SCOTUS Watch: Orders

The Order List was longer than usual. So, we had additional writings, particularly an apparent 6-3 per curiam, summarized by Mark Joseph Stern on Bluesky this way:

By a 6–3 vote, the Supreme Court reverses a decision in favor of Pedro Hernandez, a mentally impaired man who was pressured into an allegedly false confession of murder through these👇unconstitutional tactics. The supermajority says he did not face a deprivation of "clearly established" rights.

The liberals wouldn't have taken the case. It amounts to an "error correction" of an allegedly misapplication of the rules for federal habeas appeals. Some local coverage. 

Alito and Thomas would have taken or decided some crime-related cases (one involving the use of race) the other way. 

Jackson followed her practice regarding not rejecting certain appeals by incarcerated people allegedly abusing the pauper's petition rules. 

Sotomayor, for the liberals, would have taken a case involving a claim of intellectual disability in a capital case. Texas supported the appeal, but the Texas courts (this happened before) blocked it from happening below. Four justices earlier would have tightened the rules in such cases, so this isn't surprising. 

The Supreme Court granted another so-called "Bivens" case, involving a remedy for constitutionally based abuses. The claim won below, and Bivens has been much disfavored. So, it doesn't bode well. Congress can address the situation. 

We will have  (signed) opinions on Tuesday and Thursday. There is likely to be at least one more opinion day. Toss is a scheduled execution. 

SCOTUS Order List

That's fairly long for the average order list. And, yes, there was a per curiam.

SCOTUS (with only Jackson publicly dissenting without comment) flagged that it thinks a lower court misapplied a limit on federal habeas. The opinion (this is relatively rare) includes photographs.

The case is, in effect, a matter of error correction to flag that the lower court did not appropriately apply a federal limit on habeas. The justices re-parsed the evidence to determine this. Hmm. 

The Court also granted cert in a case where the petition uses a scene from the film Hoosiers to make a point. The case involves the Video Privacy Protection Act. The next scheduled event is February 20th. 

SCOTUSBlog on Bluesky: "The court has agreed to weigh in on the interpretation of a federal law, enacted in the wake of Judge Robert Bork’s unsuccessful Supreme Court confirmation hearings, intended to protect videotape rental histories from public disclosure." The case involves Facebook. 

I continue to wish the Order List provided links to the docket pages of the cases covered. Instead, the interested person needs to look up each one individually. It's not really too much to ask in 2026.

SCOTUS Watch: First Opinion

 I covered the first opinion of the term and other matters here.

No Habeas For Chimps

An intermediate Michigan court unsurprisingly rejected a habeas appeal for chimpanzees. 

The claim was raised to obtain liberty for some chimpanzees allegedly being mistreated in a zoo. There are rules in place for the mistreatment of animals. Habeas protections provide a special level of protection against unjust detention. 

As part of the same framework, the common law treated animals as objects of property. Blackstone defined property as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” 

It is offensive that all animals, even chimpanzees, are treated as merely "property." Again, there are cruelty to animals laws that suggest they are at least a special species (ha) of property. This traditional despotic power is tempered somewhat in the modern day. 

I talked about this issue a few years ago when the highest court in New York rejected a similar claim as applied to an elephant. The Michigan Court of Appeals likewise worried about line-drawing for "intelligent" animals. 

Unlike the human species, which has the capacity to accept social responsibilities and legal duties, nonhuman animals cannot—neither individually nor collectively—be held legally accountable or required to fulfill obligations imposed by law.

And, noted non-humans are different in kind from women and slaves of all sexes (both are "persons" according to the Constitution). Such language can be pushed back upon. Babies are "persons" too, after all. But, generally speaking, yes, not the same, exactly.

[ETA: I am not sure how literally true the "legally accountable" bit is. Put aside that three-year-old human children are not held legally accountable. 

Dogs can be killed -- use the desired euphemism -- for vicious behavior. Non-human animals can be punished. They can be taught, like humans, to fulfill certain obligations and social responsibilities.

In return, we can have an obligation to treat them well. Before a dog is killed, there should be some due process. And, not just to protect an owner's "property." In medieval Europe, this was taken quite literally, with lawyers appointed and everything.]

Non-human animals, we can debate the line-drawing,* should not be treated as mere property. They have the intelligence, the ability to feel pain, and other aspects that warrant protection. Humans also have personal interests that warrant the protection of other animals. 

I don't know if a traditional habeas judicial proceeding is the best avenue to protect their interests. Yes, I would couch them in terms of "rights." But they should be protected. As with minors and others unable to adequately and independently defend their interests, special advocates can be appointed for this purpose. 

The legislature or the people, by constitutional change (some foreign nations protect animals in their organic law), would be the appropriate place to secure this protection. I hold to my earlier stance.

The current law warrants holding against the challengers. OTOH, two judges in NY did dissent. 

===

* Chimps are a somewhat easy case since higher primates are so closely related, including intellectually, to humans. Nonetheless, the earlier case involved elephants. I noted there that even birds, at least parrots, have shown special intelligence. 

Vegans and vegetarians draw their line in various places. Opponents will have a field day. One recent comment referenced jellyfish. Yeah. While you eat your veal, make a big deal about worms and such.

The line is going to be, at some point, somewhat arbitrary. Nonethless, like all "slippery slopes," some lines are reasonable. The general public does not think that cruelty to animals laws are stupid.

This remains so even if they step on bugs. 

SCOTUS Watch

Order Watch

Alito recently put an "administrative stay" on a bankruptcy case. That is, he held it up temporarily to examine it. He removed it this week.

There were Hail Mary death penalty-related orders in the usual "no dice, no comment" -- which I dealt separately in the execution entry.  

Order List on Monday. 

Opinion Announcements

Some reporters, after Roberts did not respond, posted their letter requesting live streaming of opinion announcements. I have long held that SCOTUS should provide them. It's not asking for much. 

One comment on the letter: the justices don't let the opinions "speak for themselves." They have the opinion announcements in open court. They think they have some value. There is no good reason for the Court not to include them.

