Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to almostsanejoe@aol.com; please put "blog comments" in the subject line.
Sotomayor handled a civil procedure case relatively quickly. It involved a dispute about allegedly tainted baby food. Thomas added a concurrence to flag yet another issue he is concerned about.
[2]
Thomas had the majority in the second case regarding the limits of sovereign immunity in a case alleging race discrimination by the post office.
Sotomayor, for the liberals, and Gorsuch (a limit on federal agencies of any type is his thing) dissented. She felt the woman had a right to sue.
Congress can pass a new statute to clarify matters. This is often the case. Many cases involve statutory matters for which the legislature can tweak things. Congress might fail to do this (see tariffs), and in response, the courts increase in power.
[3]
Kagan and Jackson wrote the Wednesday opinions. So, readers can expect things to go pretty well. Each was unanimous in result, with a few conservatives adding comments. A brief summary below.
Justice Jackson affirms the Texas Court of Criminal Appeals on the scope of the right to counsel during breaks in trials. Accepts some limits on counsel engaging with the defendant (as a witness), adding some clarifying details about the rules.
[4]
Kagan has an opinion on whether a government contractor can immediately appeal an order rejecting its claim to sovereign immunity derived from its work for the government. They can't.
One of the many technical cases they take. Kagan often can write these opinions in at least a halfway understandable way.
The case also has a topical connection. Appeals take a long time. The facts are now around ten years old. They involve facts alleging a contractor's work policies for detainees violate a federal bar on forced labor and Colorado’s prohibition on unjust enrichment.
Melvin Trotter Execution
A crack addict named Melvin Trotter fatally stabbed 70-year-old Virgie Langford in the corner grocery store she ran for 50 years. Trotter has been on death row for nearly 40 years for the murder.
Colorful summary. His lawyers argued that the claim of "premeditation" is dubious when he seized a knife at the scene. That is a big reason why he got the death penalty. Even bad crimes might not warrant it.
Melvin’s death sentence was handed down by a non-unanimous jury on two separate occasions. Florida is one of the only states that allows a death sentence to be given without the full confidence of the jury, making it widely recognized as unreliable. Melvin’s life was shaped by severe trauma, instability, and intellectual limitations that were never meaningfully addressed in court.
The final appeal alleged problems with the Florida execution protocol. Sotomayor (for herself) dropped a statement "to express concern about Florida’s implementation of its execution protocol and the secrecy surrounding it."
Sotomayor has been the justice most concerned about lethal injection protocols. She noted the claim alleged flagged problems like "incorrect drug doses, the use of nonprotocol drugs, and recordkeeping lapses that could mask yet additional failing."
She joined the "no comment" denial because there wasn't (in her view) enough evidence in this case. It is rare to see any discussion in these final appeals.
I continue, like apparently no justice is left on the Court, to find it problematic to only execute someone decades after the conviction. Forty years on death row is punishment enough.
Florida executed him a few hours later.
Opinion Announcements
We also have good news: Fix the Court managed to access last term's opinion announcements. They are (for now) in a harder-to-access form, but the effort is appreciated. It would be simpler if SCOTUS posted it themselves. They think it is worthwhile to have them.
Upcoming
More orders and oral arguments next week/month.
ETA: There will also probably be one or more opinions dropping on Wednesday. Also, Tom Goldstein, founder of SCOTUSblog, was convicted.
Chris Geidner discussed the latest, involving a perverted take on executive power. Strong Kagan dissent. The 6-3 majority rushed to take the Trump case while rejecting [9/22] two fired officials' requests. They also had a more humdrum housekeeping Order List.
In early June, the Government launched “Operation At Large” in Los Angeles, deploying roving patrols of armed and masked immigration agents to local car washes, Home Depots, tow yards, bus stops, farms, recycling centers, churches, and parks. Over the course of the next month, the Government made nearly 2,800 immigration-related arrests and detained many more.
Justice Sotomayor, for the liberals, then explains how racial profiling was used. She also summarizes the lawsuit. The district court, as usual in these cases, writing an extensive opinion, held for the challengers.
The judge is a well-experienced child of Ghanaian immigrants. The Ninth Circuit upheld the opinion. The Supreme Court stayed the opinion without saying why. Kavanaugh, in a dubious mansplaining way, alone has an opinion. The dissent is double the length.
Law Dork has more. A reasonable (at some point, that is a sarcastic term), conservative-leaning professor defends the decision. I am not that keen on his take and tone, but hey, what am I to do to challenge a Fourth Amendment expert?
It has a comment from "anon" that in part compares abusive practices by normal police and ICE agents:
There are disincentives to cops doing this. They can get sued, or evidence can get suppressed, and the case thrown out. Employers of cops also have incentives to train cops to make sure they don't run roughshod over the Fourth Amendment, since they can also be subject to liability (either directly or through indemnification), and since they would also rather not have evidence suppressed in criminal cases. Some of those employers also buy insurance for these sorts of situations, and those insurers are doubtless also keen to make sure that officers know the law.
Those disincentives don't apply to the ICE agents who participate in these roundups. Civil remedies against federal agents for violating Fourth Amendment rights are very weak. And these raids are not about detecting and punishing crime.
Another professor provides another take on a key standing point. Lots of legal minds found the decision quite appalling. There is also a hypocritical tint.
Meanwhile, Chief Justice Roberts handed down an administrative stay that seems to, in effect, overturn a 1930s Supreme Court opinion that protects many agency personnel from at-will presidential removal.
This might just be a temporary thing, since an administrative stay is temporary. Many are not that optimistic. We shall see.
This all makes me feel fine. That is, f-ed insecure neurotic and emotional.
Don't worry. Barrett, doing her book tour now, thinks there is no constitutional crisis.
As Sotomayor noted, dropping the "respectfully," I dissent. "I dissent" should be the normal thing.
==
Okay. That was yesterday. I was going to leave it there, but there was more action today.
