A real bad apple in Biden's clemency barrel (Cash for Kids)

Today, President Joseph R. Biden, Jr. is granting clemency consisting of 39 pardons and 1,499 commutations.

President Biden has made some notable pardon/commutation moves, including involving marijuana penalties. The latest move sounds impressive numerically. There are more to come.

The numbers are somewhat misleading. If you read down the pardon list, you can see just from the first names that we are dealing with people who already served their time. The pardons would therefore be a means to sweep their record clean. Helpful and symbolic but limited. 

One person commenting noted:

The pardons granted by Biden this month are very interesting. The grants were given to individuals who [often] had not served any time - just probation and none had been sentenced to more than 3 years. Many only had probation.

Many of the commutations were "categorical" (see first link) following certain criteria. The latest tranche is largely of this caliber. As the Administration summarizes:

The nearly 1,500 individuals who received commutations today have been serving their sentences at home for at least one year under the COVID-era CARES Act. These Americans have been reunited with their families and shown their commitment to rehabilitation by securing employment and advancing their education. 

The people were convicted of non-violent crimes, not likely to crime again, and so on. Michael Conahan, the "cash for kids" judge, was one of the people covered. This resulted in some disgust, including in the general remarks at LGM. Skimming the comments, I saw one person who generally pushed back, noting the move helped lots of people. 

Trying to weed through all the names to find one really bad apple could have delayed things. [I'm inclined to doubt some searching software or whatever couldn't have picked out his name.] He was not in prison (home confinement) and served much of his time (sentenced in 2011, due out mid-2026). The guy did not simply get a slap on the wrist.

To remind:

In what came to be known as the kids-for-cash scandal, Conahan and Judge Mark Ciavarella shut down a county-run juvenile detention center and accepted $2.8 million in illegal payments from a friend of Conahan’s who built and co-owned two for-profit lockups.

It is quite understandable that the victims and their families would be upset about the commutation. The mitigation is both that he already received a long prison sentence (Conahan is over seventy and was released during COVID since he had multiple health problems that put in more at risk) and that he was not singled out. He was part of a class of people. 

The pardon power is used too sparingly, especially with our nation's overly harsh and inequitable criminal justice system. It is misguided to spend too much time on this singular case. This is not a Marc Rich situation (Clinton) where someone specifically received special treatment. 

I would accept if Conahan was singled out as an exception to the categorical commutation. I also would not be surprised if not every single one of the rest were mundane cases. 

The categorical approach overall is a fair policy. It will likely help a few dubious cases, tempered by the fact that repeatedly the assistance will be overall less than meets the eye. That applies here too. 

Also, if you keep on trying to find "special cases," this guy won't be the only one affected. More marginal cases would be too. As noted by Biden, this policy helps motivate others to follow suit. The overall net value of the process holds true. 

He committed a horrible crime with civil and criminal penalties arising as a result. Will the people who suffered benefit much more if the person who received thirteen or so years of confinement would receive a year and a half more?  

It amounts to a symbolic burden, which matters. People care about such things. Nonetheless, let's be realistic about the net result. We should include the general good these bloc actions bring.  I think the anger and demand he gets another year and a half is a gratuitous feeling of vengeance. 

The bottom line is that we should look at the big picture. We should not latch on to single actions that result in the usual strum and drang. Careful treatment can avoid some unpleasantness. Still, life is a bit messy.  I am okay with this move in context. 

BTW, the Hunter Biden pardon remains valid. Enough with this "hurt Democrats for years" bullshit. 

SCOTUS Watch: Two Down

The Supreme Court set up three opinion days this week to handle around twelve cases (some cases involve the same general subject). They decided to hand down two today. The first:

the case about social media "jawboning" -- the government's communications with social media companies during the 2020 election season and COVID-19 pandemic. The court holds that the challengers -- two states and five social-media users -- do not have standing -- that is, a legal right to sue.

(SCOTUSBlog live blogging summary.) 

Justice Barrett wrote the opinion, which was expected by those who kept track of who wrote opinions from that argument cluster. A bit of inside baseball: the Supreme Court has monthly argument schedules. They generally evenly divide the opinions from each argument. Barrett, who already had fewer opinions than some justices, did not have an opinion from that set. Kavanaugh handled another standing case recently.

The general assumption was that the standing argument was weak. Justice Alito (back on the bench; Gorsuch was out) along with Thomas and Gorsuch though there was standing. They also saw this as a grave free speech issue. It comes off as some Fox News conspiracy.  

[Mark Joseph Stern has more.]

The government flags COVID lies, Facebook or Twitter takes them down, and it's "censorship."  As both liberal and conservative justices noted during oral argument, the government -- including press secretaries -- regularly references stories they deem unfair and so on. 

The open-ended nature of the claims, another Fifth Circuit special, made this an easy case. There is a point that even this Court will say "enough." Again, however, we should not be that impressed with minimal sanity. 

==

The other case was another in a long line of cases (sometimes unanimously) where the Supreme Court applied corruption laws narrowly. SCOTUSBlog summarizes:

The court rules in Snyder v. United States, that federal bribery law does not make it a crime for state and local officials to accept gratuities that may be given as a token of appreciation after the official act. Federal law, the court writes, “leaves it to state and local governments to regulate gratuities to state and local officials.”

(The Supreme Court will then strike down these local regulations on other grounds, including First Amendment or due process.)  

Justice Gorsuch concurs again to toss in his now common comment how he is glad to join his fellow justices (or politely disagrees). He also says any "fair reader" would find the application by the federal government unreasonable. 

Jackson for her fellow liberals disagrees. Jackson summaries: 

involves one such person. James Snyder, a former Indiana mayor, was convicted by a jury of violating §666 after he steered more than $1 million in city contracts to a local truck dealership, which turned around and cut him a $13,000 check.

She argues the majority accepted an "absurd and atextual reading." Jackson continues to be the "keeping it real" justice.

The Court’s reasoning elevates nonexistent federalism concerns over the plain text of this statute and is a quintessential example of the tail wagging the dog.

Mark Joseph Stern of Slate summarized on Twitter:

Jackson, in dissent, says the majority's decision allows state and local officials to accept "rewards" for official acts "in ways that are functionally indistinguishable from taking a bribe," carving a massive hole into the federal anti-bribery law. 

More than one member of the majority are somewhat biased when it comes about line drawing when it comes to bribery. 

==

Kimberly Robinson, referencing other reporting from her paper said on Twitter that SCOTUS

inadvertently released its opinion in EMTALA abortion case earlier this morning. The Justices are poised to allow emergency abortions in Idaho, suggesting the Court shouldn't have gotten involved in the early litigation.

I refreshed the website multiple times and did not see this. So, it must have been there only for a very limited time. I am not sure why they did not hand it down today.  It would have made more sense to hand down three opinions, two involving limited but significant issues and a third having some wider implications. We shall see what happens.

A reporter eventually tweeted a link to the opinions. There are separate opinions joined by nine justices (2-3-1-3), which is weird in such a dismissal. The formatting looks weird. And, there are typos. It does seem like it was not ready to be posted. So, perhaps the release was an accident, simple as that. Other reasons were offered, including that they were waiting for the presidential debate to be over [why release the Biden case then?]. 

A CSPAN producer in charge of the courts posted this statement from the "SCOTUS spokesperson." (I suppose the public information office.) I continued to be annoyed that such things are not posted on the Court's website as a "press release" or "media advisory," to cite two sections on the website. We have to get them secondhand. 

As the Supreme Court turns continues. 

