also affect stock portfolios.)

Not so for other agencies, overturning long practice (at least from the late 19th Century) and precedent (from the 1930s). The whole thing is bullshit, 6-3, Sotomayor (Kagan usually handles this issue) with the dissenting opinion for the liberals. 

(Her dissent, which she read from the bench, is very good. We should have audio/video.) 

The First Congress split various ways regarding the proper constitutional and policy rules for removal. It is a political question that should be left to congressional discretion. The dissent is correct that the majority forgets its "place." The voters need to secure a new Congress that reminds them. 

The 6-3 majority puts its thumb on one side. Perhaps, it is an ironic move to honor the 250th Anniversary of the Declaration of Independence (tyrannical king). 

Some more opinions tomorrow.

ETA: A discussion about them. 

SCOTUS Order List

The weekly Order List had some interesting bits.

The justices decided the appeals court wrongly decided on procedural grounds a lawsuit involving the free speech rights of immigration judges (not Art. III judges). Thomas (with Barrett) also disagreed on the merits. Free speech fails, for now. 

[The backstory is that the administrative process was broken because of Trump's obstructionism. Helped b by the court conservatives. The lower court tried a workaround and was called out.] 

The justices, following standard practices since at least the 1970s, rejected even accepting a "bill of complaint" involving a dispute among states. 

Thomas (with Alito) took their usual stance (reasonable) that they should at least examine the merits. They also added some right-wing comments on the merits of a dispute involving undocumented people having driver's licenses. 

Kavanaugh would have taken a dispute involving arbitration (New York Football Giants v. Brian Flores). He didn't comment on why. 

Alito and Thomas would have summarily reversed a lower court opinion involving excessive force and the Fourth Amendment. They cited a lower court opinion they "essentially" agreed with. 

Alito (no comment), Kagan, and Jackson (referencing ethical guidelines) did not take part in deciding three cases.  I continue to prefer the latter approach. 

Finally, in a "to be continued" sort of way, a lower court continued to reject a redistricting map, holding it is racially discriminatory. The Supreme Court, with the liberals dissenting, sent it back. 

It is likely to come back.  

==

Meanwhile, this is an interesting discussion of the Supreme Court's relation with social media, including suggestions on how it can dip its toes in.

ETA/Opinions: 

Barrett, for the conservatives, ruled against two "compassionate release" claims. Sotomayor (with Kagan) concurred on limited grounds in one case, dissented in the other. Jackson dissented in both.

Kavanaugh, it being one of his concerns, wrote a 5-4 opinion supporting a claim alleging racial discrimination in jury selection. Roberts joined, as did the liberals. Gorsuch dissented for the rest.

Gorsuch wrote a brief (less than eight pages) and unanimous arbitration opinion.  

SCOTUS Watch: Order List and Other News

Order List

Today's Order List was long enough that it suggested additional writings. It also had some notable developments, including a case that might further weaken Oregon v. Smith (general applicable laws are generally acceptable for religious liberty purposes).

One case on the "shadow docket":

By a 6–3 vote, and with no opinion, the Supreme Court throws out a lower court decision denying qualified immunity who killed an unarmed, mentally ill man by using "bodyweight force" to restrain him. All three liberals dissented.

A per curiam error corrects a lower court Fourth Amendment decision. Sotomayor, without comment, wouldn't provide relief. Jackson dissents with an opinion. 

Sotomayor, in a statement, discusses a dispute involving a child abduction measure. She agrees it is something they should eventually address. 

This specific lawsuit, however, is procedurally inappropriate to take. Nonetheless, she argues it was at least partially a self-inflicted wound by the Court.

Sotomayor, without comment, also noted she would have granted a case alleging evidence was not properly supplied in a criminal case. 

Justices Alito, Kavanaugh, and Barrett didn't take part in some decisions without saying why. Only Kagan and Jackson consistently provide their reasons. 

Shadow Docket Story

Steve Vladeck addresses a NYT article, with internal documents, discussing a major change in the shadow/emergency/interim docket in 2016. I agree with his overall analysis. The articles provide sunlight on issues of special concern. The actions are troubling.

Fix the Court suggests a proper response would be congressional legislation requiring transparency. If they abuse the process, jurisdiction stripping and budget cuts would be some possible consequences. 

(This was suggested in an email I received via a subscription.)