John Roberts issues another "administrative stay," this time blocking Judge Ali's preliminary injunction in the foreign aid funding case while the Supreme Court considers DOJ's request (which was denied by the DC Circuit). [h/t Chris Geinder]
They will also decide the "Trump tariffs" issue. They are speeding along. No slow walking like in the Trump immunity case. Why? It surely is not because there it helped Trump that things went slowly.
The new term starts on the First Monday in October.
The CFPB emerged in the wake of the 2008 financial crisis with the mission of "enforcing federal consumer financial laws and protecting consumers." As of December 2024, the CFPB reported it had recovered up to $21 billion in compensation, debt cancellation, and other forms of relief for American consumers.
The director, to protect their independence, could only be removed for “inefficiency, neglect of duty, or malfeasance in office." The Supreme Court, 5-4, struck down this independence. It is somehow a violation of executive power to have them execute congressional law here.
Justice Kagan in dissent explained the problems, appealing to history and principle. The problem then became how far the majority would take its reasoning. The ultimate target appeared to be Humphrey’s Executor v. United States (1935).
(That ruling limited a 1920s ruling, written by Chief Justice Taft, a former president, Myers v. U.S. Nonetheless, that opinion was far from compelling. Three justices, including Holmes and Brandeis, provided strong dissents.)
The target was in Trump's sights as he started to attack the independence of multiple agencies. The shadow docket was used with little analysis to help him. Kagan, for the liberals, again strongly dissented. One problem was the chickenshit way the justices (anonymously) were doing it.
The process continued today. The majority now attacked the Consumer Product Safety Commission. Kagan again dissented for the liberals.
The slipshod way the conservatives went about it was so bad that Kavanaugh concurred, saying he would be more above-board. He went along, though. He's basically Susan Collins, a suitable comparison, since she voted for him.
Judge Don Willett, a Trump nominee, was one of the lower court judges who followed precedent. That is, after all, what they are supposed to do. They are not supposed to overturn precedent because the Supreme Court, by winks and nods (“not conclusive as to the merits” but “inform how a court should exercise its”), implies something.
Maybe, Trump 2.0 judges -- now starting to be confirmed -- will be better able to interpret the "cues" as one "reasonable" conservative (who is rooting for those judges) framed it.
Or, the justices can just bite the bullet and go all the way, which would be wrong, but at least halfway credible procedurally. What a corrupt bunch of assholes. Can't they just enjoy their summer as this old drawing portrays?
Friday brought six more opinions. There are ten left, which might be two days of opinions. Maybe three, which I would not be surprised about. So, they are mostly on schedule.
There was a good amount of writing, though we are not talking hot-button stuff overall. The things covered included various regulatory issues, a disability claim that led to a strong dissent by Jackson, and a unanimous (on result; the one case Sotomayor and Jackson simply went along). decision about jurisdiction in a lawsuit against the PLO.
Kagan had a strong dissent for the liberals in a regulatory matter arising from fax machines (just the fax, ma'am). She was not happy about the result ("Those words mean what they say, or anyway should.") I usually trust her judgment.
Alito (with Gorsuch) grumbled some in dissent that provided a limited liberal result in a sentencing case. "Veteran trial judges often complain that their appellate colleagues live in a world of airy abstractions." The two former district court judges joined the majority opinion. Barrett replied at one point in a footnote regarding his "curious" allegations.
Jackson, who used to be a sentencing commission member, concurred to partially disagree with some aspects of the opinion. She had a strong dissent (Sotomayor went along part of the way) in that disability case.
Jackson included an on-point footnote answering Gorsuch's charge that she avoided relying on pure textualism as "insufficiently pliable." She noted that "ambiguous text" requires using multiple interpretive approaches because "pure textualism is incessantly malleable."
Yes. People too often are cocksure about what the text means, sometimes in annoying Gorsuch-like fashion accusing people of making shit up because they are biased if they don't agree. This is not just something conservatives do, though they often are more likely to do so.
Text is not always so clear. We often look at it through a glass, darkly, to quote Saint Paul. The appropriate means of interpreting the English language includes factoring in multiple criteria. Pure textualism, whatever that means, alone means using textual interpretative devices (with obligatory citations of a Scalia text) that offer multiple options.
Anyway, the cases are not overly exciting, and Kagan only dissented in one. They are of some importance, which again explains why Sotomayor and Jackson have so many separate writings. There are various lessons to be learned.
Eric Segall (Dorf on Law) on Bluesky noted:
The Court’s 4th case, for standing nerds, basically stands for the proposition that companies seeking profits have a much better chance of getting standing than civil rights groups and journalists. Pitiful and pathetic.
I'm not a standing nerd but respect his opinion (up to a point) on such matters. Jackson's dissent (Sotomayor dissents less strenuously) basically agrees with him, referencing eroding public trust and so forth.
Jackson today knows her role -- liberal dissenter, speaking for the future. She has the "lone ranger" role Rehnquist had in the 1970s. This makes a Bluesky comment about her being a future Chief Justice even more apt. Took fifteen years, so have a ways to go.
Mark Joseph Stern: "What you see in today's opinions is the three liberals assuming different roles.
Kagan is the conciliator, siding with the conservatives to assure them she's reasonable. KBJ is ready to shoot flaming arrows and burn it all down.
[#TeamJackson!]
Sotomayor is in between them, trying to find middle ground and keep the peace." Sotomayor as peacemaker is almost amusing, but she does that. She had spoken of "her friend Gorsuch," for instance.
Chris Geidner also has more on the trans health case, which deserves firm denunciation.
Trump Enabling Watch
The 9th Circuit helped Trump regarding his power to send the National Guard to California. They provided a rather low bar for determining normal means was not enough.
Courts will be loath to interfere with executive discretion in such cases, but Judge Breyer (not that one) had a point. Overall, procedurally, it was a limited win for Trump.
Meanwhile, the Supreme Court handed down an order that "the motion of petitioners to expedite consideration of the petition for a writ of certiorari before judgment is denied" in a tariff case.
Coming Up
We are coming up to the home stretch of the June home stretch. Another Order List on Monday. At least two opinion days. Two executions scheduled.
The next opinion day for now is Thursday. That would allow for opinions days on Thursday and Friday, with a clean-up on the following Monday (June 30).