Opinions 

Thursday brought more opinions. SCOTUSblog has more coverage, but I will briefly summarize. 

There were six opinions with only two dissents (both solos by Gorsuch). They are continuing to clear the brush. Yes, many of these cases are mundane.

Jackson wrote an opinion explaining how federal law in such and such a case makes it difficult to raise a second habeas claim. 

Barrett explained how a taxpayer's right to appeal was blocked. Gorsuch, dissenting, appeals to the rights of the ordinary person. 

OTOH, litigants had better luck in lawsuits arising from a prison dispute (rare Jackson/Thomas concurrence), disability claims (Roberts had a nod to the needs of parents and disabled children, perhaps with a silent nod to Barrett, who has one), and a family whose home was wrongly raided. Gorsuch would dismiss the first case as improvidently granted. 

Thomas has another unanimous case in a dull-sounding matter (often his métier when writing for the Court) about whether a law providing combat-related special compensation to qualifying veterans confers authority to settle such claims. He concurred in the disability case (with Kavanaugh) to do what he often does when writing separately -- going for bigger game. 

Juneteenth is a federal holiday, so the next conference will be next Wednesday. Expect opinions then, too. There are twenty-one cases left.  So, one opinion day for the next two weeks won't cut it. 

I expect about four.

SCOTUS Watch: First Bunch of June Opinions

The Supreme Court had around thirty opinions remaining this week (they were about halfway through with a month left, an unnecessary backloading). 

They handled six with limited dissent. As usual, should have livestreamed the (relatively boring this time) opinion announcements. 

Liberal Strategy?

The three liberals somewhat ironically had "conservativish" opinion results in cases involving discrimination, gun litigation, and religious exemptions. The results were not really surprising. The unanimity might have been somewhat.

Multiple liberals argued that the liberals were able to limit the damage. Also, the unanimity is far from "obvious," given that some courts had alternative viewpoints. It is also a matter of docket selection. 

Liz Sepper, an expert in establishment law, strongly disagreed that Sotomayor's opinion helped much. Sepper is very worried about its possible reach. She did think Jackson tried to cabin it. 

There is a continuing dispute about the value of liberals compromising. Just what are they getting in return? How that applies here is unclear. 

Overall, Roberts used his assignment power quite well here. We will see long-term if it has changed much. 

Mexican Gun Dispute

Michael Dorf was sympathetic about the lawsuit by Mexico involving illegal guns that arose from the United States. He is not a fan of the congressional statute that limits gun lawsuits. 

Nonetheless, as Kagan (and Jackson in a separate opinion) explain, with the law in place, their legal argument was a stretch. Jackson uses her concurrence to reaffirm her "we should follow legislative text and function" message. Thomas briefly concurs, too. 

Discrimination Lawsuits

Jackson, via a short opinion, dealt with a lower court that put a questionable limit on discrimination lawsuits. The court of appeals questioned a claim by a heterosexual woman that she was being targeted for her sexual orientation. 

The appellate court was not alone in applying its rule. A unanimous Supreme Court ruling doesn't mean it is correct. Still, bottom line, the opinion can be interpreted to have a general anti-discriminatory message. 

Thomas with Gorsuch aimed for a bigger game. He also challenged "atextual legal rules and frameworks," which is a tad hypocritical coming from him. Both regularly apply text with certain quite debatable background assumptions. 

Some people flagged the opinion cited Bostock ("sex" includes sex orientation regarding a federal statute). The conservatives didn't say anything in reply! I think they might have read too much into two mundane-looking citations. 

Religious Exemptions 

Sotomayor handled a dispute involving an exemption to unemployment taxes for a Catholic charity. She explained the classification was a violation of both aspects of religious liberty (for the liberals, the Establishment Clause is still a thing). 

Some worried about the possible reach of the principle. As noted above, some are quite upset at the opinion. Jackson's concurrence argued that a related congressional exemption was narrow in scope. 

[Typo Watch: There is already a correction. Also, there have been online sources cited in opinions this term. The page, however, is blank.]

Other Issues 

Alito dealt with a personal jurisdiction dispute. Thomas handled a case about amending a complaint (involving a lawsuit against Hamas). Jackson partially dissented on that one. Jackson continued to make her opinions known in various separate opinions.

And, as Kimberly Robinson (Bloomberg) noted on her Bluesky account, SCOTUS "rejected Labcorp’s bid to limit who can join a class action that accused it of discriminating against blind people with its self-service check-in kiosks." Kavanaugh dissented from the DIG (dismissed as improvidently granted). SCOTUS coverage foreshadowed that result. 

There will be more opinions next Thursday.

Orders

Peter Mosoko Ikome requested a stay. For some reason, there are no links to the briefing. It was ultimately held to be moot. The case somehow involves a longstanding immigration case. 

Steve Vladeck references some mistaken emails SCOTUS sent about the Order List on Friday. On Thursday, on the website calendar, it referenced the usual Monday scheduling at 9:30 A.M.

It has now decided to post the Order List today. Amy Howe says it was a software glitch. Shrugs. 

(Vladeck's Monday round-up explains that the Public Information Office supplied a statement about the glitch. They, again, didn't put it on their website. This just annoys me.)  

They granted a few cases. Barrett recused without saying why. Alito (with Thomas) dropped a statement saying they think a habeas case was wrongly decided, but since it has no real effect, they are okay with not granting cert. 

These Friday afternoon shenanigans are why these things should not be posted too early. 

Trump Enabling Watch 

In two separate emergency rulings, the conservatives lifted a block on Department of Government Efficiency (DOGE) personnel accessing sensitive Social Security systems and wiped a ruling forcing DOGE to turn over discovery in a records lawsuit.

The two unsigned orders provide thin and thinner reasoning. The liberals would deny the applications. Jackson (with Sotomayor) explained why in one of the cases. More Friday afternoon follies. 

And, guess what? Kilmar Abrego García is coming back. They think they have found something to prove he is really a big, dangerous criminal.  

Try and try again, I guess. 