Or we can go the route of certain conservatives who think the leak is the biggest problem. The overall comments there, as I noted in a comment, ignore that internal deliberations are regularly leaked. Full documents are a step beyond that, but that might be appropriate (e.g., Pentagon Papers).

Thomas vs. Progressives

Prof. Segall focuses on his corruption -- Harlan Crow -- but also links to a wider discussion, how his usual "just so" historical account is garbled. This is who conservatives deem their model judge. 

Happy Birthday, Justice John Paul Stevens. And Adolf Hitler, apparently, going by Justice Thomas. 

Meanwhile ...

Some good news in a lower state court in Pennsylvania, which, on state constitutional grounds, struck down a Hyde Amendment. A concurring opinion also cited religious liberty. 

Some state courts went this route in the past. The principle should be applied nationwide. 

ETA: Two non-ideological opinions were handed down on Wednesday. Sotomayor had the unanimous opinion for one. Thomas had the other opinion, with a dissent by Alito, Roberts (relatively rare dissenter), and Kavanaugh. Sometimes, disagreements aren't always along the expected lines. But 6-3 is still a thing. 

SCOTUS Watch

Order List

The Supreme Court on Monday agreed to weigh in on a procedural question arising from a pregnancy discrimination case – specifically, whether a defendant can raise an affirmative defense (that is, a legal excuse or justification) later in the proceedings when it did not raise that defense in the answer to the plaintiff’s complaint.

After a brief order list, Sotomayor (with Jackson) spends some time explaining why the justices should have taken a criminal justice case. Finding troubling criminal justice cases that suggest the arbitrary nature of the criminal justice system is her thing.  

(The opening link provides more details) 

Opinions 

Happy Trans Visibility Day, which once was allegedly an anti-Easter plot or something, since it coincidentally overlapped that year. By chance, the justices decided the conversion therapy case.

Justice Gorsuch, having the opinion (which, like multiple other opinions he had in cultural war cases, was procedurally dubious), was a bad sign. Worse, only Jackson dissented. It was a good dissent. 

(Jackson used a Calvinball ruling -- see Breyer's angry dissent -- to her benefit. Okay. But realistically, that is how it is going to be. Selective application.) 

The conservatives upheld anti-trans care policies, even though such policies clearly have ideological motivations. This time, when trans people are protected, the regulation is suddenly thought control.

The law involves the regulation of people with a state license to practice medicine and only covers minors. So, it is not about the conversion therapy of adults or therapy by unlicensed people, including clergy. 

Under this logic, any medical treatment delivered through words rather than instruments could now carry First Amendment protection—a framework that could shield a doctor who encourages a patient to commit suicide, a dietician who tells an anorexic patient to eat less, or a therapist who deliberately steers a vulnerable client away from life-saving treatment. It could also extend well beyond medicine: a financial advisor who talks an elderly client into a bad investment is exercising speech-based professional conduct, as is a lawyer who gives harmful legal advice.

Not good. Kagan (with Sotomayor) concurred in full, citing an alleged limitation. But, as Jackson noted, the limitation in context is fictional. If they concurred strategically, Gorsuch's language is far from restrained.

The opinion says strict scrutiny is required. Some misleading coverage aside, the Court did not strike down the law. Colorado has a higher test to meet. 

But that is usually an uphill battle. Gorsuch's rhetoric, as SCOTUSBlog flags, is also not reassuring:

But the Supreme Court also strongly hinted that the ban would fail that test. In his 23-page opinion, Gorsuch stressed that in cases like Chiles’, Colorado’s ban “censors speech based on viewpoint.” Because the First Amendment “reflects … a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth,” Gorsuch continued, “any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments.”

The possible Robert Kennedy Jr.-ing of medical care is not ideal. I say that even if the opinion leaves open a way to uphold this law (strict scrutiny met) or to craft another policy that will protect children. 

Kagan, in the past, disliked "Lochner-ing" or the weaponizing of the First Amendment. Blah. 

Upcoming

The conference was on Thursday, given the Easter weekend. Monday will be an Order List. They then take a two-week break until April 17th. 

A media advisory regarding an oral argument that will likely have more demand for sitting flags the change at the top of Homeland Security. 

(ETA: The SCOTUS PIO released a statement on a news story involving Alito going to get checked out -- he is in his 70s, so this wasn't that notable on its own -- but didn't post it on the website. Yet again.)