SCOTUS Watch: Order Day (Last of Year)

Case Grant

A grant was dropped on Friday:

Issue: Whether the 60-day deadline in 5 U.S.C. § 7703(b)(1)(A) for a federal employee to petition the U.S. Court of Appeals for the Federal Circuit to review a final decision of the Merit Systems Protection Board is jurisdictional.

The issue sounds technical but was "relisted" which suggests some notable interest. Of course, we don't know why it was relisted for multiple conferences. The word "jurisdictional" means that the deadline would block a judge from taking a case after the deadline. It is fixed by law. 

Sometimes, for instance, judges have the discretion to do something. A judge might find that a normal deadline could be waived for equitable reasons. Nonetheless, though the details suggest the lack of a hearing is unfair, the argument is that the judges as a matter of law had no discretion. This might be bad in an individual case but the system as a whole is a good policy. At least, Congress has the power to think so.  

A separate due process argument is possible but is not at issue. 

Order List 

We also have the last scheduled Order List of 2023. 

The US Supreme Court tossed competing appellate rulings on an executive order President Joe Biden has since revoked that required all federal employees to be vaccinated against COVID-19. Jackson added statements referencing her views on vacatur (see first opinion of the term).

The notable news in today's final scheduled order list is that three justices want to take a case concerning bans on conversion therapy. Kavanaugh simply said he wanted to take the case. Thomas had an extended dissent, including making it a grave free speech issue. Alito had a more limited dissent that addressed the particulars much less.  

[As usual, Chris Geidner helpfully discusses this case and notes that the claimed circuit split -- a basic reason why the Supreme Court grants cases for full argument -- is disputed]

Alito also added a dissent to a rejection of Robert Kennedy's motion to intervene in a case accusing the Biden administration of violating the First Amendment when communicating with social media companies about content moderation. 

Quoting Alito:

This case concerns what two lower courts found to be a “coordinated campaign” by high-level federal officials to suppress the expression of disfavored views on social media platforms that now serve as the primary source of news about important public issues for many Americans. us.

He already has expressed his view that this was some very concerning threat to free speech when it is much ado about nothing. He was joined there by Thomas and Gorsuch. He speaks alone here. 

==

Justice O'Connor 

Okay. So, this is the final scheduled scheduled order list of the term. There has been a policy of granting cert. (full argument) for other cases in a separate order some time mid-December. Next Monday, O'Connor will lie in repose (the public can give their respects) and a private funeral will occur on Tuesday. 

I expect further orders this year.  

SCOTUS Watch

Ethics 

I know the drill. The “all nine justices are very committed to the highest standards of ethical conduct" bit is the standard "we are all pals working hard for the public" line. But, it is a bit much since we are not morons.

If we are keeping track, it seems like Roberts, Kavanaugh, Barrett, and Kagan now have openly supported -- in some fashion -- a formal ethics code that applies to the Supreme Court. 

Kagan is the only one (to my knowledge) who openly granted Congress some role in regulation. I did not listen to her full answer but the reporting suggested it was a general comment. This is overall appropriate but it doesn't tell one much.  

A person who wants to be optimistic here would appreciate Justice Barrett's general support. I personally do not trust the Supreme Court itself to self-regulate. That is not the constitutional system we have. We have checks and balances. Congress has some role in regulating the "good behavior" of federal judges. That is the test. It is not just "life tenure."

Roberts wrote a letter to the Senate saying it was a threat to the separation of powers to voluntarily show up in front of the Senate Judiciary Committee. Justices have repeatedly shown up in front of Congress. The best approach would be to have a liberal/conservative justice show up. 

Anyway, John Roberts won't save us. I thought the Senate was supposed to have a vote on its SCOTUS ethics bill when it came back for the summer. 

Orders 

We had some notable developments in cases worth watching.

[1] Ghost Guns

SCOTUS, without any comment, granted the federal government's request to lift a stay and allowed it to enforce a regulation involving "ghost guns." Amy Howe has the details, which involve specific companies. 

[2] Racial Discriminatory Districting

After the Supreme Court somewhat surprisingly determined rules against racial discriminatory districting have some teeth, there were various districts involved (including the one involved in the case itself) to address.  

The justices (with Justice Jackson with a brief statement) denied a stay to a Fifth Circuit ruling holding up a re-districting case. The order (not explained) is only found on the "Opinions Related To Orders" page.  

Amy Howe discussed it and summarized Jackson's statement:

Justice Ketanji Brown Jackson agreed with the court’s decision not to put the 5th Circuit’s ruling on hold, but she wrote separately (although alone) to stress that the Supreme Court’s decision not to step in was not an endorsement of the appeal court's order, and that the litigation should be resolved in time for the 2024 elections.

[3] More Guns 

On Friday, also on the opinion related to orders page, a request to stop a district court opinion blocking a Missouri "Second Amendment Preservation Act" was denied. The page now cites "BK" in the justice column (Kavanaugh) which seems wrong since that is who wrote something. The case was handled by Kavanaugh; he wrote nothing. 

Thomas without comment said he would grant the stay. The law purports to block federal laws invading the Second Amendment. Gorsuch with Alito dropped a brief statement, with a charming reference to the case letting Texas' SB8 abortion ban law (pre-Dobbs) stay in place.  

[4] Biden Social Media 

After four o'clock in the afternoon, perhaps after the justices kept track of the news that (after three votes where he got less and less support), Jim Jordan was out of the Speaker of the House race, we had more news.

This is a convoluted case with various ups and downs involving stays and so on. But, the basic point was that the district court (restrained somewhat by the Fifth Circuit) interfered with the Biden Administation's efforts to stop false information from being spread on social media. 

The justices took the case for full argument. Alito with Thomas and Gorsuch publicly dissented. Alito partially complains that the unexplained stay violated standard rules, including not showing a compelling need. He's not consistent here though he might be taken more seriously if he was.

But, the dissent also clearly frames things in a way that assumes the conspiracy theory against the government is accurate:

At this time in the history of our country, what the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate.  

Most unfortunate. Your neutral concern is touching. A major issue here is not only that it is far from clear that the government did anything wrong. The decision below amounts to a prior restraint on the government. The balance of equities, and sure, explain it, seems pretty clear there.  

[Okay. This time the order is dated on the chart "10/23." Someone is having a case of the Fridays.]  

Congress

While the House of Representatives was without a speaker, the Senate operated normally. They went back to confirming judges. Also, Dianne Feinstein's committee slots, including on the Judiciary Committee (her replacement took her spot there), were re-filled without controversy. 

There was a fear that Republicans would block it, helped by the fact they refused to allow a temporary replacement when she was out. But, that is not the same thing, and Republican senators have their seats become vacant too. There really was not much of a likelihood they would have denied a new senator their equal rights as a senator. It would be institutionally extreme in a way that individual senators would find troublesome.  

Sen. Butler, who like Stephen Colbert is out with COVID, has announced she will not run for re-election in 2024. That was a prime reason another possible placeholder, a black woman congressman in her 70s, was not chosen for the position. Good luck holding the fort. 

Term Limits

Sen. Sheldon Whitehouse has been strongly critical of the Supreme Court and has brought receipts. I am not gung ho, however, of his support (with some other good senators) of a term limit bill. It's obviously merely symbolic now. So, since I support them overall, it is okay. 

Nonetheless, I would focus on ethics, including Steve Vladeck's suggestion (in a paywalled One First) of some sort of inspector general, who (which) would provide oversight with teeth (what this could entail would be open to debate). The summary connects the bill with ethics, but I think it is a bit of a reach. I think it takes the eye off the main ball.