ETA: I find the low bar expressed here, by the person who put forth a strong 14A, sec. 3 argument that was actively ignored, appalling. How many constitutional wrongs have to take place to warrant concern in your Ivy Tower? All the others still not back need not. We can have a symbolic CYA or two, and it will be okay.

Symbols of Wider Trump Wrongs

Senator Jon Ossoff, who is up for a quite competitive seat next year, "strongly" agrees that Trump should be impeached:

“There is no doubt that this president’s conduct has already exceeded any prior standard for impeachment by the United States House of Representatives,” Ossoff told the audience at a town hall in Cobb County, adding later that there is “no question” a number of Trump’s actions have risen to the level of an impeachable offense.

The Administration's wrongdoing is akin to a powerful industrial firehose spraying so much water that we have a hard time keeping track. We keep on reading about the latest thing. It can be overwhelming. 

There is a value in symbolic case studies, which provide clarity and allow a special amount of attention. Kilmar Abrego Garcia is an example. He has a powerful story. 

The government clearly made a mistake. It is being reckless and criminal. Yes. They are openly ignoring protected rights. That is not legal. Impeachment is supposedly an overall safeguard. It is a paper tiger in many ways, even if Democrats controlled the House. Even more so now. 

(Impeachment retains some value. The two impeachments of Trump had value. They weren't enough and 14A, sec. 3 was but one additional tool that should have been used.)

So, other methods are used. A Democratic senator went down to visit Garcia. It helped to lead to his being removed from a cruel prison. There have been some implications that there was a positive development in his legal case. And, yes, the courts provide another avenue to fight the Administration.  

[The picture is from the linked story, Photojournalist witnesses Venezuelan migrants' arrival in El Salvador: '"They had no idea what was coming"]

The term "synecdoche" is a figure of speech where the part represents the whole. Garcia is a type of synecdoche of the Administration's detention and expulsion program. 

Michelle Goldberg reminds us about someone else:

Andry Hernández Romero, a gay makeup artist from Venezuela, sent to rot in El Salvador because the Trump administration claimed his tattoos link him to the Venezuelan gang Tren de Aragua. 

There are many, more more, the stereotypical "thugs" tossed about repeatedly, not reflected in the people picked up:

Bloomberg reported, around 90 percent of the migrants sent to CECOT have no criminal records aside from immigration or traffic violations.

The usage of the Alien Enemies Act is patently illegal since we are not at war with the people involved, nor are any other requirements for usage met. One thing that stood out for me, however, was a passage about "time allowed to settle affairs and depart" for "not chargeable with actual hostility, or other crime against the public safety." 

The Administration, however, aims to use speed, in part to avoid court review. The Supreme Court has long recognized that even "illegal aliens" have some due process rights:

It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.

(Citing cases back to 1903. Drawing a line between those here and those who are attempting to enter.) 

[Another symbolic case involved a person supporting autism. OTOH, RFK Jr. is not a big fan of autistic children.]

Aaron Reichlin-Melnick, Senior Fellow at the American Immigration Council, on Bluesky flagged one technique:

There are a lot of cases where ICE has been accused of pressuring parents to agree to be deported alongside their children without giving them anywhere near enough time to make that decision or consult with other family members first. This seems like exactly one of those cases.

The case was another symbol, involving a two-year-old American citizen. When a Trump-appointed judge, who uses "Gulf of America," is concerned, it's a red flag.  

Again, there are many other cases involving children, citizens, and noncitizens. One article:

Trump Has Now Deported Multiple U.S. Citizen Children With Cancer

Appalling but, by now, par for the course. We knew Trump 2.0 would be horrible. He's just going a bit faster than expected. This is why people are fighting. 

To toss it in, there are also lots of symbols of the corruption of this Administration, including numerous corrupt pardons. The article links to a more general story.*

The latest:

President Trump on Wednesday pardoned a Florida health care executive whose mother played a role in trying to expose the contents of Ashley Biden’s diary.

The pardon of the executive, Paul Walczak, was signed privately and posted on the Justice Department’s website on Friday. It came less than two weeks after he was sentenced to 18 months in prison and ordered to pay nearly $4.4 million in restitution, for tax crimes that prosecutors said were used to finance a lavish lifestyle, including the purchase of a yacht.

His mother was a significant Trump donor. Came the same day for another pardon. Michele Fiore was convicted in connection with a fraud connected to collecting "donations to build a statue memorializing a police officer who had been killed while on duty." The level of corruption is so blatant that it is laughable, in a dark humor sort of way.

Again, people can't keep up with all of these things. I respect those who manage to keep track of different categories, perhaps with the help of color-coordinated spreadsheets.

Such is the value of symbols. 

Meanwhile, Senator Ossoff is right. Trump deserves to be impeached. Republicans have the power to stop him. They refuse to do so, even while a few make some noises about how he goes too far. The party jumped the shark. 

==

* The NYT cannot help a "both sides" in which Biden is criticized for not using normal pardon procedures, along with Trump. This again is applied in a bullshit fashion:

Both Mr. Trump and former President Joseph R. Biden Jr. were criticized for ignoring the screening and guidelines of the Justice Department’s Office of the Pardon Attorney in their clemency grants. Clemency experts objected to Mr. Biden’s far-reaching pardons of his son Hunter and other family members, and to Mr. Trump’s sweeping grant of clemency to all of the nearly 1,600 people charged in connection with the Jan. 6 attack on the Capitol.

Yeah, not quite the same, including Trump's ongoing usage of the pardon power to help his cronies. Biden, for good reason, at the end of his term, provides pardons to a few family members to protect them. Trump does a helluva lot more, and it's only a few months in.  

Perspective ... it's a thing.  

A Biden-appointed pardon attorney was fired, allegedly arising from a refusal to recommend that Mel Gibson get his gun rights back. Here's a recent statement she gave to Congress. 

SCOTUS Watch

Extra: I enjoyed Charlie Brown's Christmas Miracle: The Inspiring, Untold Story of the Making of a Holiday Classic, which is chock-full of information. 

I rewatched the special a few weeks ago and enjoyed that too.