Birthright Citizenship Trivia

Trump showed up for the birthright citizenship oral argument (left after the solicitor general was done), which would be the first time a sitting president did so. Notably, he picked this case to do so.

Talk about this being an "attempt to intimidate the justices" seems a tad overblown. Separation of powers? Eh. Members of Congress show up. 

Nixon and John Quincy Adams argued cases. Lincoln, too (a more forgotten detail). Not while in office, of course. Taft became Chief Justice. Ditto. 

John Marshall served as Secretary of State briefly after becoming Chief Justice. The Constitution does not -- unlike for members of Congress -- clearly ban that sort of thing. Justices also served in diplomatic roles. Robert Jackson was a prosecutor at Nuremberg.

SCOTUS Watch: Sotomayor Dissents a Lot Edition

Order List

There was a long order list today. This implied an unsigned opinion and/or dissent. We had both. 

A brief, unsigned opinion (per curiam) held that a lower court incorrectly didn't provide qualified immunity in an excessive force case. The justices argued that precedent did not settle the question. The liberals disagreed.

Qualified immunity is a major concern. Congress can and should address the situation. Too often, even that ability to try is removed. 

This also should be disfavored from a historical point of view. Things have changed over time, so I don't just rely on that. But some judges allegedly rely on that a lot. Allowing juries to decide would also be democratic. Now, judges too often close things off.

Sotomayor had all three dissents. She also argued for the liberals that the justices should have taken a case involving DNA evidence in a capital case. 

DNA evidence isn't magic. The government fears people will demand DNA evidence, here perhaps tainted in some fashion, and too much will be made out of it. But DNA evidence can also be powerful. A possibly tainted execution is also a tiebreaker. 

A third case involving denial of cert of a case involving alleged retaliation against an online journalist was a solo effort. That case had some support from conservatives below (Judge Willett was cited). Sotomayor provides a sympathetic reading. She also flags an apparent circuit split, making it a helpful "vehicle" for SCOTUS review.  

I'm not an expert. I don't do "deep dives" in these cases. For instance, in the capital cases, arguments are flagged that might not hold up. 

I cannot tell you if she is right that the circuit split is "cert worthy." It is important to note that the Supreme Court is more than a "court of error correction." A circuit split is a major reason for taking a case. 

Sometimes, there is a case that troubles one or more justices on the facts. They might flag that the case is not "cert worthy" while still noting their concern. They might also note the case raises issues that the Supreme Court should take up in a different case.

Meanwhile, Alito and Gorsuch did not take part in cases addressed in the Order List. As usual, we don't have any official explanation for why. Only Kagan and Jackson do that. The others should join them.

Oral Argument

Some of the conservatives were on vibes during the oral argument regarding the regulation of mail-in voting. This time, some Republican Southern state defending their discretion to regulate had a more sympathetic hearing from the liberal side. 

Rick Hasen has more.

Upcoming

We should have one or more opinions on Wednesday.

ETA: Sotomayor also appeared to be on the dissenting side during the oral argument in an asylum case. 

Gorsuch had his first opinion (only Alito dissented). Thomas wrote a copyright opinion (Sotomayor concurred in the result with Jackson). 

... and we will have another opinion day next week.

Think Big

A local paper published my letter to the editor:

Bronx: We need major changes, including term limits for Supreme Court justices and limits on presidential power. This might require changing the Constitution. But we should think big. We had no amendments for more than 30 years. It’s time. 

Really 50 years. The 27A is a joke. 

SCOTUS Watch

Order List

There was a seven-page Order List on Monday. The Court granted one case for review. SCOTUSBlog:

In Prutehi Guahan, the justices will weigh in on a dispute that arises from the U.S. Air Force’s disposal of unexploded ordnance, which it burns or blows up, on a base in Guam. 

So notable concern, but based on technical issues:

Four years ago, Prutehi Guahan, an environmental group, went to federal court to challenge the Air Force’s then-pending application to renew its permit, granted to it by Guam’s Environmental Protection Agency under a federal law called the Resource Conservation and Recovery Act, for its disposal of ordnance. The group contended that before the Air Force submitted its application, it should have prepared an environmental impact statement, as required by a different federal law, the National Environmental Policy Act.

Kavanaugh didn't take part in deciding a case without saying why. Jackson dissented from a refusal to a motion based on an alleged abuse of the in forma pauperis policy, following her recent practice of doing so for incarcerated persons. 

