Supreme Court Watch: Welcome to 2025 Edition

TikTok briefing continues but the Court overall taking advantage of the holiday. Still, there is some court stuff to discuss. It is 1/3 of the government after all.

Jimmy Carter

President Carter was the only full-term president who did not appoint a Supreme Court justice. He still put his stamp on the federal courts:

In addition to the 41 women judges Carter named to the federal judiciary, he appointed a record 57 people of color to the bench, including those who would become prominent federal appellate judges such as Leon Higginbotham, on the Philadelphia-based 3rd Circuit; Amalya Kearse, on the New York-based 2nd Circuit; and Damon Keith on the Cincinnati-based 6th Circuit.

President Biden, correctly, was proud of his judicial picks. He followed in the footsteps of Jimmy Carter. 

The Supreme Court also declared:

In recognition of the President’s announcement of a National Day of Mourning for James Earl Carter, Jr., the Chief Justice has ordered that the Supreme Court building will be closed on Thursday, January 9, 2025. 

President Biden also declared the same for executive departments. Retired Justice Breyer was originally appointed to the Court of Appeals by President Carter. 

Amanda Tyler has a nice essay focused on his views on religious liberty with a Baptist touch. 

TikTok/Trump

A miscellaneous order was dropped on New Year's Eve granting the petitioners divided argument time in the TikTok cases. The various sides are keeping busy during the holidays to be ready for 1/10.  

There are two cases involved here. The order means that each party will have a chance to have their say.  The two cases involve TikTok itself and a group of people who use and benefit from the platform. 

Federal legislation bans TikTok in the United States on January 19 (interesting date) unless they are separated from China. The president can delay this but President Biden has not. The Supreme Court, especially given the nature of the law, sped along an appeal and will have oral arguments in early January.  

Chris Geider and Steve Vladeck are two people who have reported and analyzed the legal developments. Also, as usual, Amy Howe is a person I go to for a basic summary of events with less personal opinion.

One notable development is a brief from the president-elect, which Vladeck in particular finds problematic. One thing that bothers Vladeck, other than the legal arguments, is the "puffery" (Geidner):

President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government.

The author of the brief is the presumptive solicitor general. A few things. (1) Yuck. (2) President Biden is the current president. His "electoral mandate" was more sizable than yours. (3) Vomit.

I'm embarrassed and disgusted these assholes are going to be running the federal government. Professor Vladeck shows how it is not just distasteful but bad lawyering. They are bullshit artists. We know this.

Meanwhile, a federal appeals court upheld E.J. Carroll's judgment that held the President-Elect sexually assaulted and defamed her. 

Chief Justice End of the Year Report

"Trump re-elected. Mission accomplished." No, that wasn't the theme. Would have been truthful.

Chief Justice Burger started the release of end-of-the-year reports. Each Chief Justice had their own style. Roberts has a specific theme, tossing in some historical vignette, and then ends with a few pages summarizing the case data for the year. 

The 2024 report begins with King George III threatening judicial independence. We then have a paeon to an independent judiciary. Criticism is acceptable but a few things are not:

(1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments.

There is a tired feel to this standard line, including this statement of what "intimidation" entails:

Public officials, too, regrettably have engaged in recent attempts to intimidate judges—for example, suggesting political bias in the judge’s adverse rulings without a credible basis for such allegations. 

Is this a subtweet to people like Senator Whitehouse, who has provided evidence? Sometimes, bias is wrongly alleged. Other times, it is well-founded. The lack of a binding ethics code is still a problem. 

The reference to bots and such is concerning though too thin to fully judge the problem. And where is the modern-day evidence of defiance? 

Chris Geidner has more, including an apparent reference to Judge Aileen Cannon being treated unfairly. Allegedly. He argues the report is a bit chilling. I found it more tiresome on the first read.  But he makes some good points on why it's more.  

The last pages of data do not seem too noteworthy. Others can analyze the data. The conservative Supreme Court helped Trump win. They well deserve a lot of criticism. Do it accurately and peacefully. 

Some people will note that we want an independent judiciary in the times of Trump. It will often arise in lower courts, which have binding ethics codes. Judicial independence fits in a wider system of checks and balances. Roberts provides a slanted version.  

Odds and Ends

The Supreme Court has recently sped along the preliminary bound copies of its opinions. The process has already begun for this term. There were a few opinions left from last term. Checking, it is done now.

Note how each opinion has a volume and page number. The process is not done for 2023 orders.

Justice Breyer (retired) will hear some lower court cases next year. O'Connor and Souter (last in 2020) also did that. Tom Clark did so back in the day.