==

There were no oral arguments or scheduled opinion days, but it was still a pretty busy week. 

I addressed a pro forma rejection of final death penalty appeals separately. 

The week started with a ho-hum Order List, which gave me a chance on my substack to provide an Explainer. I wish SCOTUS provided an FAQ. 

After posting, I checked online, and what do you know. There was a per curiam opinion dropped. 

Alien Enemies Act 

The Supreme Court split 5-4 (also by sex), with strong dissents by Sotomayor and Jackson (alone). Barrett joined parts of Sotomayor's dissent. The case involves the Alien Enemies Act.  

There is good and bad news. The majority acknowledged that the government had to provide notice and a chance to be heard before seizing people and sending them off to foreign hellholes. 

So why the passionate dissents? Steve Vladeck and others explain that the limited habeas protections do not meet the moment. The opinion was a gratuitous limitation on addressing the threat. Since so many people will have to sue in the Fifth Circuit, there is also a greater likelihood of conservative results.  

Sotomayor also provided details of what is happening over the bare, unsigned majority opinion, which complained about the "rhetoric" of the dissents. Barrett did not join much of this aspect of the opinion. Kavanaugh dropped an "I'm so reasonable" concurrence, tossing in some mansplaining. 

Jackson strongly called out the majority for using the "shadow of the emergency docket" in a "fly-by-night approach" that is "dangerous." The stakes:

The President of the United States has invoked a centuries-old wartime statute to whisk people away to a notoriously brutal, foreign-run prison. For lovers of liberty, this should be quite concerning. 

Kilmar Abrego Garcia

Garcia fled El Salvador at age sixteen in 2011, illegally entering the country. While looking for work, he was arrested in 2019. A court protected him from being deported because of the risks. 

The Trump Administration illegally deported him and eventually admitted the error. They claimed, however, that they had no power to get him back. A federal judge told them to try. Roberts granted an administrative stay as time ticked by. 

A legalistic per curiam was handed down, providing a "he said/they said." Sotomayor, for the liberals, says more bluntly that there is no evidence he is guilty. They would not have intervened. 

Nonetheless, without dissent, it also noted that the district court's "order properly requires the Government to 'facilitate' Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador."

As the Supreme Court correctly recognized, it is the exclusive prerogative of the President to conduct foreign affairs. By directly noting the deference owed to the Executive Branch, this ruling once again illustrates that activist judges do not have the jurisdiction to seize control of the President’s authority to conduct foreign policy.

[Justice Department Statement]

As Steve Vladeck notes, the presumption of regularity is problematic. The Justice Department replied, which doesn't bode too well, though hopefully he will come back. What about other people wrongly sent?

And, we simply cannot trust this Administration. After all, for telling the truth to the judge that a mistake was made, the acting deputy director of the department’s immigration litigation division was suspended.

For instance, the district judge called a hearing on Friday. The Administration tried to delay. No. The hearing takes place, and the judge asks where he is and if something is being done to get him back. The official word was "info not available." 

Bullshit. At some f-ing point, these people have to be held legally in contempt. Judges being mad is not satisfying when people are rotting in foreign jails. 

More Trump Rulings 

Another per curiam paused a ruling that stopped firing some government workers. A parallel case is still active. The short opinion noted that the people did not have standing. Sotomayor dissented without comment. Jackson said there was no reason to intervene now. Kagan went along without comment. 

Chief Justice Roberts also supplied an "administrative stay" (a limited pause) blocking illegal firings of members of the Merit Systems Protection Board and National Labor Relations Board. Trump is trying to expand previous Roberts Court rulings.

The new solicitor general claims the lower courts are causing "chaos." This is gaslighting. Trump is doing so by going against long precedent to see how far he can go. And, he might win on this one. 

No wonder a long-term member of the Solicitor General's office (he mentored Alito and Kagan) is retiring. Many others are getting the hell out too. 

And More 

Mark Joseph Stern on Bluesky:

Kavanaugh [issued| an administrative stay freezing a 6th Circuit order directing Ohio to approve, for the ballot, an initiative that would end qualified immunity under state law. Officials blocked the initiative on highly questionable grounds that, per the 6th Circuit, violate free speech.

A new director of the Federal Judicial Center was announced. Does Thomas know about this?

"Center education programs include orientation and continuing education for judges on subjects including law and procedure, case management, and ethics."  

Coming Up

There was no scheduled Friday conference. So, no Monday Order List. They are keeping busy, though. 

They return next Thursday for a non-public argument session. That usually means swearing in lawyers, though maybe they will decide to drop opinions. 

SCOTUS Watch

Order List

The eleven-page order list suggested something was afoot. It was a mostly ho-hum Order List with Sotomayor (with Jackson) dissenting (with opinion) from cert denial in a case involving habeas: 

This case raises an entrenched Circuit split over an important question of statutory interpretation: Can a certificate of appealability be denied notwithstanding a circuit judge’s vote to grant it?

Alito and Kavanaugh recused without comment because, unlike the liberals, conservatives won't tell us why. I continue to find this wrong. 

Today In SCOTUS History

A blog provides a daily event in SCOTUS history, which also provides others to note opinions handed down that day, and a Japanese student provides Japanese cases. It also allows others to comment. 

A recent entry in the daily case lists was HUD v. Rucker, which I found distasteful when it came out. It was bothersome that no one dissented. 

Breyer did not take part since his brother handed down the district court opinion. The lower courts held for the challengers. 

My pre-blog discussion is found here. Some of the links are dead, including the Michael Dorf essay. 

Opinions 

April brought some more opinions. 

Alito wrote an opinion for a unanimous court (when you lose Alito, you are in trouble) overturning a Fifth Circuit ruling blocking an e-cigs regulation. Sotomayor wrote a brief concurrence arguing the case was even easier than he said. 

Barrett wrote a 5-4 opinion involving a company called "Medical Marijuana Inc." The issue turns on a medication that supposedly didn't have THC, but led to repeat tests that showed it did. This ultimately led to the person being fired, which led to this litigation.