Gorsuch dissents from a denial of cert. As Mark Joseph Stern (Slate) summarizes on Bluesky (noting his position received four votes in the past):

Gorsuch dissents from the Supreme Court's refusal to consider whether a judge (not a jury) can extend a person's prison sentence by finding, by a preponderance of evidence (not beyond a reasonable doubt), that he violated supervised release.

Charles Burton Doesn't Die

Charles Burton has been in prison for over thirty years for his involvement in a robbery/homicide. Burton is in his mid-70s and in a wheelchair. A final SCOTUS appeal (involving procedural issues) was pending. 

“I firmly believe that the death penalty is just punishment for society’s most heinous offenders, as shown by the 25 executions I have presided over as governor,” Ivey said in a statement on Tuesday. “In order to ensure the continued viability of the death penalty, however, I also believe that a government’s most consequential action must be administered fairly and proportionately.

Alabama's strongly conservative governor commuted his sentence to life. That's the right move, except that he should really be paroled. He is ailing and was not directly involved in the actual killing. He has already served more than enough for his crime. 

Burton wasn't even there when it happened. It was a particularly poor usage of the "felony murder rule."  I appreciate her principled pro-capital punishment statement. Yes, I can grant that.

Alabama has not had a great run in recent years executing people, especially respecting the procedure, which led them to shift to nitrogen gas. Give credit where it's due and all that, all the same. 

The victim's daughter opposed the execution. That happens, though some seem to think honoring the victims is a one-way ratchet. Still, executions are in the name of the public, not private parties. 

The actual killer was sentenced to death. His sentence was overturned on appeal. The government eventually sentenced him to LWOP. He died in prison.  

Burton's lawyers removed their final appeal as moot.

Cedric Ricks Execution

Cedric Ricks was sentenced to death for the May 2013 killings of 30-year-old Roxann Sanchez [girlfriend] and her son Anthony Figueroa at their apartment in Bedford, a suburb in the Dallas-Fort Worth area. Sanchez’s 12-year-old son, Marcus Figueroa, was injured during the attack.

His attorneys had asked the Supreme Court to stay his execution, arguing that prosecutors violated Ricks’ constitutional rights by eliminating potential jurors on the basis of race. 

Previous appeals by Ricks that alleged ineffective counsel and called for the suppression of evidence in the case have been denied.

A horrible domestic violence crime like this warrants serious punishment. It is not, in my view, the "worst of the worst" type murder that warrants the death penalty.

(Texas has executed a handful of people annually in recent years. It is a form of lottery to execute him.) 

One more death will not stop the cycle of violence involved. I don't know if the due process concerns flagged tainted the conviction. 

They probably are not "cert worthy" since they are most likely singular, not the special class warranting SCOTUS review. The justices should still not have denied without comment. 

Justice Joe would provide a brief statement explaining my denial, noting that the taking of a life (especially given my overall constitutional concern about the death penalty) warrants a special exception to the usual "no comment" cert denial policy. 

He was executed, providing an apology in his final statement. Media coverage continues to provide the public with information about such final moments. 

The almost thirteen-year lag time would have been notable back in the day. It's relatively quick, FWIW, as things go now. COVID probably helped add a few more years that might not have been there otherwise. 

Upcoming 

I noticed that a media advisory I missed flagged that there will be limited seating for the upcoming birthright citizenship oral argument. 

There is an execution scheduled on the 17th. There might be a final order to dispose of like the ones above.

The next scheduled thing is a special event honoring Justice O'Connor (next Thursday) with a livestream. Various Trump officials will take part. 

The justices will officially return next Friday. They probably (there is a notice they "may") will hand down one or more opinions. They will also have a conference to consider pending matters. 

Other News 

Oyez did not have last term's opinion announcements. 

The delay led Fix the Court to reach out and obtain them (in a raw form that is harder to access and contains other audio mixed in). 

Oyez now has (some) of the opinion announcements up. They are easier to access, but not complete yet. 

Bush v. Gore 25th Anniversary: The Beat Goes On

And Also: Jim Ward, whom I know best from the Stephanie Miller Show, has been ill for years. He died this week. He had a long career in voice work.

SCOTUS Update

A look at the media advisories page on the SCOTUS website will show two recent additions about seating for January arguments. The cases involve transgender athletes and executive removal of officers in independent agencies. 

We already saw this week what is in the cards regarding the executive removal power. The only question is how far gone the opinion will be. How far gone it is from text, history, tradition, and overall good policy. 