Jodi Kantor, who is a good get, has another long-form article on the Supreme Court. The article is geared toward the average reader, providing an easy-to-read narrative and tossing in some interesting details.
It discusses Justice Amy Barrett (yes, I'm not going to do the no-label thing). The headline has the usual "confounding left and right" bit, while the article shows she is still rather conservative, if not knee-jerk. If her nomination was above board, she could have been a decent in-context option for the Kennedy seat. Instead, she was shoved on late.
Two liberal law professors whom I like, Melissa Murray (Strict Scrutiny Podcast and cable news appearances) and Michael Dorf (Dorf on Law), are quoted.
Both are relists, one more so, suggesting an ideological nature. The government's brief argues (the briefing is linked to the SCOTUSblog page) that for multiple reasons, there is no compelling need to take this case as one of the few cases SCOTUS takes for full review.
The case involves a crisis pregnancy center, which would make it appealing for multiple conservative justices. Also, a judge below dissented, which provides a flag to invite review. A Trump appointee, even if he at times votes in a libertarian way.
There is also a GVR, also involving abortion, sending a longstanding dispute back to the lower courts (grant, vacate, and remand). New York supported the move. So, not surprising, but shows the implications of the referenced opinion.
(If you follow the link, it goes to the docket page, and there is a supplemental brief on the point.)
So, yes, even in a short, otherwise bland Order List, there is something notable. Tends to be.
Exaggerated Agreement
Twolegal Substacks challenged the suggestion that the recent slew of agreements should be taken to mean the justices are not ideologically divided.
We still have some controversial cases left. There is a tendency to backload such cases to the very end of the term. The emergency/shadow docket is repeatedly ideologically divided, including all the Trump cases.
The docket is also carefully selected, with the justices having near total opportunity (except for some election cases) to choose what they want. They can pick cases with certain fact patterns and legal issues. Sometimes, they goof, leading to multiple DIGs this term ("improvidently granted").
The justices also carefully decide the cases, which helps explain why it takes so long to write certain opinions. Divisive issues are sometimes avoided.
The divisions are sometimes not totally papered over, as shown by concurring opinions. The justices in a few cases are firmly divided in reasoning. Other times, one or more justices flag issues that the opinion avoids, including possible routes for the future or attempts to limit its reach.
Joan Biskupic flags a concurrence in one of these cases by Thomas with Gorsuch that tosses in a dig at DEI referencing a brief by a group started by Stephen Miller. Gorsuch, team libertarian. Yes, separate opinions have a personal flavor.
The selection of a few key cases, this term was less hot-button than some others, is a prudential approach. The Supreme Court used to take many more cases. The current Court has more power to control its docket. It is also much more active in the shadow docket, including (much to Jackson's annoyance) granting relief in pending cases.
This is inside baseball stuff. It still has some rather important consequences. More opinions on Wednesday. Hot-button cases coming up.
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.
I discuss the various aspects of the FUBAR nature of SignalGate.
==
SCOTUS handed down two rulings. Ghost gun regulations were so obviously valid that Justice Gorsuch wrote a 7-2 opinion upholding them.
No kewpie doll for predicting the two dissenters. Gorsuch had a brief dissent to Jackson's opinion in a bankruptcy case. Meanwhile, as flagged by Paul Clement supporting the government, it looks like the big oral argument won't bring any big changes.
==
I planned to reserve the PsychoDVD, but instead accidentally received the novel. Don't recall the film too much, but the two seem to mostly mesh.
(Norman Bates in the book is more pudgy and somewhat older than Anthony Perkins at that time.)
The book is a straightforward account, basically of novella length, that helpfully shows things through multiple points of view. The ending matches the film.
I was sort of bored since it was not a surprise. Nonetheless, it was a good, steady read.
==
Also went to the old Mid-Manhattan Library, which has a good selection of DVDs, both films and television series. I found After Words, a film starring Marcia Gay Harden, one of those actors who you say "she's pretty good, I wish she had bigger roles."
To be fair, she had a sizable number of roles, including as "Susan" in the Spenser for Hire films. She plays a quiet, lonely librarian who comes out of her shell.
The role is stereotypical and lacks a certain amount of depth, but the Costa Rica locations are nice to look at, and its shortish running time helps. The actor who plays the guide is also a bit rough but interesting.
Overall, it was okay, and I watched the whole thing. That's saying something for me these days. After all, I also recently borrowed more than one series DVD, and have not yet watched a full episode yet.
While we, as noted yesterday, on in the "final countdown," SCOTUS is back to remind us how the courts on on the ballot. The oral argument today might have been dull but they can't avoid that.
Today's Order List, which is (as usual) not too fascinating has various reminders of this fact. Some lower court cases are disposed of with reference to SCOTUS cases involving administrative law and gun regulation. (Amy Howe has more.)
Court personnel and the federal government's position in these cases are significantly affected by who controls the other two branches of government.
Jurisdiction is noted in two cases involving the use of race in districting with oral argument pending. Election cases are one of the few areas where Congress restricted the Supreme Court's ability to pick and choose what cases to take. Liberals regularly hold their breath in such cases.
One case involving immigration law was granted. Riley v. Garland might have a different caption (name) when the case is handed down. It is likely that whoever wins that we will have a new attorney general. Let's see how this one is judged.
There is also a short per curiam that sends back a case involving intellectual disability and the death penalty to clarify what the lower court meant. Thomas and Gorsuch would have taken the case now. The case had been "relisted," suggesting some complications behind the scenes. This result feels like a compromise that kicks things down the road.
===
Today's Strict Scrutiny Podcast talked about Alito and the princess, which is the stuff they (especially Meghan Markle fan, Melissa Murray) LIVE for. One wrinkle is a possible violation of the Titles of Nobility Clause. Sure, why not?
Steve Vladeck talked about presidents and justices in his weekly substack. And, what is a Vladeck post without a helpful spreadsheet?
President Biden had one justice vacancy to fill while Trump had three. Let's not give him two more.
SCOTUS had no oral arguments. They were somewhat busy with orders and November began with a conference which will bring orders on Monday.