The new (completely Republican) Congress begins at noon on January 3. Senator Bob Casey, who lost re-election, presided over a pro forma session on the 30th. We will also have someone replacing Vance. 

So, Ohio will have two new senators. 

SCOTUS Watch

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

Order List 

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

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

Other Orders 

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

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

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

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

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

Broadway Debut

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

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

Lower Courts  

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

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

The letter provides multiple refutations. Chris Geidner has more. 

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

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

SCOTUS Watch (and Other Legal News)

Order List

Another yawner of an Order List.  Alito didn't take part in a couple cases without explaining why. Only liberals deign to do that. We will have another Order List on Monday, after today's conference.

Various Actions 

On Friday, another order was announced, and the court denied a request for a stay. From the brief: 

The Warden seeks recall and stay of the Sixth Circuit’s mandate because the judgment of that court orders an imminent new trial in an attempted-murder case.

Separately, the Court took two cases to examine the contours of congressional power to delegate while adding a question to possibly avoid the question on procedural grounds. Thus, it handled two of the relists covered here. 

SCOTUS also scheduled some oral arguments for February and March 2025. Time marches on. 

DIG 

The Supreme Court announced that there might be one or more opinions today. There was one:

The writ of certiorari is dismissed as improvidently granted. 

That was the whole thing. In the past, at times, the Supreme Court (or specific justices) has explained why they thought a case was improvidently granted. The trend is not explained. The case:

Involves the 2015 Cambridge Analytica-Facebook data breach and considers whether Facebook’s disclosures to investors before the breach was public improperly downplayed the risks that data breaches posed to the company and its stock price.

The summary did not suggest that the case was apt to be tossed. We are left to guess why they in effect said, "Our bad, we shouldn't have taken this case."

The result is that the case can continue against Facebook/Meta. The lower court ruling remains the only precedent for the Ninth Circuit with the Supreme Court not settling the question for the nation. 

Lower Courts

The Senate had little to do in recent months other than confirm people. The Democrats still had numerous judges to confirm in the lame-duck session as we await the bad guys coming into power in January.  

Why leave any slots on the table for Trump to fill? President Biden did not even nominate nearly thirty district court judges, all in red states, leaving me to think the problem was blue slips. 

Blue slips allow home state senators to block district court nominees. This is not all on Biden since the blue slip policy is a Senate rule. Dick Durbin can keep on bragging about all the judges they confirmed but it still holds Trump had three justices. 

The link says thirteen judicial nominees are pending (Biden just nominated two), which is cutting it close -- they are due to close shop mid-December. Again, it is unclear why it should be. They had one real responsibility, and it wasn't confirming lower-level executive officials.  

Meanwhile, multiple appellate nominees are for some reason (you lost the Senate & the alternative is Trump picks, WTF is wrong with you?) opposed by enough people to be in trouble. 

Net result? A deal where four appellate slots go to Trump. Expletive deleted. Biden gets more district judges than Trump but not appellate judges and justices. Plus, the chance to provide a little light in conservative circuits is denied. 

A horrible result occurred. The Democrats decided to compromise in a key area of power they retained for a few more weeks. Rubs me the wrong way. 

ETA: Chris Geidner breaks down the numbers in a somewhat more positive fashion, granting he opposes the blue slips procedure that caused those district court vacancies. He says Chuck Grassley -- who btw is over 90! -- says he will keep blue slips for now. We shall see. Past experience makes me doubtful.  

What of the four appellate judges? He notes two can (will they?) revoke their plans for senior status. One was in a circuit where Democrats already have five appointees. And, the last one involved the horrible Muslim appointee being blocked. 

Do I feel better? Marginally. To toss it in, a well-known Fifth Circuit advocate cited his concern that the Democrats didn't fill all of those district slots.  

See also, Balls and Strikes, which takes a somewhat on the same page position though still says "bummer." I agree. Every appellate slot should be fought for.

Trump AG Pick 

Trump himself granted when asked that Matt Gaetz as attorney general was something of a longshot. And, sooner than expected, he's out. 

Still, I did not think he was going to be confirmed. I won't assume this is grand news. Take it as a victory. Trump can't do absolutely everything he says he wants. I guess that is useful to show now and then. 

But, be clear, it was not some grand victory. The ultimate choice very well deep down might have been the expected pick even inside the Trump camp. It also might help others be confirmed, the senators having the luxury now of having some limits.

Trump went with Pam Bondi, a more serious pick, who has actual experience (and is also from Florida). She is a Trump loyalist (took part in the first impeachment), checks off the MAGA points (including election denial), and has various skeletons but not on the level of being a sexual predator. 