The Supreme Court and transgender issues are also a matter of harm reduction. The results won't be good. But some good will come if there is some room left for opinions like this. 

Bush v. Gore 

Bush v. Gore was decided twenty-five years ago. I wrote about it years back. It was an act of judicial hubris. Things have not gone much better since then. 

A 5-4 act of judicial hubris. Yes. 

Four justices dissented. None of them, even if they might have felt something was wrong and would have offered up a compromise solution if they had their druthers, concurred in judgment. 

Anyway, the opinion was a symbol of an overheated view of the Supreme Court. A divided Congress and other factors likely meant Bush would have won in the end. But it would have seemed to be less of a stacked deck. And maybe each institution (Congress, Supreme Court, state government) would have operated a bit more like it should have. 

December 2000 also appears to be such a simpler time. Many thought a just result would be a Gore presidency, including when analyzing the likely choice of Florida voters. Partisan election officials (and the candidate's brother as governor) didn't help. 

Among other things.

This led to my first passionate excursion into online analysis of current events. I strongly opposed the Bush Administation. It seems almost a golden age (not quite, I know) next to now. 

SCOTUSblog

Yes, the new ownership of SCOTUSblog brings with it some unfortunate stuff. The analysis has a more conservative spin, including talk of an "interim docket." You can check the link for more.

I would be careful not to just throw the website into the trash pile as a useless entity. The continuing coverage from Amy Howe and others, including Relist Watch, does not seem to be notably different.

Maybe people can point to concerns there, too. Nonetheless, along with useful docket pages and other material, the website is still a good resource. 

Upcoming 

No late Friday SCOTUS news (as of 8:30 PM!). There will be an Order List on Monday. Two executions are also scheduled. There might be some SCOTUS-related news there, mostly likely a pro forma denial. 

A Few More NYC Election Tidbits (SCOTUS Watch)

This week's SCOTUS summary is found here.

We had a significant increase in turnout, with as many voters as there were since 1969. The increase is relative, with only around 40% taking part. The Bronx had a paltry 28%. My city council district changed hands. What small fraction decided the result? 

Voting is a civic obligation. Many people think it is pointless to vote, including if they don't like the candidates. Republicans often felt they were wasting their vote, helping someone they strongly opposed in the process.  Others also did not like Mamdani. 

It is still important for people to vote. There were also other races and six ballot measures. The two links provide some voting analysis. For instance, the black vote significantly shifted from Cuomo in the primary to Mamdani in the general. Recall Mayor Eric Adams (black) was not in the primary. 

One analysis argues that Mamdani's leading reform proposals are cheap as a segment of the overall budget. The analysis provides some interesting information, including that free buses seem less extreme when 48% already do not pay for bus fares.

(That seems high, but there was a study comparing riders to fares obtained. I don't take buses too much, but have seen evidence of the overall practice.) 

Meanwhile, NY SNAP funding will continue even in the face of the government shutdown and Trump shenanigans. I expected state funding would help.

[ETA: After last night's SCOTUS order, the SNAP benefits are more up in the air. The linked article was updated since I first posted this.]

==

This entry has links to three online newspapers covering NYC and NY state news, as well as one to an NYT article. The (free) NY-specific online papers have provided helpful local coverage.  

Paywalls are annoying but fair since media providers need to be paid. Archived content can help avoid it. Also, you can fiddle around with the browser, including cookie settings, to avoid some others. 

Trump Odds and Ends

The Trump Justice Department regularly lied to and didn't follow the orders of courts. 

(This should matter, right?) 

Prince (for now) Andrew is having his royal title (basically symbolic) stripped because of his involvement with Jeffrey Epstein. 

OTOH, Mike Johnson is keeping the House of Representatives in session and not swearing in a new Democratic representative, partially to prevent a measure from releasing the Epstein papers. 

Even in the friendliest polls, Cuomo has the smallest enthusiastic base of any candidate. Curtis Sliwa has more people excited to vote for him. Cuomo’s only shot is patching together enough voters who fear or despise his opponent enough to accept him by default. He has nothing to offer for the future, just a cynical warning that we cannot trust it to someone else.

But that same need to control has brought him here: stuck in a race he’s unlikely to win, for a job he never really wanted. And that’s because Cuomo can see everyone’s faults but his own. He doesn’t show humility. He rarely apologizes. And if you never admit mistakes, you never learn from them. You never evolve.