The Supreme Court on Monday allowed a federal law intended to standardize anti-doping and safety regulations in horse racing to remain in place while a challenge to that law plays out.
Amy Howe dealt with the somewhat confusing procedural dynamics. Bottom line, only Justice Jackson (though Prof. Steve Vladeck on Twitter said she was right) openly disagreed.
The move suggests that the justices are interested in taking the case. If so, it can have some significant effect on regulatory choice. There was some bipartisan support for this particular regulation with Mitch McConnell among those saying it has made things safer overall.
Gorsuch dissented from the decision to leave Kennedy on the ballot in Michigan. In a short paragraph, he indicated that he largely agreed with the three conservative judges in the 6th Circuit who would have ordered Benson to remove Kennedy from the ballot.
Robert Kennedy Jr. ended his campaign for president and supported Trump. Kennedy then tried to game the ballot process to keep himself on the ballot in states where it would help Trump and remove his name where it would not.
The Supreme Court turned down two attempts out of Michigan and Wisconsin, two important "blue wall" swing states. Gorsuch alone dissented in one case.
The lower courts partially were dubious about Kennedy's two-faced approach. Why would it be coercive to force him to be on the ballot only in certain states? Also, he waited so long, it would be problematic to do so with voting already starting.
The Supreme Court on Wednesday temporarily blocked an order by a federal judge that would have required Virginia to return more than 1,600 people to the voter rolls. U.S. District Judge Patricia Tolliver Giles found that since early August the state had canceled the registration of more than 1,600 voters – at least some of whom were U.S. citizens eligible to vote – under a program intended to remove suspected noncitizens from the voting rolls.
The justices, with neither faction explaining themselves, split ideologically 6-3. Steve Vladeck explains how this is another troubling exercise of the "shadow docket." Technically, only the three liberals dissented on the record.
OTOH, if a conservative wanted not to be counted as going along, they shouldn't do the mostly (especially here, where the ideologically split vote looks bad) useless act of voting in a way only the justices and their clerks know about.
The lower court decided the other way. The stakes warrant an explanation. Yes, people can still register if they have the right information, though it can be burdensome (one person missed hours of work). People who voted by mail and do not realize there is a problem might be out of luck.
Voting is a fundamental right. A federal law was passed to protect erroneous deprivation near an election when there might not be time to fix false positives. The balance should go to the voter here.
Cornell West
Meanwhile, without referring it to the whole court, Alito disposed of a request by Cornell West to have polling places in Pennsylvania have signs telling voters they can write his name in. Sounds a wee bit desperate. Alito: no flag for you.
West is on the list of people who will be counted if voters in New York write in their names for president.
Friday Night Fun
I thought we were done but they decided to drop another order apparently after 6 P.M. on Friday.
They refused a GOP request to narrow options for Pennsylvanian voters who botch mail ballots and try to vote on Election Day. This time, there is a statement by Alito (the circuit judge; joined by Thomas and Gorsuch), explaining that though the case addresses a serious issue, the specific claim doesn't work.
So, the justices can explain when they wish.
Other News
SCOTUS dropped a media advisory regarding the limited sitting in a trans rights case. The Trump Administration would have a different take.
The most important thing on the ballot in November, as people have already begun to vote, is the defeat of Donald Trump.
It would be appalling if Trump, a convicted felon who is unfit across the board, wins. Do we want to be a nation where his message and cause is endorsed by the people at large?
We also need to focus on Congress. Both to act legislatively in a positive way, and to not endorse Trump enablers and supporters, congressional races matter. The path to a House majority includes a few swing districts in New York.
The Senate remains an uphill battle. It would be appalling (less so than Trump winning) if President Harris is handcuffed by Senate Republicans. It is time for change in places like Texas and Florida.
State/Local Races
State and local races also matter.
Attorney generals and local prosecutors have much power. The counting of votes in the presidential election in 2020 significantly turned on state and local officials. States have much discretion.
Ballot measures also are an important means for the public to make policy. Abortion is on the ballot in over ten states. Any number of other issues, including marijuana policy, are covered by such proposals.
New York State Proposal
New York City residents also will vote on six proposals (back of the ballot).
The first is a statewide measure which is repeatedly promoted and/or thought of as a "state ERA" or an an abortion rights measure. It covers more ground:
This proposal would protect against unequal treatment based on ethnicity, national origin, age, disability, and sex, including sexual orientation, gender identity and pregnancy. It also protects against unequal treatment based on reproductive healthcare and autonomy.
Some criticism its wording. Why not directly talk about abortion rights? The proposal (rightly) covers more ground. Abortion rights are part of a wider whole, involving "pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy."
The amendment also covers more ground that that. The measure covers "ethnicity, national origin, age, disability." The first categories expand and clarify existing protections regarding race and color.
The next two expand existing protections in other areas. Without knowing for sure, it appears to me a more significant addition to the state constitution.
I guess it might be argued that too much is being added at once. It also allows specific classifications being "piggy backed." I figure less people are worried about "age' while "disability" will interest a specific sector of the population more than others.
New York City Proposals
New York City residents have five proposals, which are basically the result of mayoral action. There is some mayor v. City Council drama involved. Some argue that mayoral overreaching alone makes all of these provisions dubious.
Mayor Adams is now under federal indictment for campaign related crimes involving foreign deals. Many city residents (I will count myself among them) are not that so happy with his overall reign.
The provisions also involve various inside baseball proposals that seem dubious fodder for the ordinary public. The support of a general equal protection measure is something the average vote can have a basic sense about. These measures? Not so much.
Some form of both of these concerns leads me to be wary about most of the city measures. How important one of more of them will be in practice is far from clear. Nonetheless, as a matter of principle, I am included to vote "no" down the line.
The one exception might be the second ballot measure overall (and first city ballot measure), which involves sanitation. It seems benign:
This proposal would amend the City Charter to expand and clarify the Department of Sanitation’s power to clean streets and other City property and require disposal of waste in containers.