Any benefit would be long in coming, this bunch will be here for a long time. What would have a more immediate effect? A term limit bill with court expansion, the latter part not constitutionally problematic. This brings to mind the FDR expansion bill (I'm about to read a book by Robert Jackson, which discusses it) that tied it to those justices over 70. If there was no justice over seventy, there were no justices added. It in that fashion was a means to encourage a seventy-year-old retirement age. 

The argument that court expansion won't happen at this time is no less convincing here than for any other piece of legislation that looks to the future. The term limit bill is definitely not going to happen though there is a lot of public support. It also has the added constitutional problem ("for good behavior"). So, why not combine the two?

I am willing to accept the timing since Sen. Whitehouse is not suddenly not going after the Supreme Court on ethics. I do support term limits as constitutional policy. The blurb in the summary that the Supreme Court was supposed to merely "administrative" originally is somewhat dubious and besides the point (things change as the government grows). However, overall, I think something like an eighteen-year term is a fine idea.

I still think other issues should be front and center. For instance, I recall that there was going to be a vote on the ethics bill after the summer break. This never happened. What happened to that? Durbin is still out there hoping Roberts will do something. Eye on the ball, people. 

==

As you can see, even when there are no oral arguments, stuff is happening that relates to the Supreme Court. It is after all the head of the third branch of government. Anyway, no order list next week is scheduled, but orders might drop related to the conference. An execution is also scheduled. 

SCOTUS Watch: The "FU" Day

It is often a troubling thing in some fashion when I see a strong Roberts Court opponent feel optimistic. But, there have been numerous lower court opinions defending the rights of GLBTQ people. Anti-trans laws in particular have been so blatantly wrong that you almost figured the legislators didn't think they would survive review.

I am pissed off but will grant there is room for optimism.  On some level, you have to grant it.  Two reasons.  First, it is a survival mechanism to not just look at the bad side.  Second, there is a standard rule that few things are all/nothing.  A person being executed will be quite final.  But, completely bad is hard to come by.  We even survived four years of Trump.

The Supreme Court this term has repeatedly restrained itself.  The reasons can be proposed. It might be a Roberts Court "picking your spots" and "playing the long game."  The "wins" can even be long-term not so great for the winners ("wins" here being for liberals and/or sanity).   It might be that the advocates are pushing for the fences too much.  It might be some wariness about the criticism.  It can be a range of things.  

This is not to say that the Court is suddenly fine.  Alito and Thomas showed themselves to be ethically tainted and Roberts showed himself unwilling to do basic things to restrain them or reassure the public on the integrity of the Court.  Assurances lead to what?  Only Kagan even deigned to attach explanations for recusal.  Thomas and Alito could not even release their financial disclosures on time.  Yes, mild credit that the rest did so, and we got a bit more clarity on things.  

We also apparently didn't just make Alito upset.  Roberts in his student loans opinion tossed in this:

It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. 

By the way, this is a bit rich coming from the conservatives. They regularly strongly dispute that such and such is something that the judiciary is supposed to be doing.  They have every justification for thinking that. There are different ways for courts to be wrong. They can be wrong on the merits and for broader reasons.  That is, trying to even decide things they do not have the power to do.  This is a basic dispute. 

So, what is the issue?  A bit sensitive, are we?  Roberts for Court also tosses this bit in, pressuring Kagan to grant the point:

We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception such misperception would be harmful to this institution and our country.

This is in an opinion that on bullshit grounds stripped President Biden of the power (at least in a certain fashion) to forgive student debt. Kagan for the liberals argues that:

In every respect, the Court today exceeds its proper, limited role in our Nation’s governance.

Now, it is unclear how much non-disparagement is going on here. What does that word mean?  I think the assumption here is that the dissent is basically not (to quote Kagan) making it "personal."  Some of the Thomas vs. Jackson stuff in the affirmative action case or the "head in the bag" dig by Scalia in the same-sex marriage case sounds a tad bit personal.  

The word also means "of little worth."  I think Kagan's dissent does some disparaging of the worth of the majority's argument.  Still, she has to reassure the abuser here that they are reasonable sorts.  Nothing personal, John!  See?  I said "respectively" dissent!  There is a certain degree of unease in this whole affair.  This is to reassure someone who compared Biden's use of power to the French Revolution.  

[A curious aside.  Alito had one more opinion, a short one to unanimously toss one of the student debt cases on standing grounds. It is a sort of little extra bit you toss to the junior partner.  It is just one final example of his overall basic absence this term for whatever reason.]

Talking "disparagement," Sotomayor for the liberals didn't toss in a "respectfully" in her dissent in the wedding website case. The basic aspect of this case -- which the dissent for whatever reason didn't actually emphasize much at all -- is the whole thing is a sham. More evidence of that came out recently.  To quote Kagan again:

It blows through a constitutional guardrail intended to keep courts acting like courts. 

Sotomayor -- including in an extended dissent from the bench we are not allowed to listen to unless we are one of the handful who is there -- emphasized the harm to the GLBTQ community:

LGBT people have existed for all of human history. And as sure as they have existed, others have sought to deny their existence, and to exclude them from public life. Those who would subordinate LGBT people have often done so with the backing of law. For most of American history, there were laws criminalizing same-sex intimacy. 

As Prof. Anthony Michael Kreis (who recently celebrated New Hampshire legislation to ban gay and trans panic defenses) noted:

There is no limiting principle in 303 Creative. Any service that has a remotely expressive component can result in a denial of service under anti-discrimination laws. Nobody is safe from bigotry in the public square.

My assuring thought (not that I am actually in any really affected) was that the opinion would cover limited ground.  As he notes:

If courts could be trusted to be exacting in their review and restrained in determining what public accommodations have an expressive component and those that do not, the decision in 303 Creative might be met with a collective shrug-but therein lies the deep and worrying danger.

This is suggestive of why Sotomayor's dissent is so strong.  The criticism often tosses an emphasis on how the people here are "Christians," which is again a rather depressing unfair burden to many Christians who do not agree with this result.  Many do not feel the need to target gay people.  

They also realize that if they serve the "public," well, they might be required to serve all comers. This is apparent even to many "conservative Christians" though that label is more accurate.  Also, the rule here is not just limited to them though yes they have a lot of power in the current environment in various respects.  

One more comment from the law professor who often is fun on Twitter:

One unfortunate downside of today's decision is that there will be much greater emphasis on civil rights boycotts and protests of businesses. The anti-cancel culture crowd, by chipping away at public accommodation anti-discrimination law, will fuel the social dynamic they decry.

There will be a lot more litigation to clarify what this case means. The case again is a sham case. The Supreme Court received thousands of requests for action and handed down under sixty full opinions. To use this barely there case with its law school hypo question and not provide much clarity on much more including what "speech" truly entails and a lot more is so much bullshit.  It is a rank abuse of its power for policy preference. 

---

Today's the last day before the summer recess though as Steve Vladeck emphasizes in his new book they still are technically in session for the 2022 Term until the first Monday in October.  The summer recess might start at noon but keep that in mind. Three summer order lists are usually scheduled.  And, then there will be odds and ends.  

We have a "clean-up" order list, including a chance for some justices to say stuff.  A few cases are granted for full argument, including one involving the right of those under a restraining order to have a firearm.  

These "clean-up" orders provide some behind-the-scenes tidbits. Sotomayor has a statement, for instance, flagging a concern. Other conservatives feel a need to respond to emphasize that she grants the matter is not ripe for review.  Alito is all Alito ("This Court does not lobby government entities to make preferred policy decisions") in a counterproductive fashion.  Okay, so you do, right?