Okay. Let's move on from this ugliness.

The Supreme Court has found another possible "this goes too far" bit regarding Trump sending troops into our cities. At least, eventually. 

Don't worry. As a whole, the Supreme Court (6-3 much of the time) has supported Trump while expanding its power, including against the lower courts. 

Time for court reform.

ETA: Some SCOTUS addendum stuff.

A media advisory dropped regarding seating for a Trump firing case, underscoring the expectation it will be a well-watched oral argument. Press seating will be by assignment only. All cases aren't equal.

It could take years to have a bound copy of a term's opinions. Now, they start providing bound pages during the term. The final opinions for the 2024 Term are now available with the page numbers. 

Oral arguments begin again on Monday. 

Roy Lee Ward Execution

And Also: I discuss Justice Kennedy (who has a new book) and related subjects here.

Ward brutally murdered Payne in her Dale, Indiana, home after knocking on her door and pretending he was looking for a lost dog. His attorneys spent the next two decades angling for new trials and appeals until his execution was finally set for Oct. 10.

This sums things up. 

But those drugs came at a high cost, more than $1 million for four doses. In June, Braun said the state wouldn't immediately buy more, raising questions about if Indiana would consider a new execution method. The first-term Republican cited the high cost and short shelf life.

The final appeal concerns the drugs used for the execution. The state, at significant cost, resumed executions last year after a 15-year hiatus. Obtaining drugs and ensuring they are of adequate quality is a continuing problem, as discussed by Professor Lain in her book. Lethal injection continues to be a dubious method of execution for various reasons. 

States also do not provide transparency, including “whether they are expired, how they are transported and stored, or their potency and sterility.” Furthermore, there was evidence that a recent execution was botched. 

Such claims, sometimes for procedural reasons, have not received much success. The Supreme Court overall has not been sympathetic. He also raised other claims over the years, including arguments that his autism and learning disability mitigated his crimes. 

I think that over twenty years raises the unconstitutional delay concerns cited by Breyer and others. The delays are significantly a result of criminal appeals. But appeals ensure justice. And, at least some of his claims did have some merit.  

Overall, he committed a horrible crime. A long prison sentence serves both penal and public safety purposes. I understand many won't be concerned that he was executed. However, it was neither necessary nor proper.

The article notes that his lawyers dropped final appeals after negotiating an agreement regarding the execution procedures. The media were not present during the execution. This is troubling.

Meanwhile, others campaigned for the end of capital punishment. Busy week ahead. 

Florida Executes Victor Tony Jones

Jones was sentenced to death for murdering his employers, 66-year-old Matilda Nestor and 67-year-old Jacob Nestor, later admitting he did it because they owed him money. Jacob shot Jones before he died. The police found Jones wounded at the scene. 

This took place thirty-five years ago. Justice Breyer (joined by Ginsburg, also citing earlier dissents by Stevens), whom I repeatedly cite, argued:

These lengthy delays create two special constitutional difficulties. First, a lengthy delay in and of itself is especially cruel because it subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement. Second, lengthy delay undermines the death penalty’s penological rationale. [cleaned up]

His lawyers unsuccessfully raised various claims, including alleged intellectual disability. Mitigation evidence was cited in the final appeal (see below). 

They also attempted to use the abuse Jones suffered as a child at a notorious state reform school. At least 34 people who went to the school later were sentenced to death. Jones received a fiscal settlement earlier this year. The recent settlement arguably was new evidence (often these claims are procedurally barred as coming too late), but only one judge accepted that. 

My bottom line is that a long prison sentence was more appropriate. And, even if not, they waited too long. Yes, I am an "abolitionist," but even before that, only a tiny subset of "worst of the worst" situations should warrant an execution. The numbers from that study, however, are also rather glaring. 

The Supreme Court, mid-afternoon (a bit late), rejected a final appeal without comment. One claim was a technical procedural matter. The other somewhat emotionally asked:

Has the Florida Supreme Court repeatedly failed to take into account the diverse frailties of human kind in capital sentencing by consistently denigrating the force of proffered mitigating evidence. 

Maybe so, but it's academic now. 

There are eight executions, in seven states, scheduled in October. Five in four days. The last person has a suitable name for this whole process: "Grim."