Asking for an execution to be delayed for political reasons or not giving a couple their dog back or an apparent quid quo pro involving investigating Trump come off as not great, but you know, it's Trump's pick. 

She did a lot of news commentary, so she checks off Trump's need for people he sees on television. 

She also continues the trend of Trump stocking the Justice Department with loyalists, particularly former defense lawyers. Sessions and Barr were not great but were not former defense lawyers for their new boss.   

Bondi is basically the best you can hope for. How much she will politicize the office remains to be seen though she might be marginally better than some alternatives. She was Florida's attorney general, so has some official credibility.  

Senator Graham slavishly praised Trump for the pick, reminding people what a weasel he is. Lindsey Graham, that is, since Trump is best cited as some other sort of animal. Like Marco Rubio, she is a reasonable pick in context. Expect some Dem votes. 

Yes, you pick your battles. As a senator, I probably would vote against her. OTOH, I can understand a few Democrats deciding she meets a bare minimum following the principle presidents have the right to pick their own people within limits.  

Also, people, either way, can flag problems and ask questions during her confirmation hearing while using more effort and stronger language against others who are less fit and more dangerous overall.  

Of course, Matt Gaetz aside, dissenters have a limited amount of power. This underlines why the Democrats are so wrong in not using their power now, while in control, and leaving so many judges for Trump. 

SCOTUS Watch: Welcome Back!

More On Chief's Report

Since there was not much activity this week -- things will speed up next week -- it's a good time to add a bit to my discussion of the Chief Justice's End of the Year Report.

(Well, there is now, but I started this earlier.) 

The theme was the usage of artificial intelligence. In this context, it made sense that he mentions humans are not machines. A comment calls to mind his infamous comment during his confirmation hearings about calling balls and strikes: "legal determinations often involve gray areas that still require application of human judgment." 

The umpire reference was far from new. For instance, James Madison spoke of the Congress being an "umpire" to settle competing sides. Thomas Jefferson spoke of the law of nature being an "umpire." The implication that there is not much discretion here is another matter that sports fans will find amusing (among other things).  

The other thing to flag there is that language is a tricky thing. The word "umpire" has various nuances. He was craftily using the word in misleading ways. This also shows that people in the past could use a word that is somewhat like the word used today. They can use it noticeably differently too.

Steve Vladeck also flagged that John Roberts changed the policy of his predecessor (and former boss). Rehnquist used the report as a type of policy statement, engaging with Congress. Roberts used the report as more of a one-way statement to address certain themes. 

Vladeck is correct that something is lost in this transfer. Roberts refused an invitation to appear (or have someone else appear, including two justices of different views) in front of the Senate Judiciary Committee. This was in part deemed a threat to the separation of powers. A bit of bullshit.

There is a possibility of engagement between the branches. It does not end with confirmation hearings. Members of the executive, for instance, testify to Congress. The courts are not such rare birds above the fray that they can never directly engage with the other branches. 

Roberts' hubris -- I will use that word -- was a lost opportunity. He has some actual concern for the sanctity of the Supreme Court but was unwilling to step up. The resulting disdain for the ethical guidelines voluntarily provided (which in various ways weakened the rules) is a self-inflicted wound.  

Chief Justice Charles Hughes went another way when court expansion was in the air. Not every colleague was a big fan, but he found a way (with the help of liberal Justice Louis Brandeis) to answer the challenge. His predecessor played an important role in legislation and the building of a court building, which involved engaging with Congress. 

A yearly report is one way, which can be done softly, to engage with Congress and the nation as a whole. Roberts does so in his own fashion. Nonetheless, more engagement would be a good idea and not improper. 

The report also had a silent memorial to the recently passed Justice Sandra Day O'Connor. The photo at the head of the report is a courthouse named after her. The photo makes it look quite modern looking. 

Docket Updates 

The Supreme Court has "docket pages," which provide updates on developments of pending cases. This page includes various briefings, which can be useful to get a sense of what the case is about. 

There is a page to do a docket search (type in a party or docket number). Court watchers find this very helpful. We would find it more helpful if orders would provide links to the docket page. Now we have to look up cases separately. 

A Supreme Court report flagged a new feature. Again, it would be helpful if things like this were promoted more, including by providing a statement on the press release or media information page. Anyway:

Users can also sign up to receive email notifications of activity in pending cases. To do so, visit the docket page for an individual case and click on the envelope icon that is just above the case number. You will be asked to enter an email address. When you click “Subscribe,” an email will be sent to you with a link for you to confirm the correct email address. Once you click that link, you will receive email notifications every time there is a new filing or action by the Court in the case.

(The chief's report also noted there is a phone number you can call for case information: 1-866-222-8029.) 