Sotomayor has a tradition of flagging criminal cases that she feels are troubling, at times full dissents, and other times statements of concern that explain why she agrees with the denial but still is concerned.  She used to do this at times for last-minute death penalty litigation but that seems to have stopped.  She also has again taken on qualified immunity, which the Supreme Court seems to have left to Congress to handle after rejecting multiple cases a term or two ago to take it up.  

Jackson (with Sotomayor) dissents from not taking a case involving Mississippi maintaining a Jim Crow regime that strips voting rights for those who commit certain crimes.  Felony disenfranchisement was flagged as a problem in 2000.  Many states have thankfully addressed the issue in various ways.  The people of Florida were more recently blocked by a Republican-backed workaround to limit a ballot measure involving those with lingering fines.  There is a lot more to do.

To quote Amy Howe on Twitter, one more notable bit: 

SCOTUS denies review in Kincaid v. Williams, involving whether the Americans with Disabilities Act covers gender dysphoria. Alito (joined by Thomas) dissents from the denial of review, calling it a "question of great national importance that calls out for prompt review."

I am wary of when this Court will have to directly handle GLBTQ issues again.  Roberts also announced a few court personnel retirements.  I believe at least three members of the Court should retire.  President Biden in an answer to a question on the affirmative action opinion noted that this is not a "normal court" but in an interview feared talk of expansion would politicize it.  That bit got the appropriate degree of ridicule.  

==

What's next?  Well, a couple executions are due in a month or so. Sen. Durbin assured us that ethics legislation will be the focus after the July 4th holidays.  I foresee that being filibustered when it gets to the floor.  To be continued, including Biden's workarounds.  Keep on confirming judges!

SCOTUS Watch: Opinion Day

The Supreme Court in a short unanimous opinion by Gorsuch held for a deaf student in an education law case. Limited issue but accounts that I saw noted it's still important. One tidbit: Gorsuch, regularly cocksure, notes at one point that two approaches were credible, but one was more reasonable.

To piggyback on the first veto, Biden also signed his first laws out of the new Congress. One is a Senate bill that "requires the Director of National Intelligence to declassify certain information relating to the origin of COVID-19." The other is the stupid override (fourth in 50 years) of a D.C. law, the criminal justice reform.

As I noted, that is a bad call but should be put in perspective. Hopefully, a second attempt can be made. Again, it wouldn't have been put into effect for a couple of years or so anyhow.

SCOTUS Watch: Long Conference Edition

As the Supreme Court prepares for a new term, they had a "long conference" this week to deal with pending matters from the summer. And, other matters.

Arguments: The Supreme Court announced they will have in person oral arguments, public included, masks optional. Otherwise the building will be closed to the public. I don't know if there is spacing in the courtroom, but there is not much seating for there to be too much. If there is oral argument seating, not sure if you can't have the building itself (with more chance of social distancing) open. I guess it is not too important.

The Supreme Court will continue live audio, which various law related people was very happy about.  I think it is fine, but again, it is not to me that exciting over waiting a little while.  Yes, it is a level of openness and transparency. They cannot edit the content and you have it right away.  I have not really read, however, them editing it any, and listening to an old "partial birth" abortion case, I even heard a protester yell left in.

The big improvement would be if they allowed video or even added opinion announcement audio.  They did not say if they will turn to opinion announcements, which they have not had since COVID began (and the pre-COVID opinion announcements of that term are not available).  Not having that this term (which ends on the first Sunday in October) was really notable, especially the lack of public dissents from the bench.  

Justice Jackson: There are thirteen federal circuits (federal, D.C., 1-11), each having a circuit justice (Roberts deals with the feds and the 4th, Alito his old 3rd and ideologically suitable 5th, Kavanaugh has 6/8, and the rest have one each, largely their old haunts, with Kagan having the 9th). 

Some use this to suggest we should have thirteen justices, but we aren't talking circuit riding or anything.  They don't do much except dealing with a limited number of emergency appeals, referring notable ones to the whole Court.  Roberts and Kavanaugh dealt with such a matter this week that is on the orders page.  At times, decisions are made by circuit justices that are only on the docket page of the case. 

Breyer used to be a judge in the 1st Cir., so logically had that.  Roberts filled in after he retired.  Now, Jackson, who clerked there, has that slot.  

[Justice Jackson and Dr. Patrick Jackson on the plaza after her investiture (Friday morning) Amy Howe on Twitter.  Amy Howe also co-wrote an account, which has a lot of details, including note that Justice William Douglas' fourth wife -- who I think now is around 78 so still younger than him at his death in 1980 -- was in the room.] 

The other notable Jackson moment is her formal investiture, a ceremonial affair involving Chief John Marshall's chair and everything started by Chief Justice Burger, who liked pomp and ceremony.  She was, of course, already sworn in after the end of the regular term.  This is a ceremonial matter and one that unlike the swearing in is more private, no video provided.  

Orders:  Along with the order announcing the new circuit assignments, there was one citing the solicitor general being allowed to take part in the oral argument in two cases, including a copyright matter involving Andy Warhol.  It is one of the "fun" cases of the new term that people are watching, in part since it is not likely to cause a lot of pain and suffering.

Ginni Thomas: The January 6th committee interviewed Ginni Thomas, who reportedly tried to get multiple state legislatures to reject the official counts in 2020 among other things.  It is good to get her on the record, especially with a lot of people talking about her, after reading article after article about it. 

She made "yeah sure" comments like Clarence Thomas not caring about politics or talking to her about her actions at all.  The whole thing is symbolic on some basic level since she has no real power and doubtful she has much influence.  Yes, she gets into the room and such since Justice Thomas is her husband.  And, yes, it was dead wrong (and impeachable) that he continued to take part in Trump election related cases. 

Do we really think she or Clarence Thomas had any significant role in the whole election theft attempt?  It is not trivial on some level, yes, especially when we are talking a member of the Supreme Court.  This also factors into the concept of appearance of impropriety.  We can note this while also being reasonable about what exactly their role was specifically.  

Relatedly, there is a Politico article about justices' spouses and proper disclosures.  When Ginsburg became justice, there was the well reported fact that her husband decided to change careers to avoid conflict. The article notes that Barrett's husband went another way:

A year after Amy Coney Barrett joined the Supreme Court, the boutique Indiana firm SouthBank Legal opened its first-ever Washington office in Penn Quarter, a move the firm hailed in a 2021 press release as an “important milestone.”

The head of the office, Jesse M. Barrett, is the justice’s husband, whose work is described by the firm as “white-collar criminal defense, internal investigations, and complex commercial litigation.”

Continuing evidence about the trade we got. Oh this too:

But if anyone wants to find out whether Jesse Barrett’s clients have a direct interest in cases being decided by his wife, they’re out of luck. In the Supreme Court’s notoriously porous ethical disclosure system, Barrett not only withholds her husband’s clients, but redacted the name of SouthBank Legal itself in her most recent disclosure.  

The article provides some other red flags involving spouses, but that is rather blatant.  There are recusal policies that the justices at least say they follow (again congressional legislation applies in a narrow area though the justices never admitted it legally applied to them).  This is the sort of appearance of impropriety that ethics rules address.  

Like "Clarence? he doesn't care about politics!"  there is a point when this is just piss you off blatant.  I don't care on a basic level here that it is somewhat symbolic. The "the rules don't really apply" concept does not stop here.  There is a general "fuck you, the rules don't apply to us" concept that touches important matters too.  