Holding: "Under civil RICO, §1964(c), a plaintiff may seek treble damages for business or property loss even if the loss resulted from a personal injury."

Barrett's opinion underlined its limited reach and how the challenger still has a lot to prove. Jackson added a paragraph to further her "When Congress speaks, courts should listen" mantra. 

Thomas (alone, wanting to punt) and Kavanaugh (on the merits via an opinion longer than the majority) (with Roberts and Alito) dissented. Roberts rarely dissents, so that's notable. 

Alito's opinion was over forty pages. There were about sixty pages of opinions here. The justices split 5-3 on what Congress meant in the marijuana case. 

Solicitor General 

Sauer is a former federal prosecutor and Missouri solicitor general who successfully argued at the Supreme Court last year on behalf of Donald Trump in his bid for immunity from criminal prosecution related to the Jan. 6, 2021, riot at the US Capitol.

John Sauer, another Trump defense attorney, was confirmed as solicitor general by a party-line vote. He defended Trump in the well-named Trump v. U.S., and now the inmates have taken over the asylum. 

Harmeet Dhillon, an election denier, was also confirmed to lead the DOJ Civil Division. She also opposed masks and supported anti-trans policies. 

Trump's SCOTUS Does Him a Solid

[This opinion dropped sometime late Friday afternoon. We didn't have one of those surprises for a little while. We might want to expect some more.]

The justices are looking on as much litigation is going on in the lower courts. Sotomayor has spoken out generally about the rule of law. Roberts said you shouldn't attack judges. Let things play out.

A 5-4 majority (Roberts joined the liberals) held up a restraining order regarding education-related grants held up because of DEI. Which again is FINE.

The short per curiam was a mixture of procedural with limited hints that the merits were off. The main focus was the idea that the government wouldn't get the funds back, and the challengers didn't need them now. So, it's a limited Trump win. Okay.  

Steve Vladeck is a reasonable law professor and says, "wait until you get really upset, we don't know how bad this is so far."  Again, okay. If it was so trivial, why did Roberts dissent (without comment)?  

Kagan and Jackson followed the three pages of the majority with nineteen pages of dissents. Kagan had a short dissent arguing (1) it was a misuse of the emergency [shadow] docket, (2) there very well is evidence that the funds are necessary now.

Jackson (with Sotomayor) goes into more passionate detail. The majority is "beyond puzzling" and "baffling." There are "numerous" grounds not to do this. She doesn't think the "we won't get the funds back" concern is that credible. And so on. 

Coming Up

After the Order List on Monday, the next scheduled event is ten days later, before the holiday weekend. After the holiday, there are the final weeks of oral arguments. We might also see other orders, including one or more regarding April executions. 

ETA: The Order List had two criminal justice grants but was otherwise no drama. Alito recused, like the conservatives do, without saying why. 

SCOTUS Watch

Miscellaneous Order

Amy Howe (whose personal website disappeared without her commenting on it) explains the appointment of an advocate to argue a case in which the government is no longer defending the relevant issue. They have done this more often this term. 

Summary

The justices came back from their mid-winter hiatus. They dropped opinions and held a conference. They will return for oral arguments next week. There will be orders on Monday and opinion day on Tuesday.

Joan Biskupic wrote an article entitled "The Supreme Court gave Trump immunity. He’s using it as a blank check." Trump is bragging about being a king. 

Opinions

There were three opinions by Kavanaugh (with Roberts + liberals), Kagan (unanimous with concurrences), and Sotomayor (unanimous).  

The first opinion was a limited win for unemployed workers. Chris Geidner on Bluesky* summarized: 

In a 5-4 win for unemployed workers, the Supreme Court allows their lawsuit to proceed alleging that Alabama is illegally delaying their benefits.

The longer SCOTUSblog live blog summary:

The court holds that when a state court's application of a state exhaustion requirement effectively gives state officials immunity from federal civil rights claims challenging delays in the administrative process, state courts cannot deny those claims on the ground that the plaintiff has failed to exhaust them. 

The regulation of state courts raises federalism concerns that suggest why it split the justices. Thomas went further than the other three in support of overruling precedents to advance his cause. 

Kagan obtained a unanimous court in the next case by narrowing the issues. A few justices raised concerns about wider issues. It's a technical issue with some wider importance to the average American:

This is a case about a program that establishes subsidies for the internet and telecom services for schools and libraries across the country. The funds are payable upon receipt of a reimbursement request. The question is whether such a request counts as a "claim" under the False Claims Act. The court holds that the reimbursement requests do satisfy that requirement because the government provided at least a "portion" of the money applied for.

(Again, SCOTUSblog live blog summary.) 

The third lawsuit involved Holocaust survivors and their heirs bringing a lawsuit in U.S. courts against Hungary for illegally seized property during WWII. There is a federal law that blocks such lawsuits with exceptions. The court says there is no window here regarding the specific argument made. 

As usual, it's nice that the opinions are readily available, along with online discussion, but audio/video would be better. We are also told ahead of time that there is an opinion day but not what would be handed down. I'm generally okay with that.  

Trump Suit

The first Trump matter reached the court involving his attempt to remove Hampton Dellinger from his position as Special Counsel for the Office of Special Counsel. Steve Vladeck argues this dispute has a limited reach. They basically decided to wait and see.

A lower court restraining order was "held in abeyance" for a few days. Sotomayor and Jackson wouldn't even grant that. Gorsuch and Alito thought that was too much that other way and would have reached out and lifted the restraining order.  

Vladeck calls this a "punt." To be continued.

==

* Some people act surprised when one or more conservatives hand down a reasonable order. 

Justices aren't perfect little devils who always rule badly. To be sure, they did earn some lack of the benefit of the doubt. 

SCOTUS Watch

The current Acting Solicitor General is Sarah Harris, a former Thomas clerk. She gave notice that the Trump Administration is thinking about or is changing gears on a few cases. This is normal behavior with a change of administration. Expect more of this in the future.

The Supreme Court granted three more cases in part to address a dispute involving funding of a charter school. It provides an opportunity to continue to weaken the separation of church and state, which hinders free exercise too in the process.