95 House Dems, Including Trans Rep McBride, Vote To "Honor The Legacy" Of Charlie Kirk

The criticism of Kirk, however, has been met by an equally aggressive counteroffensive on the right: journalists and other citizens have lost jobs for refusing to endorse the sanitized narrative of his life, and even Jimmy Kimmel was fired after daring to mention Kirk and Republicans in anything other than a positive light.

Erin Reed reports on a House resolution about "a courageous American patriot" who is a "fierce defender of the American founding and its timeless principles of life, liberty, limited government, and individual responsibility." He did so with "honor, courage, and respect" and was a "model" for Americans. This is bullshit. 

Erin Reed notes:

“Charlie Kirk was a fierce defender of the American founding and its timeless principles of life, liberty, limited government, and individual responsibility,” the resolution reads—conveniently eliding his relentless campaign against the liberties of LGBTQ+ people. It praises him for engaging in “respectful, civil discourse,” even though he once said Black pilots made him wonder if they were “qualified” and called transgender people an “abomination unto God.” And it claims he “worked tirelessly to promote unity,” despite his calls to execute President Biden for treason.

Ninety-five Democrats voted for this claptrap, while thirty-eight voted present, and twenty-two didn't vote. Only 58 simply voted "no."  

215 Republicans voted "yea" with four not voting. It was clearly an important vote for them. 

Many noted, in the aftermath of McBride’s vote, that Kirk had personally attacked her—calling her a “man” and claiming she wanted “to force all of society to change its laws to indulge [her] sexual fetish,” hardly the “respectful and civil discourse” the resolution insisted he embodied.

Rep. Sarah McBride, the only openly trans member of Congress, who Kirk once called a man, voted yes. I understand her carefully threading the needle, including as the sole representative of the state of Delaware. But really? 

The resolution has various mundane things against violence and so forth, but it also glorifies Charlie Kirk with comments such as:

Honors the life, leadership, and legacy of Charlie Kirk, whose steadfast dedication to the Constitution, civil discourse, and Biblical truth inspired a generation to cherish and defend the blessings of liberty.

I don't think it is appropriate for Democrats to sign on to this resolution. It perpetuates the glorification of Charlie Kirk, which is a lie. 

One really disappointing "yea" vote here is Rep. Raskin, usually a sane, sensible person who doesn't hold back, his opposition to injustice. What the hell are you doing? What is his excuse?

My representative, who is a strong Trump opponent but has his moments of being a tool, didn't vote. Brave man! The House Minority Leader, who doesn't want to endorse Zohran Mamdani for mayor of New York City, voted yes. Fuck you. I'm so tired of that guy.

The Republicans are making this guy a martyr. This resolution was passed after Jimmy Kimmel was silenced for criticizing the response to his death, particularly Trump.  Yes, the FCC shit got even Ted Cruz using words like "mafioso." Not that he would actually do anything serious about it.   

Cruz et. al. cheered on silencing people for criticism. This is in the spirit of the "model" the people's House supported. A simple resolution is mourning of his death, and opposing politically related violence would be understandable. Selective, for sure, but understandable. This resolution glorified him.  

What message is the Democrats sending by not having the guts (except for a quarter of them) to simply vote against this thing? 45% voted for it. Do better. 

ETA: NYT has an interview with Charlie Kirk's widow entitled "For Erika Kirk, a Husband’s Life Cut Short by Violence He Seemed to Foresee." 

More promotion of the idea that Kirk is a martyr,  almost a Jesus-like figure. The subtitle notes "she sees divine work in his death." Beyond parody. 

It is unsuprising that people are trying to provide some divine meaning to his death. People do that. The usage of such headlines, however, adds to the glorification. OTOH, guess NYT won't get cancelled. 

I don't recall the murder of the Minnesota legislator and her husband (and their dog, plus the shooting of two others) getting this much coverage. 

SCOTUS Watch

Orders

We already discussed the order paving the way to another execution. It was handed down without comment. The other order did have an explanation, after Justice Sotomayor provided a (temporary) administrative stay:

The Court has already granted certiorari in this case on the sovereign immunity issue decided below, and the pending damages trial before the Supreme Court of the State of New York would be barred if New Jersey Transit Corporation were entitled to sovereign immunity from suit. Respondents, on the other hand, identify no tangible irreparable harm they would face if the trial were delayed until after this Court decides the pending case.

Steve Vladeck noted earlier that there was a good argument to reject the request. So, arguably, this say-so analysis is somewhat lacking. 