And, when Kagan publicly starts to be upset, Alito is out there whining about it.   

===

To answer that call, liberal leaders must size up the sources of political strength that undergird the Supreme Court majority’s audacious demolition campaign—defenses that are formidable but by no means invulnerable.

Finally, there was a useful analysis on how Democrats can try to address the current Supreme Court majority.  The analysis  does not provide a bunch of specific policy proposals.  It addresses targets, including a "political bulwark of the rightist justices’ pursuit of their agenda."

[1]  The 6-3 majority itself seems stuck in place unless a strong Democratic sweep, probably for two election cycles, allows them to "eliminate or degrade" it.  I'm unsure if this is totally true. Still, the key point here is to know your target.

[2] The court majority supports (unpopular) Republican political goals.  Democrats can use politics (e.g., the unpopularity of the Dobbs anti-abortion ruling) to make the Republicans less gung-ho about certain things.  I would add maybe there will be more of an opening in the lower courts, including to get some Biden picks confirmed. 

[3]  Public ignorance of the Supreme Court's agenda.  Citizens United was a major avenue of public discontent here and Sen. Whitehouse especially has been on the case of how "dark money" is behind nominations and choices of cases.  The public also figured abortion as a whole was safe.  We now see abortion rights is not. 

[4]  Perhaps the most vulnerable according to this analysis is the idea that the Supreme Court is above the fray, ruling by law instead of politics and ideology.  The presence of justices that were "swing" or did not purely match ideological/partisan issue voters were key here. Also, the way the latest people were confirmed, some of their off the court habits, Ginni Thomas, etc. 

The ultimate question is what this "constitutional conversation" and "de-legitimization" will get you.  Will the justices (and judges) be more wary at certain points to go too far?  Will the public accept more challenging of the courts (including lower courts) in certain respects?  Will the public accept more regulation or other court reforms?  Something else?

The analysis is not really about answering those questions.  But, there are questions that can be made. It is hard to imagine how to address the Supreme Court.  It is helpful to look at things from various sides.  

Masks No Longer Necessary On NY Transit

I have been vaxxed and boostered (twice), but still do not really feel comfortable not wearing a mask on the bus. The rules there seem to be regularly followed. I don't use the subway much, but the few times I did, seems many more did not use masks there.

Now, they won't have to do so. I understand (including as we have yet another booster) but don't quite agree with the move. And, I agree the new sign is ridiculous. What is the point of showing people wearing masks wrong and in effect saying "oh well, you be you"?

How to Talk to a Science Denier

A local library had a cart with free books, which I noted was a thing these days for NYPL. This one had multiple copies of "uncorrected page proof" copies, which sometimes winds up on the nearest library's free cart, but this was a case of multiple copies of different books. The subject book, now out for real, was one of these books. Here are multiple reviews. 

How to Talk to a Science Denier: Conversations with Flat Earthers, Climate Deniers, and Others Who Defy Reason.  I found various good things in it though was not interested enough to read through the whole thing.   The reviews cover much of this ground. 

For instance, there are various factors involved in science denial: cherry-picking evidence, belief in conspiracy theories, reliance on fake experts (and the denigration of real experts), logical errors, and setting impossible expectations for what science can achieve.

[These are general concerns in various respects, in part since humans are not scientific minded robots. We have some design fails.  One example is a blog often noting court opinion analysis is really not important, the results are.  But, then, apparently how Kennedy in a purple prose way badly defended gay rights.]

The title is suggestive.  Yes, the author thinks "talking" helps. He [a research fellow at the Center for Philosophy and History of Science at Boston University] rejects some earlier accounts that trying to convince deniers would simply be counterproductive in each case, that they will just bury into their positions even harder.  There are ways, he says, to combat things here.  

A basic thing is to understand your opposition. Why denial?  It is often a coping mechanism to deal with a scary world or to fit evidence into a certain ideology.  Having "secret knowledge" also might make you feel special.  It often is tied to a specific "identity," which is often but not always (GMOs, some anti-vaxxers) conservative in nature.  

[It is hard to suppose that liberals cannot be science denials. I know liberals as a whole are pro-science, but they also often are more about equality, against corporate power, and so on.  Denial can seep in here, including conspiracy theories and fears of certain science that can become extreme.]

The author suggests a compassionate, engaging approach. Listen.  See what their beliefs are and what would allow them to change their mind. Help them out with such things as charts, graphs, and friendly conversations about basic facts.  Help promote basic science knowledge, and flag not just facts, but techniques used to mislead.  Like the debate book, education is important here.

And, be honest -- admitting we do not know the answers, but that should not be used crudely, in irrational ways against science, can help build trust in the end.  You should use inoculation (guarding against the future), intervention (dealing with current problems), and acting overturning belief.  

This is all difficult in the real world.  Some people (the book makes some suggestive implications "denial" as a whole overlaps -- such as white nationalists, but ultimately pulls back to science)  just seem like lost causes. They can be be offensive (being wrong and an asshole about it is so charming).  And, you have to be skillful.  Debaters of creation scientist, like atheists who debate Christians, have to have special skills. 

Over the years, I have tried to directly engage with certain people on blogs, answering their arguments. This is often a tiresome thing since unreason is so much easier.  You don't have to do careful research and phrasing, which can take a lot of time and effort.  Nonetheless, I did (and to an extent still do) feel it useful (or at least it pleases me, also allowing me to put out my own views) to directly respond to people in detail.  

And, I try (though it is sometimes not easy) to avoid simply sneering at people.  I am no saint, but I don't actually find that a pleasant thing to do on a basic level.  Again, I realize my limitations. On Twitter, I do a lot of grievance tweeting.  I often don't put out a "you can engage him" vibe.  I do try repeatedly to show nuance.  I do try also to put out information without a heavy handed agenda.  Up to a point. 

And, yes, I think science denial overlaps with other things, especially since we are often in some sense talking about social science anyhow.  So, the book can have broad value.

Order Day

The Supreme Court released an order list on Monday that was mostly mundane. The one exception was a dissent from cert by Justice Sotomayor in a death penalty case. I'll wait on that since two executions are scheduled later this week. Mark Joseph Stern (of Slate, sometimes a tad over the top voice) summarized one order on Twitter:

The Supreme Court vacates a lower court decision that had blocked the Trump administration from approving work requirements as a condition of Medicaid coverage. The Biden administration revoked approval, so SCOTUS says the case is moot.

Later on, a separate order (with the three High Federalists dissenting) on the "emergency docket" (shadow docket) -- again thanks to Amy Howe for adding details -- rejected another attempt to put on hold a military vaccine requirement. One thing flagged by Mark and others is that the claims in part make political opposition to the mandate into a religious claim:

I find it difficult to see how a fundamentally partisan hostility toward the COVID vaccine can form the basis of a valid religious objection. But Thomas, Alito, and Gorsuch are the philosopher kings, not me. https://t.co/owrTHhPLOP pic.twitter.com/nn5fggMuMc

— Mark Joseph Stern (@mjs_DC) April 18, 2022

The politically motivated or at least timed nature of the "religious" claim is notable if we still actually care about "sincere" being a check on religious liberty. A law professor once flagged it is. Uh huh. In practice, it has little teeth, mostly applied somewhat ad hoc in patently dubious claims. 

Maybe, this is one such claim, though the district judge (religiously?) seems not to think so. But, I think that is likely a limited guide, especially in these times.  You take what you are offered, but me personally, I think compelling state interest and public interest (such as public accommodations and here the military) should be major factors.  