(Barrett recused. The conservatives don't say why unlike the liberals so we can only guess why.) 

The Monday Order List is generally a housekeeping matter without anything much of note. Barrett didn't explain why she didn't take part in something. Thomas (with Alito) cites what they think is an abuse of habeas/ignoring the limits of AEDPA. 

(Did Thomas want to find an answer to a recent opinion that held a lower court misapplied the rules against the defendant? Recall even Alito disagreed with the dissent, that time joined by Gorsuch.) 

Monday's Order List is the last official action of the Supreme Court until late February. They have a public non-argument session (often for swearing-in lawyers) and a Friday conference on February 21st. Then, it is back to oral arguments for two more weeks. 

The first execution of the year is on January 31st and we will see if there is any final SCOTUS appeal. There also will be other miscellaneous orders and SCOTUS-related actions until they come back.  

Steve Vladeck discusses how the Supreme Court in the past few years has decided many more federal government claims, raising the temperature. 

ETA: SCOTUS added another case (they usually do this on Friday; was it missed?) for argument, again speeding things along so they can hear it this term.

SCOTUS Watch

The Supreme Court continues to do some notable things as they go into a mini-recess. Of sorts. 

Order List 

The final conference of the year led to two grants and a non-descript order list on the following Monday. The Supreme Court separately amended a grant to specify that they were not concerned with the second question submitted for review.

In the Order List, Thomas publicly said (without comment) that he would take an issue involving the EPA. Alito did not take part in a case without saying why. Only the liberals explain their non-involvement.

Other Orders 

The justices without comment denied an "application to recall and stay the mandate" involving a habeas claim. The lower court (citing the petition) "held that a new expert report based on a previously available claim can restart the clock for filing a habeas petition that is otherwise untimely by years."  

The Supreme Court provided accelerated oral argument (January 10) in the TikTok case. Steve Vladeck supported the move with the law going into effect on January 19th. 

I bow to his knowledge but note that the Court can speed things along if it wants to do so. Cf. Trump cases. Also, will this be the current S.G.'s swan song?

(A media advisory is a red flag that there promises to be some extra call for seats for the TikTok orals.) 

The Supreme Court also granted a case involving Medicaid funding for Planned Parenthood. A quite different solicitor general will handle that one. 

Broadway Debut

Some coverage of Justice Jackson's Broadway debut including some behind-the-scenes video. She is not the first person who popped up on screen like this. 

Justice Sotomayor was on an episode of Sesame Street. Justice Blackmun waited until he was retired for a cameo in Amistad, playing someone a couple decades younger than him. Breyer replaced Blackmun on the Court and Jackson replaced Breyer.  

Lower Courts  

President nominated Adeel A. Mangi as a court of appeals judge and he would have been the first Muslim in that role. He was blocked for bullshit reasons with three Democrats going along with all the Republicans. Mangi used a letter to President Biden to make some parting shots, providing receipts. 

This was a sad day for America, including for religious liberty. I cited the letter on a blog, and someone responded with a bunch of invective. 

The letter provides multiple refutations. Chris Geidner has more. 

A lower court judge was flagged (since they have binding ethics) for criticizing Alito. Another (James Ho, who surely seems like he is pining for a seat on SCOTUS even if a supporter denies it) can spout partisan cant willy-nilly though. 

The new budget increases money provided to defend justices' safety. Perhaps, a quid pro quo requiring more ethics in return would be justified.  

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.

SCOTUS Watch: Opinions & (Sigh) More Alito News

Alito Letter

I will primarily defer to Chris Geidner (with reference to a good Slate piece) on the details here. 

Alito sent a letter to both houses of Congress and refused to recuse in two pending January 6th cases. The letter mixes troll and grievance. He in part declares:

I am confident that a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would include the facts recounted above do not meet the applicable standard of recusal.

As the Vox analysis argues, he uses the SCOTUS code of ethics to avoid a stricter statutory provision ("shall") that applies to justices. Rep. Raskin in a NYT op-ed wants the government to press the issue, tossing in a due process argument. 

His examples are easier calls than this one. And, it isn't just "Merrick Garland" not likely to want to poke the bear, playing the long game. But, the time to draw a line in the sand is upon us. We should not just worry about typical financial recusals. 

You can read more here and here. The second is a discussion of other federal laws that Thomas appears to have violated. There are in theory civil and criminal sanctions in place in those cases. Ultimately, a binding ethics rule with teeth should be in place. Democratic trifecta, please. 

Finally, Alito's discussions of his wife's independent control over their homes remind me of this Fourth Amendment case. The letter has a lot, including a reference to Mrs. Alito's interest in "religious flags." Does she ever fly the Christian flag, which has Christian Nationalist implications, including on January 6th? 

I do not know if this is the last chapter in the ongoing Alito flag saga -- I doubt it. In fact, later in the day, CJ Roberts released a short letter rejecting Durbin/Whitehouse's request for a meeting. He repeated his former argument that Chief Justices rarely meet with Congress. They have in the past; he also has privately met with members for certain reasons. Those things, however, are not mentioned.  

When reading about the Washington Post's role in reporting their own role, I was reminded of a famous Justice Holmes quote about the common law. It has a broad application to the law itself and other matters:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

Meanwhile, Justice Barrett's husband is involved in a Fox News case. This article shows evidence she has not properly disclosed her husband's possible conflicts. 

Anyway, it doesn't work that way Sam, and both you and Thomas should resign. 

SCOTUS Opinions

There were three opinions, none of which were earth-shattering. Kavanaugh with a unanimous ruling:

The Second Circuit failed to analyze whether New York’s interest on escrow law is preempted as applied to national banks in a manner consistent with Dodd-Frank and Barnett Bank. 

Sotomayor had another unanimous ruling involving an NRA claim that the New York Department of Financial Services pressured regulated insurance companies not to do business with them. I think the claim is exaggerated. Also, as noted in this summary, the official sued might be protected by qualified immunity. 