Granting that is unclear if it is necessary to use a ballot measure to do this, the overall sentiment makes sense. Some areas now fall outside of the Department of Sanitation's jurisdiction. It seems sensible to be more comprehensive.
And, if you like the mayor's policies involving new garbage cans and the like (from what I can see, a modest but important good sense policy proposal from Adams), that's another reason to support it.
I have concerns that make me lean toward "no." First, again, the overall process involved here is questionable. I am not inclined to give this mayor the benefit of the doubt. Overall, I would let the City Council handle making sanitation policy, not the public at large via ballot proposals.
Second, the measure involves additional power to regulate vendors. There is a connection there and sanitation. Nonetheless, as the linked article notes, it appears that the measure misleads the public -- if more power to regular venders is at issue, why not openly mention it?
This is the sort of inside policy details that makes me wary about policy by ballot. Sometimes, there is some obscure proposal on the ballot involving state law. For instance, something about regulating parkland. Why is this on the ballot? The state constitution apparently requires it in various instances. Fine if annoying.
There is no such compelling need for these measures to be on the ballot. Again, one or more might not be problematic, or even might be useful.
But there is some debate on the matter. Like voting for some local judges with little clarity on whom you are voting for and often little discretion ("pick three" and there are only three options), sometimes there is too much democracy. That might sound bad but republican democracy involves a balance there.
It is counterproductive in an overall civics sense to have people vote for things for which they have little grounds to make a sound choice. People have a rough idea who to pick when voting for major candidates, especially when they have party-based choices.
Some ballot measures will confuse people. We can reasonably hope that a half-way sound approach will be possible when the people vote. At some point, however, a line is crossed. When we get to:
“This proposal would amend the City Charter to require fiscal analysis from the Council before hearings and votes on laws, authorize fiscal analysis from the Mayor, and update budget deadlines.”
I think we crossed it. Anyway, early voting in New York will begin on October 26th and run to November 3 (also "fall back" time day). Then, you will have a day off to worry about Election Day itself.
Not that it will be the end of things either though except for the stray race it might be in New York.
SCOTUS has its own form of "Friday Afternoon News Dump":
A little past 5:00 p.m. Friday — more than two weeks after the Biden administration’s new rule addressing sex discrimination under Title IX of the Education Amendments of 1972 went into effect — the U.S. Supreme Court finally ruled on a Justice Department request to limit injunctions against enforcement of the rule during litigation.
Sotomayor wrote the partial dissent for the liberals and Gorsuch. The opinions (a short per curiam included) are for whatever reason found on the Opinions page.
As Chris Geidner notes:
On a 5-4 vote, the Supreme Court rejected DOJ’s request — keeping the rule completely blocked in 26 states and hundreds of schools in other states while litigation proceeds, despite the fact the almost all of the challenges only addressed three provisions of the lengthy rule that were aimed at providing protections for transgender students.
Chris Geidner has been on the case as this litigation has been ongoing. It looks like an abuse of injunctive relief arising from another multi-state policy litigation.
Court reform should in part have this on its radar. Gorsuch has (if not always consistently) spoken about his concerns about injunctions in the past. His Bostock ruling suggests he might be more sympathetic on this issue than some others.
(ETA: Theper curiam emphasizes that it is "important" to note that the dissent agrees as to three things. But the federal government does not even challenge two.
It grants the matter is complicated and it can be held up as it is litigated as to those two things. I'm unsure exactly why the partial dissent disagreed with them as to the third thing. Still, it's a limited matter.)
Gorsuch's Book
Justice Gorsuch has a new book out regarding overregulation. He is giving some interviews. For instance, it was reported he told supporters of Supreme Court reform should be careful.
Gorsuch is not simply a knee-jerk jurist. He supports Native American rights, wrote an opinion protecting GLBTQ people, and applies his wariness of governmental power in the promotion of liberal causes from time to time.
I still find his takes overly simplistic and cocksure. And, he is still conservative regarding many important issues, including abortion, the death penalty, and administrative law. He is often a fourth vote in the liberal cases, adding to his limited value.
This criticism of his administrative law principles covers some of that ground, including how he wrongly mixes policy with judicial interpretation. Appellate judges will make policy. The rub is he makes bad policy and refuses to even grant he is making any.
Another analysis targets his simplistic usage of history, including a Madison focus. Madison, a favored founder of different sides, isn't quite the median original understanding guy some take him out to be. Liberal or conservative flawed originalism is still just that -- flawed law office history.
A third analysis argues that Gov. Walz (not a lawyer) helpfully provides a different mindset about civics and republican values. Perhaps so. But, there are wrongminded sentiments from all comers there.
Petitions
A website helpfully keeps track of petitions on the "shadow docket." Two notables concern voting rights in Arizona and another blockage of Biden's attempt at student loan forgiveness via statutory means in place to do just that.
Support for Reform
We can debate specifics. The public supportsSupreme Court reform. Once you are there, the rest is detail, if admittedly critical details.
Democrats and independents strongly support all of Biden's proposals. Republicans strongly support ethics and are more narrowly supportive of term limits and an amendment to override the immunity ruling.
It is good on the merits and as a political strategy. Ultimately, the people's faith in the Supreme Court has diminished in recent years. They saw Thomas and Alito act unethically and at least concerning Thomas probably in violation of criminal laws (disclosure).
The ultimate judgment here is that the Supreme Court has to be taken down a peg. If an institution, be it the Catholic Church (Reformation, anyone?) or a Supreme Court with a supermajority of Catholics, oversteps, reform is not a bad thing.
Some talk about a threat to judicial independence. Liberty and license are not the same thing. Too much independence can lead to tyranny.
We sometimes rely too much on the courts. The meaning of the Constitution is obtained by many institutions and the people themselves. The courts were a major aspect of the 1800 elections.
Amy Howe's SCOTUS term summary is entitled "Roberts court hands major wins to Trump, conservative movement in 2023-24 term."
There is even a "Trump docket" where Trump and his allies were 3/3 (the statutory case warrants a bit of an asterisk pending a determination of how broad it will apply).
Likewise, there was a "war on the administrative state" and wins for conservatives on voting rights and regulating the homeless. The fact it could have been worse doesn't change these things.