==

Religious faith alone is being used to broadly and the net result are arbitrary lines (see the Hyde Amendment).  This sort of blows into  Taking Back the Constitution: Activist Judges and the Next Age of American Law, which is discussed as part of a symposium on the blog he sometimes post on without (even when the blog had them) allowing comments.   

Most of the book is familiar stuff about how conservative judges operate, including how originalism is a conservative "shibboleth" (one of those fancy words ... turns out the idea is that two ancient tribes were fighting and they said that word differently ... so it's a sort of code word to see who your friends are) and so on.  

The book also seemed almost too optimistic about the limits of judicial power (this was before RBG died but it surely was a possibility to have 6-3 Court, which would change the dynamic).  It did seem to assume abortion rights were on the way out -- even with a 5-4 Court -- though you know, it wasn't seen as HORRIBLE that it would happen.  Guess there is a certain matter of fact about that, but you know, would a woman be so blase?

Still, overall, the first part is useful, if somewhat boring ... since I'm familiar with the whole thing.  The last two chapters were more interesting since they provided some possibilities for progressives in the future.  A basic approach being a sort of popular constitutionalism where the people overall say what the Constitution means.  If "health care is a right," well maybe it darn well should be.  Federal courts aren't god.

The book didn't really cover the next step -- what would happen if courts challenged this?  It suggested that local governments might accept it, which would make it "law" in practice.  The book also suggested some sort of popular constitutional convention.  This would at least put pressure actual governments.  

I saw a discussion on C-SPAN of A Constitution for the Living, regarding a thought experiment of actual conventions happening every twenty years or something (taking Jefferson's idea  of constitutions being for the living and running with it).  Sounds interesting though the library doesn't seem to have it.  Like the idea of fixing the Senate without amendment, this all is a thought experiment, but so was overturning Roe/Casey not that long ago.

===

There are a few arguments (they seem like technical issues, but surely, none of these cases have no effect ... well most of them, at least) this week. There is also an opinion day on Thursday.  We will see how that goes as does two scheduled executions. 

Supreme Court Watch

The April arguments, the last set of the term, will continue the Big V policy of limited court presence and live audio.

The Supreme Court also submitted to Congress proposals for court procedure, which Congress can accept, deny, or (likely) edit in some fashion. This includes: Rules of Appellate Procedure Rules of Bankruptcy Procedure Rules of Civil Procedure Rules of Criminal Procedure.  Technical stuff, except if the procedures matter to the lawyers involved.

The weekend religious holidays pushed the conference back to Thursday (4/14) with a order dropped providing various bookkeeping type orders for upcoming cases.  There will be an Opinion Day next Thursday, orders on Monday, and two weeks of oral arguments (finishing up the term).

For whatever reason, I came across the "Powell memo," the in some quarters infamous marching orders by Lewis Powell (then not a justice) to big business to control messaging. On some level, there is nothing too corrupt or anything about it; it really is a lesson to any group on how to frame one's argument. Of course, one can dispute the message here.

But, it is a lesson that humans make arguments, and they frame their messages. We should keep this in mind and ensure this is done in an aboveboard way, and not let certain groups dominate the discussion. How to do that is the rub. 

[I originally had this as part of the last entry.  I split the two, adding content to both entries.  Perhaps, we won't have anything new until Monday.]

Joe's Eclectic Thoughts: Weekend Edition

Book: I saw the author of Smashing Statues: The Rise and Fall of America’s Public Monuments interviewed on C-SPAN, being interested enough to check out the book. (I checked it out of the library.) I read the Sandy Levinson book cited in this capsule review, including an update. I also read another book, talking about Confederate monuments. All three are somewhat of a piece, focused on what one might call "bad monuments."

All three are worthwhile (yeah, the other one slips my mind at the moment) in their own ways. The book here is a bit misleadingly named. The book is largely about Confederate monuments with a bit about others such as the knocking down George III's monument.  But, even in that respect, it isn't really comprehensively about bad ones.  The main focus in about Confederate monuments though there is (to be fair) a chapter on Christopher Columbus.  

[On that subject, there was traditionally not too far from me -- if I went to public high school, I was zoned for it -- a school called Christopher Columbus High School.  We also traditionally had a Christopher Columbus parade down the main block near me.  The school broke into smaller schools.  COVID made the parade not a thing recently.]

I would have liked a more complete book about monuments (celebrations) and memorials (mourning something).  Why not a chapter on some "good" monument, or at least one that has so far met the test of time, such as the Vietnam Veterans Memorial?  Or, something like the Statue of Liberty?  If the book is meant to be about those that are "smashed," even so -- this sort of thing will provide a comparison.  

Still, the chapters on various memorials -- to be fair there are ones on matters other than the Confederate monuments -- and monuments are pretty interesting. One thing of note is her argument that Confederate monuments partially was a way to stop rising labor unrest, especially when it was biracial in nature.  Bits like that adds new details.

===

Let's Play Ball! Injury to an ace and another try manager-wise? Check! Still, we have some reason to hope this year is a bit different, with a career manager in place, a stud ace signing, and some good additions. I think two time cheater Cano should have been gone, but early on at least (it is the Nats, the predicted NL East whipping boy) he seems to be a promising addition too, especially with the DH (boo) giving him more playing time.

The first two games of a four game series versus the Nationals already had some drama.  We had deGrom out, so Megill started (well), and then Apple TV (not too well apparently) had the second game.  And, as if that and Scherzer (vs his old team) was not enough, yet another hit by pitch had some drama (we got a bit of video on Twitter for those who wasn't watching).  

The game was delayed twice -- lighting issues and at the end (which could have been avoided perhaps without the first delay) some rain.  Mets 2-0, top of the NL East.  So it begins.  Nice to see GKR back and I listened some on the radio, which has its charms.   And, Howie Rose (cutting back apparently this season after a health scare) is getting pretty good at Twitter, giving the daughter involved in the biz a run for her money.

===

Academy Awards: I didn't watch, there was some drama -- as noted -- when Will Smith (who from what I can tell is not a "bad boy" type, but I don't pay much attention) hit Chris Rock for making a joke about her lack of hair (a result of a medical condition).  At the time, the Oscars let him stay, and Smith then came on the stage after winning an award.

That was not ideal.  But, if a tad late, the Oscars has penalized him by banning him from the awards for ten years.  Will Smith himself resigned from the academy, basically meaning he doesn't get a vote.  He can be voted for, since that is a separate matter.  That might confuse a bit, but it makes sense (mostly).  He did not somehow corrupt the acting process or something (such as if a director was caught abusing a cast member).  

I think the thing to do was address the matter in the moment. This is not totally bad though.  For one thing, the tradition is for the Best Actor winner to be a presenter the next year.  So, this sort of thing matters in a message way in that direct fashion.  (It matters more there to the degree his absence is specifically notable.)  

And, often -- though it is unfortunate -- it is hard to do things "in the moment."  Ideally, Will Smith should have left, though just what happened there is subject to conflicting reports in the coverage I saw.  Some talk of him being "asked" to leave, but not too strongly; maybe not?  Unfortunate there was not some more lag time, perhaps before him winning. 

Is ten years the right length?  Maybe a bit much, but you cannot handwave physical violence against presenters.  These things sometimes will include presenters or categories for things that might in some fashion will invite the unhinged to do something.  Plus, violence in general should be strongly rejected.  

And, we are not talking prison time here or something. 

===

Border Issues: One thing a repeat ask at Jen Psaki's daily White House press conferences (saw news she is leaving soon, but after a few questions -- which she waived off -- about talks with MSNBC, saw/heard nothing ... though she seems to be highlighting support staff more lately as if in preparation) is Title 42.  A bit of immigrant/COVID inside baseball.