But, at the "motion to dismiss stage," the Court found enough to let them move on:

The NRA plausibly alleged that respondent violated the First Amendment by coercing regulated entities to terminate their business relationships with the NRA in order to punish or suppress gun promotion advocacy

Gorsuch has a brief concurrence to underline his support of coercion claims. Jackson has a longer concurrence wary of the open-ended nature of the claim, suggesting some limits that would be present in other cases.  

Some people thought the timing of Alito's letter suggested one of the January 6th cases would come down. Alito did have a 6-3 (liberals dissenting) but it was a habeas case involving an ineffective counsel claim. 

The opinion overturned the opinion below that supported it. Sotomayor (with Kagan) dissented narrowly, agreeing the court below erred. They wanted to send the case back to try again. Jackson's similarly brief dissent was more critical of the majority opinion:

I agree with JUSTICE SOTOMAYOR that we are not the right tribunal to parse the extensive factual record in this case in the first instance. That is doubly true where the Ninth Circuit committed no legal error in reviewing that record to begin with.  

The "parse the extensive factual record" has added context when we remember the liberals' strong dissent to Alito doing that in a racial discrimination voting rights case. 

To toss in a footnote, the drug-related case by Alito for which Jackson had a strong dissent was updated with two corrections. The usual practice is to wait until it is put in the final volume of opinions, which is handled much more quickly. I am not sure why a couple times they still followed the old policy of linking a correction on the Opinion Page. 

Next Steps

The justices had a conference today. Perhaps, they talked flags. There is a pending capital case that I will address separately.  An Order List will come on Monday. 

There is also a notice on the calendar of possible opinions next Thursday. More hot-button cases are still pending. 

SCOTUS Watch

Trump Immunity Case

I referenced this earlier but I'll repeat myself to put things all in one post. 

Trump's lawyers requested a stay last Monday, the last day to do so before the circuit opinion went into effect. The government quickly replied. And, then Trump's side replied. Speed is possible when desired. 

The quick reply allowed the Supreme Court to take up the matter in their Friday conference. One assumption was that if they cared to grant the stay, they would do so on Friday. This is a common approach. Then, the Order List involves run-of-the-mill stuff. On the other hand, this is a special matter.

Regardless, no action was taken on Friday.  

To remind you, if you go to the Docket Page (the main Docket Page link under the "Case Documents" tab; SCOTUSBlog helpfully provides case pages with a direct link), you can find proceedings and orders related to the case. 

Now, there is a service where if you click the envelope icon on the case's docket page, email updates will be provided as things occur. BTW, the docket page link on my blog sometimes doesn't work if you directly click it. If you cut and paste the URL, it will work. 

Friday Odds and Ends

SCOTUS released the April argument schedule. April is the final month of oral arguments.

Alito released an "administrative stay," which holds up a case so the request can be examined, in a bankruptcy matter. 

[Lifted on 2/22.]

The solicitor general's request to take part in three oral arguments was granted. 

Wednesday 2/21 was announced as a possible (let's grant it will be) opinion release day. 

Meanwhile 

The Senate Democrats have still not submitted those subpoenas to Leonard Leo and Harlan Crow. A third person early on cooperated, making that subpoena unnecessary. These two cooperating is not likely. What is the hold-up? 

A preview of the issues that will be covered in an argument this week. It involves environmental regulations, an area the Barrett Court has interfered with in recent years. It has some procedural complexities, including a rush to judgment to hear the case. An oral argument, over action the shadow docket might be said to be a "see Steve Vladeck" move. 

Also, a major development in the New York fraud case:

On Friday, New York state Judge Arthur Engoron handed down the verdict in Donald Trump’s civil fraud case. Engoron ordered Trump, Donald Trump Jr. and Eric Trump, along with other officers, to pay more than $360 million. Trump himself is banned from running any corporation in New York for three years; his sons are banned for two.

This guy is the favored Republican candidate for president. To add one more wrinkle, his ever-increasing financial issues only encourage his financial grift, including the use of foreign money supplies (see, e.g., emoluments issue). 

Sure. That is what we want in a chief executive. 

Order List 

After the day off for Washington's Birthday (not President's Day), we have a list of Supreme Court orders. The list was long (if it's over 10-15 pages, it is suggestive) because various justices added dissents and statements. 

Thomas dissented regarded provided a statement regarding a rent control law, saying he is open to the challenge. Sotomayor (with Jackson) dropped a statement respecting a habeas case. Kavanaugh showed interest in the matter in the past. Four votes are necessary for taking a case. 

Alito dropped a statement to complain gay rights somehow interfere with religious liberty as if a range of sexual questions (including divorce) with religious connotations did not exist long before gay rights were protected. 

The case involved the recusal of a person with religious views that reasonably implied bias in the specific case. Read the state opinion here.

Alito (with Thomas) dissented from denial in a case involving an alternative to race-based affirmative action. Gorsuch in a past procedural order supported a stay but did not join their dissent. The duo argues the motive and effect is racially discriminatory. The actual factors are not (at least if you simply read them). 

The case has been closely observed since there is a never-ending fight over such matters, including how far the anti-affirmative action movement will go. The original plan relied on tests. Then, it changed to the use of various factors, which is claimed to burden Asian Americans. 

ETA: Mark Joseph Stern (Slate) flagged five justices recused from various orders -- Roberts, Alito, Kagan, Barrett, and Jackson. Only Kagan and Jackson provided reasons. 

Next Up

We have oral arguments, an opinion day, and another conference scheduled this week.  

ETA: The opinions were short (by Jackson and Kavanaugh) and unanimous (Alito and Thomas added concurrences) opinions on double jeopardy and maritime law. 

World Series & Other Stuff

Texas Rangers, ending a drought, won the World Series in five games. Arizona came out tough, getting to their ace in Game 1. 

Unfortunately, former Mets journeyman and now apparent ace playoffs closer Paul Sewald turned into a pumpkin. He blew the save. Arizona bats came out in force late in Game 2 to make that a laugher. They lost a close one and then their bullpen game did not go well this time.  