One conservative said the term was fine, except for the two Trump constitution cases (not surprising given his long article taking another view in the insurrection case).
On this issue, there were signs of "Trump exceptionalism." Other than that, how was the play, Mrs. Lincoln? These two cases alone are days of infamy.
A major problem this term was ethics. Alito and Thomas had repeated problems. Roberts failed to show up.
And, the ethical guidelines were so lamely respected that only the liberals even cited them to inform the public about why they recused. Senate Republicans cried foul even when the Democrats tried to subpoena Leonard Leo and Harlan Crow. Total fail.
The summer will have little official business. There are summer orders, miscellaneous orders, and whatever news the Alitos will bring us. TBD.
There is plenty of time to discuss the Supreme Court and the courts. Likewise, lower courts will continue to decide things. Or not decide things, if you are Judge Cannon.
Books
I noted that Stephen Breyer's latest book is a trudge. His aim (why else go on talk shows promoting it?) is to attract a wider audience. The book is not written with that in mind. I appreciate the goal. The follow-through was dull and I'm more likely than some to plow through this sort of thing.
His first non-technical book, Active Liberty, did a better job. It was originally given in lecture format. It's a small size book that is around 130 pages. It is a more bite-sized method to inform the public of his overall pragmatic vision.
The Originalist Trap by Madiba K. Denne is another book aimed at a wider audience. It's a mixed bag. She argues we should interpret the Constitution using an "inclusive constitutionalism" that promotes democracy for all. There is no completely objective approach here.
The subtitle is "How Extremists Stole The Constitution and How We the People Can Take It Back." She worked among other places at the Brennan Center of Justice. She also has had teaching jobs. This is her first book.
The book is also mostly serious with some attitude (she is a writer at Balls and Strikes after all). There is a clear audience being addressed. She is not trying simply to be neutral. The subtitle shows upfront what she thinks about originalism.
My approach is to use current knowledge to apply constitutional terms. It is asinine to try to determine the often ill-informed view of people from times past. And, as she notes, the whole thing is applied selectively. The often more inclusive Reconstruction Era principles are too often ignored, for instance. This is not the way to "do law."
The first fifty pages probably could have been more crisp. We then get chapters about substantive due process, elections, and the census. Overall, she discusses how originalism is not the way to go there. Surely.
The last chapter is about fighting to "take back" the Constitution. People can vote (for those who pick judges and sometimes the judges themselves), serve on juries (she supports jury nullification), frame battles using inclusive constitutional ideals, and use legislation with an eye to the future.
Lawyers can strategically use lawsuits, help inform, help activists when they need legal support, and promote inclusive constitutionalism however they can, including in legal education. They can also push to limit the harm. Judges can also use dissents to frame, appeal to legislatures and others, and as a voice for a better future.
Everyone should not be defeatist. A reminder now regarding the election. Mark Tushnet in 2020 (before Barrett) also provided some "popular constitutionalism" lessons which can be helpful. A basic approach here is not to grant legitimacy to Supreme Court rulings when not warranted.
One response to the infamous Dred Scott ruling:
This Dred Scott decision, we need hardly say is entitled to just so much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room.
The Trump immunity ruling is as worthy of respect, except that might insult the wisdom of drunks. Since we can't have good things, the sentencing in the New York trial will be postponed to at least September. It was due next week!
I have said in the past that we should have a long-term vision. Stuff has improved in the last twenty-five years though we have had some backsliding. But, that's annoying.
The Supreme Court had its "clean-up conference" and released some final orders, grants, and statements/dissents.
The first link (relist watch) is a helpful way to cross-check the four grants. We have e-cigarette regulations, the standard to use when testing an Internet age requirement, First Step sentencing issue (two cases), and this fascinating issue:
When a noncitizen’s voluntary departure period ends on a weekend or public holiday, is a motion to reopen filed the next business day sufficient to avoid the penalties for failure to depart?
The final order list before summer break also allows the justices to say some stuff about cases they did not take. Sotomayor and Thomas are the most vocal with Jackson (Sotomayor going along) having one. Kagan joined one involving life without parole for teens.
Alito dissented without an opinion regarding taking a case involving "assault weapons." Alito has less than an average amount of opinions this term. It is quite possible that he lost two cases in the writing.
Among the issues, Sotomayor has a statement regarding the dangers of faulty science being used to prosecute cases. A statement allows a justice to voice concerns or explain their stance while not dissenting from the Court not taking a case for full review.
(Texas recently scheduled an execution arising out of a conviction that might be based on faulty science.)
So, the Supreme Court goes on vacation, the only official thing scheduled being three summer order lists to deal with stuff:
For your planning purposes, summer order lists are scheduled to be issued on Monday, July 22; Monday, August 19; and Friday, September 6, 2024. 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.
Responses
AOC announced that when the House returns from its own recess she will have an impeachment resolution for the justices. I do not know the exact form this will take. Nonetheless, it is a helpful way to keep the issues alive.
The Supreme Court should be an election issue. Such "theater" (as one response handwaved) is politics.
President Biden also had a brief statement, which he made himself to the press, in response to the Trump immunity case. He reminded people of what happened on 1/6. He said that there should be a trial before the election but the Supreme Court (wrongly) made that very unlikely.
Biden reaffirmed the principle (7/2/1776 is the day independence was declared) that we do not have a king. He agreed with Sotomayor's dissent, including the importance of dissenting from the majority opinion.
The bottom line is that it is up to us:
Perhaps most importantly, the American people must decide if they want to entrust the president — once again, the presidency to Donald Trump, now knowing he’ll be even more emboldened to do whatever he pleases whenever he wants to do it.
President Biden looked energetic though when he walked away he looked a bit more frail. I think it was a good statement. A few were annoyed that he voiced restraint after the Supreme Court allegedly gave the president carte blanche. They didn't do that. Would they just let Biden do whatevs?
We don't want a "good dictator." The people in 2020 showed that they wanted a person of character. Biden was correct to contrast himself with Trump on that issue. And, contra some comments I saw, it was not the time to bring up other things such as Hunter Biden or the debate. The statement is fine.