I have not gone into the weeds too much here, but have seen some criticism of the Administration continuing a Trump policy here.  The idea is that there is a health need -- COVID (Big V) -- to be more strict regarding migrants wishing to come in, resulting in over a million (some duplicates, but it is still a big number) being blocked. Better be necessary, right?

The link provides some helpful analysis.  Jen Psaki basically had a mantra that it was a health measure.  But, the article argues that the actual health officials at the CDC never really thought it was necessary.  So, there is some idea that was a makeweight argument.  Now, there are plans to end it, and (shocker here) Republicans (and some others) are worried.

Republicans, of course, are regularly against any number of COVID restrictions.  When it is a border matter, largely involving Latin Americans, suddenly they change their tune.  Repeatedly, health experts are wary about the laissez faire policies of the Republicans in this area.  HERE, we have actual evidence (a recent court case reaffirmed this, though upholding the policy as a matter of law, excepting those at risk of torture or the like) from experts the policy is unnecessary.  

The reactions underline why the Biden Administration is loathe to have a more liberal immigration policy, even to the degree that in various respects would be a good thing.  JUST how much criticism they warrant is far from clear to me, but that sort of real politics reality also should be factored in. 

===

Blogger Issue: Twice now, for some reason, Blogger has blocked my  posts.  One, regarding the bike death of a media critics, was shortly thereafter found to be okay.  I didn't closely read the email to see what the alleged issue was.

Another, an earlier version of my latest SCOTUS post was allowed too, after a somewhat longer review.  The first time for some reason "spam" was the problem.  I then posted a short post summarizing it, with "Blogger" in the title and a link to the content policy. THAT was blocked!  

I reposted a new version, taking out a couple embedded tweets and some other formatting.  THAT was allowed.  A recent short Judge Jackson post had an embedded tweet.  I have been doing this since 2003 without one case of having something blocked, including linking to porn.  

I'm unsure why there is an issue here, but it's annoying, in part since there does not seem to be a way for me to simply ask Blogger what the issue here.  There is a "help" page with FAQ material and an option to post questions.  If I'm blocked, I rather have a chance to ask directly.

SCOTUS Watch: Orals, Hearings, and Opinions

Okay this week was busy ... the confirmation hearings are handled separately.  The orals were somewhat in the weeds and not too ideologically divisive, but did involve multiple international law issues as Jackson noted the Supreme Court didn't handle it that much.  Next week has one involving a quirky federalism issue.

Order List: The Order List was cited as "quiet" by Amy Howe. The one notable thing was a statement by Alito (with Thomas) involving an "intern at a legal-aid clinic run by a religious non-profit, applied for a job as a staff attorney at the clinic." The non-profit's views on sexuality and his church habits led him to be denied the job. 

Was this appropriate?   Basically, there seems to be an attempt by the religious conservatives on the Supreme Court to find the right facts (this is less troubling than if a florist or donuts shop did it) to provide an opt-out of anti-discrimination laws.  We are not talking about "ministers" here, a teacher at a religious school, or decisions involving who joins a church.  

It's a step beyond.  Maybe, it's tricky.  I might be open for states to have the discretion to give wider exceptions.  I am wary, however, of a national rule that requires the state to have one. I do not trust this Court to apply the right rule. In fact, I think Kagan and Breyer might have went too far in so-called "ministerial exception" type cases.  Or, whatever this is.

Shadow Docket Time:  On Wednesday, a stay request regarding congressional maps for Wisconsin was rejected without comment.

OTOH, a state map, a dispute decided by a state supreme court opinion with a Republican nominee going along with the liberals, was blocked by a per curiam, unsigned shadow docket ruling.  Who was involved? We don't know exactly.  We know that Sotomayor and Kagan dissented publicly. 

This "publicly dissented" business annoys me. The general assumption should be -- at Bloomberg SCOTUS journalist Kimberly Robinson noted this too -- should be silence means consent. It really amounts to a 7-2 opinion.  Now, logically, Breyer would likely have agreed with the two, but who knows?  There might be some reason he in effect wanted to stay silent, including with the nomination of his replacement pending.  

The result according to people I respect to give a good sense of these things is "bizarre" and blatantly wrong on procedure and substance.  The whole thing comes off as gratuitous and makes me more angry at these assholes.  I'm annoyed at Breyer for just silently going along as well.  

Thomas Ill:  Thomas had flu-like symptoms last week and could not go to the oral arguments (three days).  A press release was released that "Justice Thomas will participate in the consideration and discussion of any cases for which he is not present on the basis of the briefs, transcripts, and audio of the oral arguments."  

The press release (dated last Friday) says that he "expects to be released from the hospital in a day or two."  It is unclear that this happened or what exactly happened.  So, not surprisingly, some people wanted more.  

TMZ reports someone asked Breyer about it while he was walking somewhere and he thinks that Thomas is "fine."  Okay.  I actually thought, without knowing more, he is.  Is this mistaken? It might be.  But, making assumptions when 70 something people having medical issues that linger on is standard stuff is in my view not the best call.  They will be made.

And, then on Friday, there was a report that Thomas was released from the hospital.  Maybe, it is helpful to be a bit more transparent, especially when other news raises extreme possibilities. Even now, a request (says SCOTUSBlog, per Amy Howe, my regular source for news here) for more details was denied.  I wonder if we got anything off the record. 

(SCOTUSBlog noted: "Justice Clarence Thomas was discharged from the hospital on Friday morning, the court said."  As is often the case, this public message to reports was not posted on the website.  Then, Amy Howe wrote a more detailed -- though there aren't many -- analysis.)  

[Ginni Thomas material moved to a separate entry.]

Opinion Day: Two opinions on Thursday, only one justice dissented between them, but one is an issue of some importance.

Censure: Stolen Seat Guy had a short unanimous opinion that basically is a form of error correction.  CA5, the Southern circuit that gave us such charms as the SB8 litigation, gave a wide protection to free speech involving censure.  It is unclear how often this sort of thing actually comes up.  

Furthermore, as is regularly the case in the Roberts Court, the actual thing decided was limited. As SCOTUSBlog summarizes, the nine held: "a member of a community college board of trustees does not have a viable First Amendment claim arising from the board’s purely verbal censure of him."  

The opinion notes that a proper challenge was not made to the non-verbal restrictions such as a limited inability to run for board office positions or access to certain funds.  In some other case, the opinion said a stronger censure with teeth might be deemed unconstitutionally bitey.  Reasonable.

Death Chamber Religion: To quote SCOTUSBlog again: "Ramirez v. Collier, the court ruled 8-1 that a Texas death-row prisoner is likely to succeed in his claim that he has a right to have his pastor audibly pray and physically touch him while he is being executed."

[This is a longer business with sixty pages of opinions. Both the majority and dissent each are about 22 pages. The concurrences around ten pages combined.  The headnotes are five pages.]

This was a case that addressed a general issue that arose repeatedly and after around a handful of shadow docket opinions (going various ways) on the topic, they finally took the case on an accelerated basis for full review. And, then -- including as executions continued (though a few were held up) -- took months to actually decide it.  One wonders why.

Roberts wrote the opinion. Sotomayor wrote a short concurrence to talk about the right of prisoners to bring claims (a major issue for the dissent).  Thomas leads with the details of the crime and the idea Ramirez was abusing the system.  But, the general question here is not unique to him. There are many prisoners with serious religious concerns and line drawing will arise.  A case to provide clarity is a basic role for SCOTUS.