Court watchers, particularly reporters, have spoken of constantly updating docket pages to find out the latest. The Supreme Court sometimes drops "brief orders" (in the lingo, even if the orders are totally boilerplate with no real content; the phrasing makes it seem like they said something specifically more than "denied"), including granting or rejecting a stay. 

Nonetheless, the orders usually are quite limited, and a lot of action takes place only on the docket pages. The docket pages provide more insights. John Elwood provides a "relist" watch" to talk about cases taken up in multiple conferences. 

We still do not know a lot about what is going on behind the scenes. For instance, an NYT feature on the development of the Dobbs opinion provided insights into how justices gamed the system to delay handing it down. Still, the docket page provides some helpful information. An email notification system is a helpful resource. 

Friday 

A vague reference was made on the daily calendar found on the Supreme Court website:

The Court will convene for a public non-argument session in the Courtroom at 10 a.m. 

Seating for the non-argument session will be provided to the public, members of the Supreme Court Bar, and press. The Supreme Court Building will otherwise be closed to the public.

One court watcher online suggested to me that this was a time to swear in people to the Supreme Court bar. Sure. The reference to the Supreme Court Bar is right there. Nonetheless, why cannot the Court simply say so? 

They also had a private conference and an order list is due on Monday. John Elwood notes they have over four hundred petitions to examine, a particularly large number. Welcome back, guys and gals. 

They released three orders. One provided some bookkeeping regarding various cases. One granted Trump's petition for review in the Colorado insurrection case (February oral argument). And, one granted a case involving the limits of an Idaho abortion ban, including a Biden Administration guidance involving emergency situations. 

A Fifth Circuit case just was handed down that blocked said guidance. Chris Geidner notes that the district court ruling blocking the ban was stayed. So the law will be allowed to take effect. The oral argument is in April. No public dissents to that stay. The abortion pill case is also pending.

Maybe, they shouldn't have stripped abortion rights. 

Next Week 

We will have that Order List, which is usually not too exciting. Then, we will get back to oral arguments, for three days next week, and two (after the holiday) the next. 

Plus, with only one opinion (a short punt) released so far, they should get around to them too. 

And, remember, if you want to learn more about all those cases referenced in the Monday Order List (a list of court actions), take the docket number provided, and look them up. 

Meanwhile ... The Israeli Supreme Court blocked a move by the government to limit their power. The vote to decide the matter was not close. The merits were very close though as discussed here, not quite as close as some say. 

The decision should be understood in the context of the constitutional system in that country. Constitutional review is a common approach worldwide. Nonetheless, how different countries go about it is often the rub. We should spend more time examining how that works. It provides helpful insights.

SCOTUS Watch: Welcome to 2024

2023 to me seemed to have gone rather quickly. This might be a reflection of my own life. Still, it does seem that things somewhat sped along. Maybe, it is a reflection of how 2024 with the presidential election and Trump's legal stuff was "in the future." We all were in a waiting game.

Let's see how 2024 goes. Meanwhile, the end of the year at the Supreme Court means the "Year-End Report of the Judiciary." A standard thing for the Chief Justice is to include some cutesy historical snapshot that links up with the year's theme. 

For instance, this time there is a bit that takes place during the New Deal that highlights the still novel efforts to bring electricity to rural homes. BTW, (to flag a term new to me): "A declamation competition is a public speaking event in which participants deliver a memorized speech with emotion, conviction, and rhetorical flair."  

The discussion (tied to artificial intelligence or AI) appears a bit longer than usual with three photos (two of justices on typewriters and computers). It's fairly interesting. Also, as usual, the last section is a summary of the federal  courts' workload, including "unusually large number of filings were associated with an earplug product liability multidistrict litigation."

Notable also is a drop in the Supreme Court and court of appeals (smaller number) overall workload. There was an increase in district and bankruptcy courts though there was a slight decrease in criminal cases. ("Civil cases filed in the U.S. district courts increased 24 percent and cases filed in the U.S. bankruptcy courts increased 13 percent.") A chunk of the workload only changed by a small number. The numbers are not divided by circuit.

The thing that stood out in 2023 for SCOTUS was ethics. The poster child of bad ethics was Clarence Thomas. It was such that Samuel Alito (who people assumed leaked the Dobbs decision) was at best a dishonorable mention. They released their ethics code. (I hear and concur with your snide remarks.)  They remain tainted. If (as assumed though it is not totally assured) they find a way to overturn the Colorado Supreme Court's ruling on Trump's disqualification, who really should give them credibility?  

And, abortion rights are still in crisis, with an important abortion pill case being heard this term. Fuck you, Supreme Court for taking away reproductive liberty. You are such assholes. 