The ruling was bad. It stripped Jack Smith of the ability to bring certain charges and made it harder to bring others:
It ruled that Trump is absolutely immune, and thus cannot be prosecuted, for any attempts he made to get his Justice Department to do sham investigations in order to show that the 2020 election was conducted illegally – the “big lie” that Trump and his allies have pressed since that election and that got him in legal trouble. Those dealings with the Justice Department were the only ones ruled by the Court to be totally protected from prosecution.
It decided that Trump has a tentative form of “presumed” immunity (which prosecutors can try to overcome) by attempting in January 2021 to persuade his Vice President, Mike Pence, to stop the counting of Electoral College votes that made Joe Biden the winner of the Presidency.
Again, certain types of evidence are also withheld from the prosecutor's toolkit. And, just what this will wrought is unclear. We are assured, for instance, that the Georgia case will largely be unaffected. To be determined!
President Biden's statement is a relatively rare direct statement about the Supreme Court itself. This election is among other things about the federal courts.
We are not just talking about nominations and confirmations. We are talking about oversight, reforms, and passing legislation to address decisions. For instance, yesterday's agency decision allowing more challenges can be addressed via legislation.
Heather Cox Richardson in her Facebook chat about the Trump immunity opinion (Substack here) suggests everyone do their part depending on their strengths. One of mine is to provide analysis and details. An informed public is essential. One person complimented a comment of mine as "lapidary." I like that.
We need to reform the US Supreme Court by adding more judges to the bench and rotating the docket. This is a simple idea for a not so simple fix that will require a Constitutional Amendment at a time when we will be lucky to have a slim majority. This means we will have to elect Democrats, in mighty numbers, who are willing to pursue court reform, to do the job. Sadly, based on the political history of our country and the basic nature of human behavior, it will likely take even more to push the dial back to center. Buckle up, this is just the beginning of a very long road to reform.
I do not agree with defeatist people, including talking about the "end of democracy." There is a certain degree of privilege in such comments. How did African Americans think about that issue a hundred years ago?
AV thinks yesterday's decision will help voters choose correctly in November. As we get ready to celebrate the Fourth of July (sit down, John!), let us remember our nation's values, and how people gave blood, sweat, and tears (not necessarily in that order) to fight and defend them.
ETA: The latest news is that the sentencing in the NY case is now delayed until September to examine how the immunity case applies. Total bullshit but again don't tell me how the Georgia trial won't be affected. At least for Trump, very well will be. Ditto for any Trump officials involved.
Various liberals were not impressed by Stephen Breyer's latest book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism.
The book's purpose was to explain his approach to serving as a justice and judge and interpreting the law. His guest appearance on Stephen Colbert (blah) underlines he is writing for a broad audience. He has written some books for specialists. He intended a broader audience here.
If you want a readable (if still somewhat academic) book on his constitutional vision, you should read Active Liberty. It is shorter and covers the important bases. He had a longer one, which was still approachable. His book on international legal disputes also was not bad though some might find it too long.
This book is a slog. His message is important, which makes it unfortunate Breyer could not manage a condensed version. I am sympathetic to his purpose-based approach. I find originalism asinine. Textual (not the same thing) without more is inadequate. And, a book about how the Court is doing it wrong (though he is loathed to admit his colleagues, to whom he dedicated the book, using their first names, are ideologically biased) has value.
I wouldn't suggest this one even if from time to time there are some kernels of interest.
Yes, It's Bad, Even if It Is Not TOTALLY HORRIBLE
Some takes on the Supreme Court opinions underline how horrible everything is. Then, some people respond to argue things aren't that bad. They are pretty bad.
Multiple cases (including one handed down today allowing more time for people to sue) are blows against the administrative state. The opinions were 6-3 and each liberal took turns dissenting from the bench. The administrative state isn't dead. But, surely, as a whole, these cases were a BFD that were part of a years-long campaign.
The 1/6 statutory case was of limited reach. Nonetheless, it was problematic, especially how the case was framed. And, the majority [Jackson tried to show otherwise in her concurrence] helped. The "vibes" can influence lower court actions and how the overall prosecutions are interpreted publicly:
Among other things, that misperception will only further embolden a future President Trump, if he wins election this November, to drop the remaining January 6 prosecutions and pardon those already convicted — even where the charges are completely unrelated to the statute the court narrowed in Fischer. The justices are savvy, smart people who live both physically and metaphorically inside the Capital Beltway. They should have known better.
A reference in today's immunity case even suggests it might have some implications in the Trump trial. The Trump immunity opinion, which is horrible in a variety of ways, does not seal out all means to prosecute him.
Nonetheless, it significantly expanded (with the backing of a majority opinion of the Supreme Court) the reach of immunity from prosecution. Official presidential acts or even those on the edge ("presumptively" protected) now are immune, based on made-up rules. Melissa Murray of Strict Scrutiny underlines the breadth (here Barrett got off the bus):
Another huge aspect of this decision that is not being covered in media coverage--conduct that is protected (i.e. cannot be prosecuted) also can't be used as evidence to prove charges stemming from conduct that is unprotected. Totally hamstrings the prosecution. This is huge.
You know this is bad when the dissents don't end with "respectfully" dissent:
With fear for our democracy, I dissent. [Sotomayor]
In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent. [Jackson]
Sotomayor dissented from the bench. The Supreme Court does not deign to provide audio or a transcript. Jackson dissented from the bench in today's administrative law case, which received less attention but was still important.
To bring the liberal trifecta (Barrett wrote the administrative case & Roberts the Trump immunity case), Kagan had the middle case involving Texas and Florida laws that targeted social media. All nine justices agreed the litigants aimed too high ("facial challenge").
A mixed majority went along with some more of Kagan's opinion, including a takedown on the Fifth Circuit. Three conservatives and to a lesser extent Jackson were careful to note the complexity of the issues. They felt the majority went too far into the weeds.
Kagan crafting together as much of a majority (six justices joined parts of her opinion) was something of a surprise. Many predicted someone else would write the opinion and that it would be more fractured. Anyway, the opinion was the calm in the storm, between two more problematic rulings.