Kavanaugh (partisan lying rape-y guy who likes beer) wrote a bit longer concurrence to talk about how complicated the issue is, including (Jackson's assurances aside) that "policy" decisions were made by the Court here.  And, yes, the issue is complicated, and the prisons should have some discretion.  The presence of ministers and vocal prayer seems generally okay.  The touching part to me was more iffy.    

[A bit of inside baseball. Kavanaugh is the only one without a signed opinion.  There is a reasonable chance he wrote at least one of the per curiams.]

The issue here is largely statutory since there is a federal law protecting rights of prisoners and spelling out the rules of prisoners bringing challenges.  There are also constitutional concerns overhanging it all, including equal protection of all religions and religious liberty.  Religious liberty involves some action, that is part of "exercise," and dealing with that in the modern administrative state is a tricky issue.  

There are many cases where claims to me seem inappropriate, including when it wrongly clashes with discrimination laws in public accommodations.  I also am wary about evenhandness. We need more than an assurance something is "traditional forms of religious exercise" to cite the opinion today. The weighing here is also detail specific. An evenhanded application can be tricky.   As to that, I'm still not completely sure the rule against touching while someone is being executed is unreasonable.  

Still, this all seems fairly reasonable, and the opinion leaves some ground for states to balance things out and use different rules.  Thomas does not seem to be against the basic substantive balancing.  His opinion is more regarding abusing the challenge process.  I am a bit surprised neither Alito or Barrett, for different reasons, did not concur separately.  The time taken might be a matter of negotiation between the eight.  

More Shadows: To quote Jimmy Hoover of Law360 (tweet), after the two opinions dropped there was a miscellaneous order.  His summary: "Supreme Court temporarily blocks New Jersey from withdrawing from the 60-year-old Waterfront Commission Compact with New York, which polices the shipping port shared by the states."   

Steve "Mr. Shadow Docket" Vladeck notes this action in the original jurisdiction docket is "remarkably rare," if not perhaps "especially controversy."  The matter is of local importance.  If it is notable, and it surely seems to be, New York deserves a damn explanation.  

I saw someone said that they should explain themselves whenever they make a ruling. That is simply too extreme. They make lots of run of the mill rulings, including not taking thousands of cases. But, they only single out a few miscellaneous orders.  They can explain themselves here.  

Conference Day: The justices (and whatever some should be called) met for their fairly usual Friday conference today. Order List on Monday.  They also announced (as they now regularly do some time on Friday regarding the upcoming week)  will be one or more opinions next Thursday.  

Shadow Docket: Biden Wins! As basically expected, since at least up to a point they are wary about being insane when it comes to vaccines, the Supreme Court 6-3 granted President Biden's request to overturn a lower court hold up regarding making vaccination decisions as commander in chief.   To wit:

The district court’s January 3, 2022 order, insofar as it precludes the Navy from considering respondents’ vaccination status in making deployment, assignment, and other operational decisions, is stayed pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought.

Kavanaugh provides the sole explanation about a page and a half long which (reasonably) references the usual regard giving to military discretion and all that.  There is little reason why the rest of the Court could not basically say the same thing, more or less.  

[Kavanaugh didn't provide some absolute rule though did speak of "extreme" respect for military decision making.  Note the Biden Administration didn't say vaccine exemptions didn't apply to the military.  They made a more limited argument. Plus, we should be wary of some absolute rule.  The military can make mistakes.  But, a high test is valid.]

As Ian Millhiser noted, the Supreme Court should have clearly sent a message here.  The shadow docket, however, sends vague ones, especially when (like here or in the NY/NJ case) they provide absolutely no explanation.  This will help invite the usual suspects to continue to cause problems, if doing so a bit more carefully.  A good case can be made that a line was crossed here that warranted something more. 

Thomas without opinion dissents. Alito (in part comparing this to the case just decided not involving Navy operations as compared to a limited context involving executions, that would not actually stop an execution) with Gorsuch dissent.  Thomas dissented in that case, so that might be one reason why he doesn't go along.  Amy Howe in her summary notes that even Alito hedged somewhat on the reach of his argument. 

And, yes, I'm going to say 6-3, even if we only know on the record the opinion of four of them. 

Odds and Ends

The bar on entry to Canada for the unvaccinated will apply to playing the Toronto Blue Jays. And, the player won't get paid either. People managed, if they were open about it and took certain precautions, to be unvaxxed in the NFL. This might be interesting. ETA: Note that such rules also apply in New York City. Let's see for how long.

Mayor Eric Adams had some ups/downs, including various times when he came off as a clown for mouthing off. But, though I still don't think it was wrong to note his public violations of being a vegan, he did some good things promoting good nutrition. A sign of the complexity he brings. It also shows the opening for nudges in the right direction.

Good interview on Strict Scrutiny Podcast on the limits of textualism, including how Gorsuch misquoted the guest's own writings. She is right to call out the fake restraint. The "we are restrained unlike those liberals [at times, et. al.] who make shit up" is bullshit.

THE QUIET BEFORE: ON THE UNEXPECTED ORIGINS OF RADICAL IDEAS

This is an interesting book about ideas ("This book should be read by anyone interested in thinking" says one blurb) that helpfully is broken down into various easier to consume case studies. The book is not complete -- the first case is in the 17th Century and many are in the last decade or so -- but covers a lot of ground. I also found some chapters more interesting than others.

The first chapter covers a lesser known science minded sort that was particularly interested in longitude.  A key moment was to make sure various people from a range of locations observed the same event to help measure distances.  

Of special value here was not just printing, but a reliable and fairly quick postal system.  A book on Genghis Khan and the Mongols also cited their reliable postal roads.  

These two things allowed for a conversation as did someone who was able to properly engage with a range of people.  This goes to another matter addressed by others -- having certain people who are useful conduits.  

This was also seen in a 20th Century example, where an educated black intellectual used a newspaper in the British Gold Coast to form a community that could develop into an independent black nation.  Likewise, there was the samizdat, or self-publishing, as a means of resistance in Soviet Russia. 

A somewhat different issue was important -- though again having the right leadership mattered -- with the Chartist movement in 19th Century England. This was named after the "People's Charter," or a broad attempt to have the people use the old British right to petition to develop a sort of popular movement.  This would eventually develop into a strong enough interest to pressure the government and was a first step to wide suffrage.

The later chapters emphasized that there is an importance to some means to have a small scale community where ideas can truly develop. Something like Facebook or Twitter alone is too open ended, with protests at best being sudden expressions of dissent.  The problematic example of Egypt is flagged -- a bad leader resigns, but long term change is a lot harder.  

This small scale community of interest to flesh out ideas was present for good (COVID scientists) and bad (racists in 2017).  This is contrasted with a method of bring out discontent (the "futurists" in early 20th Century Italy, the Black Lives Matter protests) that expresses displeasure with the existing times but not necessarily being productive in the long run.

We also get a snapshot of the early days of what might be said to be the pre-Internet in the mid-1980s.  This includes a reminder that it wasn't just some free reign affair.  Shades of message of The Cult of the Constitution.  

One value of the book is that you get various snapshots through the ages and world, which helps inform you about things that many might not know much about.  I didn't really care about the futurists (who came off as assholes), but it was an interesting snapshot all the same.  And, when Mussolini popped, well there was also clear historical importance.  

I started to get more bored with the book in the last few chapters.  This might partially be me or that the situations were more familiar.  All the same, it was an interesting and very readable bit of intellectual history.  So, net success there.