OTOH, for them, it is a descriptive discussion for the shadow docket. Baby steps. On Bluesky today, he added this Calvinball-esque comment:

It continues to be ... revealing ... how much the Court's orders on emergency applications in *non*-Trump-related cases are playing up the balance of the equities (and the presence/absence of irreparable harm) versus the Court's orders in Trump cases, which ... aren't.

Odds and Ends

I have repeatedly noted that the "Online Sources Cited in Opinions" (saves pages to avoid dead links) for 2024 was empty. It continued to be empty into the summer. It is now filled. 

There are two media advisories dated September 8th regarding seating in cases of particular interest.  These are specially provided when there is a concern about seating. One case is a major Voting Rights Case, and the other involves a ban on licensed conversion therapy for minors. 

There is also an updated November argument schedule, which will include the Trump tariff cases. The advocates expecting to argue a death penalty case in November are now in a wait-and-see mode. (They were displaced to fit in the tariff case.)  

Judicial Security Becomes Politicized

Lower court judges have had to deal with a lot more than strong dissent from Trump on down. They have received harassing phone calls, swatting attacks, and, in some cases, had serious threats of violence. A judge’s child was murdered. 

So, more security funds are a good thing. But so far, only justices have been given some in the new budget bill. If you read between the lines, the House is getting its marching orders from the Trump Administration, whose attacks on lower court judges who have repeatedly voted against its lawlessness are well known.

Hopefully, this will be addressed by the time the final bill is voted upon.  

More on Charlie Kirk

We should be careful when interpreting current events. No, those markings on the bullet castings were not some sort of trans thing. Wall St. Journal reporting, notwithstanding.

If I don't see multiple ~media reporters~ columns about the extraordinarily irresponsible Wall Street Journal report from yesterday morning — and their extensive promotion of that inflammatory report — you all should just pack up and go home.

Correct, Chris Geidner. The NYT did have this:

How Law Enforcement Got the Man Suspected of Killing Charlie Kirk 

F.B.I. leaders touted the immense federal deployment assigned to find the assassin. But their big break came with a single tip — from the suspect’s own family.

People have ridiculed how the FBI, whose hiring/firing tactics of late are so bad that they are subject to a lawsuit, handled things after the shooting. The purge, including "DEI hires," has struck there, too. Since DEI is a good thing, that is a problem. 

I would not have judged them too harshly if it took more than a day or two to catch the shooter. These things can take time. Still, they open themselves up to criticism in multiple ways. 

The right, from Trump on down, was in high dudgeon that the left incited murder. Every allegation is a confession. Charlie Kirk regularly said incendiary things. If you complain, they will taunt you for being triggered. Or claim innocence.

It turns out the shooter is not the stereotypical left-winger. To quote Heather Cox Richardson:

Robinson had recently had a conversation with a family member about why they didn’t like Kirk’s viewpoints. Robinson appears to have admired the “Groypers,” led by Nick Fuentes, who complain that more mainstream organizations like Kirk’s Turning Point USA are not “pro-white” enough and have publicly harassed Kirk in the past.

Now, Rep. Mace is talking about forgiveness. Trump, of course, was never really too concerned. I suppose the death of Ivanka or Barron might warrant some. Why would Charlie Kirk? He moved on to trucks when asked about how he was feeling:

I think very good. And by the way, right there, you see all the trucks, they just started construction of the new ballroom for the White House, which is something they've been trying to get, as you know, for about 150 years, and it's going to be a beauty. It’ll be an absolutely magnificent structure. And I just see all the trucks. We just started so it'll get done very nicely and it'll be one of the best anywhere in the world, actually. Thank you very much.

Imagine if Biden rambled on about trucks after being asked about the ... well, we know. Like the weeks of concern about his bad death and crickets after Harris crushed Trump, who had a horrible debate that was ridiculed while it took place. 

One person said we should just forget Charlie Kirk, providing a vignette from Ancient Rome. Kirk is someone we should only remember if we want a really bad example. He wasn't someone I thought about too much before. Many have never heard of him. 

Martyrdom talk or references by liberals honoring him as a great debater or something are bad. Just forgetting him is probably asking a lot. He has been too successful for the right to just forget him. 

Many of these things anger me. The sloppy media reporting, hypocrisy, Trump horribleness, and so on. 

For now, we wait and see what happens in this case specifically. And we try our best to do right.