Down 3-1, Arizona tried to make at least a series of it. Nonetheless, it is hard to get out an ace twice. This time he bent but did not break. Arizona's starter finally gave up a single run. Arizona's shot at a late comeback was basically ended when Sewald threw in another egg, four runs being given up in the end. 

So, overall, Arizona did somewhat better than their record suggests. If you want to try to look on the bright side. I did not really see much of the series. If I did, it would have been a mixture of nailbiting and turning off that game where they were losing 10-0 (wound up 11-7 with two late garbage time innings) early. I wanted them to win but am not that upset, except that I would have liked a more competitive overall result.

==

I wrote some thumbnail reviews of books on my Substack page. 

==

This refusal to grant relief to someone who is not only likely innocent but who the victim's own family accepts should be released is a travesty. 

The problem is not merely "Republicans." You can find Republican governors who would act differently. Yes, even in Texas once in a blue moon. The Texas courts recently held up an execution and not on innocence grounds. They have their moments. 

It also was just bad taste that a few people made it personal. It is quite easy not to like Sarah Huckabee Sanders. Nonetheless, making fun of her weight or appearance is tasteless. You are left with that unpleasant feeling where you want to defend someone you rather not defend. 

The system in place, including where even very strong cases for relief are blocked, is very problematic. Yes, there are many frivolous appeals in the mix as there are frivolous lawsuits of all kinds. Life and death warrant allowing an opening. Commutations and pardons are supposed to be one outlet here. They are an imperfect one up to and including the presidential process in place.  Yes, Democrat or Republican, that needs to be reformed.

I also continue to think that people should not be in prison for thirty years except in a tiny number of cases. Not this one, even if the guy did murder someone.  Charles Manson? Yes, I can see keeping him locked up. Ditto a small number of very dangerous defendants. Someone who committed a heinous crime? Not for that reason alone. Decades in a little cage is enough. 

These snapshots of injustices also bother me in a different way. They provide a chance for people to say "How horrible!" and "The system sucks!" or "Police are bad!" The system (whatever it is) has problems. However, it rarely totally sucks. Police engage with people thousands upon thousands of times a year. They have a legitimate job. 

These takes nearly never address those things. When they do flag a "good arrest" or whatever, they still don't note (even in small print or in a footnote) that "at times the police have a role."  It's a bit like when people hate lawyers, except when they need one.  

[I grant some hate them there too.]

===

Daylight Saving Time is a bit stupid. I think we should probably just end the thing. It isn't way up there. We are used to it. 

But, not having to worry about changing the time twice a year would be nice. Am I one of the few still still has a digital clock where you have to go all around to "fall back"? One also skips a few minutes at a time so it rarely is the right time. Both are of limited use but still use the radio at times. I actually have one on my phone too but that needs a headphone. 

Anyways, remember, "fall back, spring forward."  

SCOTUS Watch: Innocence Only So Important

Okay.  After that gave people something to do after the Order List, let's address the opinions handed down on Thursday and Friday.  I will split them into two for easier reading. Spoiler: no big hot buttons yet. 

Thursday had four opinions, none on "hot button" issues though perhaps two were particularly notable.  We have another extended and eloquent Gorsuch dissent on our duties to Native Americans. He was joined by the liberals.  Thomas again had separate writing to provide his particular narrow view of federal power over tribes.  He talks about the general "trust" relationship recognized.  At the end of the day, I'm not sure how much that really adds to the situation.  Such a relationship also makes sense.

The other case is notable for a long Jackson solo dissent (Sotomayor and Kagan jointly briefly dissent on more limited grounds) in a habeas case that cuts off the power of a person to bring an innocence claim.  Note how the government found a way to win without supporting the broad position of the lower court but SCOTUS reached out to go further.  

[Jackson (unlike Gorsuch) joined a majority in another case involving interpreting a criminal-related statute.  

Another opinion split 6-3 with Sotomayor writing and three conservatives dissenting. Neither comes off as too important though most are for someone.]  

One thing I respect is her statement that history, especially original history, is not the only thing that matters here.  There is some precedent that suggests federal habeas power is strongest tied to the original habeas recognized at the Founding.  But, that should not be taken that the original reach alone is what is in place.  This sort of thing is absurd.  It develops over time. 

A Trump legal guy congratulated the winning advocate. This pissed some liberal legal people off, one speaking of the "moral bankruptcy" of congratulating blocking an innocence claim.  She was specially chosen since the government (SG) did not support the broad claim that the six justices clearly wanted to take.  

Okay.  See, the guy thinks the correct side.  At times, that even happens in somewhat unfortunate cases where a sympathetic plaintiff loses.  Either way, what do you expect?  The guy is going to be embarrassed about "his" side winning?  And, I'm not sure if the person was ethically required to take the case.  But, I suppose she very well agreed with the position too.

This statutory past is prologue to the case of Marcus DeAngelo Jones.  Jones was convicted in 2000 of being a felon in possession of a firearm and sentenced to over 27 years in prison.

The SCOTUSBlog summary along with others highlights that this person is in prison for around three decades for a gun charge.  Now, that isn't trivial or anything.  His felonies and breadth of criming helped the solicitor general's argument that even granting his claim, wouldn't help him since he didn't really have "innocent" conduct here.  Still, thirty years.

I don't think anyone but someone who murdered in prison or something (toss in the Charles Manson types) should be in a small cage for that long. And, he was already there for over 20 years.  If the government wanted to toss this case -- they didn't want them to take it in the first place (had to be requested even to reply to the cert request) and then didn't defend the opinion below -- President Biden could have commuted the sentence. 

I gather if that would have required the guy to drop the case, he would have done so.  I think some of the attacks on Biden's alleged cruelty and lack of concern regarding the pardon system are at least somewhat unfair.  But, this case does suggest how the system can be a cruel and malfunctioning machine.  

Jackson is sure to note that she is just arguing for the right of Jones to make his case.  I think it's strong enough to let him out of prison after him being there for around twenty-three years.  Sometimes, I think a middle ground is the logical one.  A third option.  One that also addresses more than one thing.  Yes, maybe now, you just commute the sentence.