Opinions done. They will hand down a "clean-up" Order List tomorrow. And, then it's summer recess with the usual practice being three summer order lists to quickly address odds and ends that come up before they come back.
Call to Action
The Supreme Court reminds us about what should be our focus. Dwelling on a bad debate performance or hoping for unicorns? Not what we should be doing.
First, we need to win in November.
Second, we need to reaffirm basic values. Justice Jackson's dissent in the Trump immunity case was a philosophical exercise, including the importance of individual accountability and limited presidential power. The administrative law cases also provide us a chance to address basic principles, including the role of Congress and expertise.
Finally, we have to focus on the problems with the Supreme Court. And, this Supreme Court in particular. They have ethical problems. Have too much unlimited power. And, standing pat without statutory and perhaps constitutional change (e.g., term limits) is untenable at this point.
The last part is a long time process. Change also will often require a trifecta (control of the presidency and Congress). We can imagine limited change (e.g., ethical tweaks) without that. Also, control of one house can result in oversight hearings and some pressure.
After a short break, the Supreme Court came back on Friday.
A conference and public sitting (often merely for swearing in lawyers) was on the schedule. We learned mid-week that we would also have opinions though they always say "may" to provide an out if something ever comes up.
The opinions were each short and unanimous. Chief Justice Roberts' first signed opinion of the term (he might have written the per curiam in the insurrection case) was nine pages regarding the Federal Arbitration Act. Sotomayor dealt with a Securities and Exchange Commission issue in less.
Barrett, a busy bee so far, dealt with a Takings Clause claim. Her opinion was also short (under eleven pages). It helpfully summarizes precedent. She has shown some flair in writing crisp and approachable opinions. She also tossed in some humor:
The Takings Clause’s right to just compensation coexists with the States’ police power to engage in land-use planning. (Though at times the two seem more like in-laws than soulmates.)
Five justices joined various concurrences to underline how limited in scope the opinion was. As Gorsuch noted separately, the county government granted the lower court was wrong on a key point. To cite the headnotes: "The Takings Clause does not distinguish between legislative and administrative land-use permit conditions."
On the minutiae front, Barrett included links in her opinion. There is a separate page for URLs to prevent dead links. The justices have not used too many this term so far.
The Supreme Court also announced Tuesday and Wednesday will be opinion days. They are starting to catch up in opinion writing, after being behind schedule.
Subpoenas
Some time back, the Senate Judiciary Committee voted to subpoena Leonard Leo (Federalist Society), Harlan Crow, and a third person (who eventually voluntarily worked with the committee). The subpoenas were part of an attempt to investigate ethical problems, including all those gifts received by Thomas. The third subpoena was dropped. How about Leo and Crow?
Leo -- after the committee voted in November -- finally received the subpoena, which he (as expected) rejected. Senator Durbin (nice floor speech promoting the confirmation of Adeel Magni) did not explain the delay. [Durbin is the Chair of the Senate Judiciary and has been criticized for his soft approach on various judicial matters] Now, they have to have a floor vote to enforce the subpoena in court, which the Republicans can filibuster.
Harlan Crow still has not received a subpoena. Since the Republicans can simply filibuster it, doing so would be mostly symbolic. Still, the Democrats had no apparent good reason to delay things. Overall, this underlines how the current subpoena process is absurdly impractical.
[The below underlines why Steve Vladeck's concerns about being "too partisan" are aggravating. I comment there too.]
The Republicans are full of shit about the whole thing, arguing ethics problems everyone sees is just some ideological campaign against conservatives on the Supreme Court. The problem is that the concern is particularly focused on Thomas and Alito, not every conservative.
Thomas, of course, still has not accounted for most of his free trips on his disclosures, which by and large do not wholly count as “personal hospitality,” given that a private jet or yacht do not count as “facilities” under the reporting exemption.
The link notes Justice Jackson updated some of her financial forms. Kagan and Jackson have explained why they recused. The others have and all of them (except Sotomayor, I believe) have had opportunities to do so since the ethical guidelines have dropped.
And, to the extent ethical rules should be upheld generally, it should be a bipartisan theme. Plus, the insurrection case was a problem all around, though five justices were worse.
Orders
The housekeeping order on Friday regarded an upcoming case involving the Eighth Amendment and the homeless (the solicitor general of the U.S. can take part) and an abortion case involving emergency care (divided argument refused).
The Order List is longer than usual because Sotomayor and Jackson provided a statement (Sotomayor) and two dissents (one each) regarding denials of cert.
Sotomayor provided the statement in a case already undergoing years of a winding road where someone received civil liability for negligence arising out of a Black Rights Matter protest. Someone else hit a police officer with a hard object and the leader of the protest was blamed.
Sotomayor cites a case that arose later that should block the "negligence" test but notes the denial of cert. could arise for numerous reasons. So, might be okay.
(ETA: The case was "relisted" seven times while it was being considered. So, there was likely some discussion behind the scenes.)
Jackson dissents in a case where a coerced confession was treated as a "harmless error." She argues it was wrongly handled, particularly given the importance of the confession on the facts involved.
Sotomayor (with Jackson) dissents from denial in a case where she flags sex discrimination in peremptory challenges of jurors in a capital case.
Kavanaugh (without comment) would have taken a case with this question presented:
Whether federal courts have jurisdiction under 28 U.S.C. § 2241 over a petition for habeas corpus alleging that a prisoner’s unconstitutional conditions of incarceration require release, either because habeas jurisdiction generally extends to conditions-of-confinement claims, or because it at least extends to such claims when the prisoner seeks his release from custody?
We also have (again) multiple conservatives (Roberts, Alito, Kavanaugh, and Barrett) who did not say why they recused from cases (Thomas and Gorsuch did so too in the past) while Kagan (Jackson has done this in the past) again explained why. I do not think Sotomayor had a chance to explain since the ethical guidelines dropped.
This Week
We will also have three days of argument (Mon-Wed) and another conference on Friday. Thursday will be their fun day. Maybe.