==

There will be a conference and non-argument session (perhaps related to swearing in people to the SCOTUS bar) this Friday. An order list is scheduled for the following Monday. And, then we will be back to oral arguments. The next execution is scheduled for the end of the month. The notable thing there is that it might be the first nitrogen gas execution.  

Time marches on. 

Supreme Court Watch: Reasonable with a Mix of Concern

The first of maybe three opinion days gave liberals some positives but a shade of concern. How much? To be determined.

The first was a splintered (including splitting the liberals) decision involving the rules of personal jurisdiction, which is an important legal matter.  Since five justices didn't agree with all of the opinion, particularly Alito leaving open some other grounds in another case, it's also not totally clear just what was decided. 2023 term avoids bigger results again.

Kagan crafted a majority in a dispute involving the rules to determine liability for "true threats."  The justices were concerned about line drawing during the oral arguments. They were here.  Sotomayor and Gorsuch thought Kagan's approach was not speech friendly enough.  Barrett and Thomas were the only ones who fully dissented.  Was too much rope given to possible online harassers.  Prof. Mary Anne Franks thinks so.  

Chief Justice Roberts had the biggest case: the "independent state legislature" case.  Three conservatives thought the case should have been deemed moot.  Roberts (in ways some who liked the results deemed iffy) found a way not to.  He also rejected the strongest form of the doctrine. State constitutions very well can determine the reach of the legislative actions in federal elections.  Good result?  

Well, there is a poison pill left in which gives federal courts more power to determine if state courts went too far.  A vague rule is raised without the matter being truly addressed: "state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”

Whatever that means.  Kavanaugh would just full blow take the Rehnquist Bush v. Gore concurrence.  What five justices would do if the matter is fully decided is unclear.  It does leave the federal courts some room for trouble.  And it is just unclear why that rule should be there.  

Religious liberty, affirmative action, and student loans still to be decided.  There will be an opinion day on Thursday.  

The Fight For Privacy by Danielle Keats Citron

I referenced Danielle Citron's new book in my earlier summary of things going on. She was again a guest on the Strict Scrutiny Podcast to help preview Internet-related cases (oral arguments).  

As noted, the book has a lot of good stuff, but some (well me at least) might not find it good reading straight thru.  On the other hand, again, there is some good stuff there. This includes appendixes on how to improve your and your children's privacy.  Which is a chore!

Citron supports the civil right of intimate privacy.  It is useful to understand these terms. "Civil rights are rights considered fundamental because they enable us to flourish as whole individuals and active members of society." 

Civil rights have legal significance and moral resonance.  She cites Robin West, who noted that they are necessary to "secure the preconditions for a good life."  Civil rights are put in place as a combination of state and federal laws, including constitutional rights.  They are our rights as citizens.

I have on this blog discussed privacy rights for some time. My sentiment is that there was not enough done to provide a foundation for a right to privacy though the material is there.  So, for example, Justice Douglas talked about the importance of privacy in a free society in a dissent involving being forced to listen to radio broadcasts.  

Privacy is something that is necessary for our breed of liberty as much as things like federalism and separation of powers.  The constitutional text expresses such things in various ways even if the word "federalism" itself is not used. To quote: 

With intimate privacy, we can explore unpopular ideas, play with our identities, and figure out our future selves -- the ever-evolving notion of the selves we want to be.

Privacy here is part of what would we label First Amendment liberties.  It would also be part of liberty overall including how we live our lives. The Due Process Clause, for instance, protects the rights of persons. The core interest here is personhood.  We have a general interest to be our own person with all that entails.  And, privacy helps here.  

One thing that comes to mind here is a good bit in the film First Monday In October (a flawed movie, but it has some good lines).  The liberal justice writes an opinion on surveillance:

When God created the world, he did it alone, in private. All by himself.  No monitors, no hidden microphones. He made it the way he wanted it. But what if someone had invaded God's privacy? Would he have put the world together the same way? I doubt it. He would've made it a popular world. And the Garden of Eden would have turned out like Las Vegas or 42nd Street. 

Citron honors a similar philosophy regarding intimate privacy.  It allows us a chance to make mistakes, and to have a space to be "honest and raw."  Life cannot be in a fishbowl, at least to truly enjoy it.  Privacy enables "autonomy, dignity, and companionship."

We are surrounded by threats to our privacy, including many means to collect information.  These include details collected about bodily functions, health conditions, searches, sexual activities, correspondence, body fat/appearance, and menstrual cycles.  We eventually do not expect as much privacy. This is complicated because privacy rights often rest on "expectations" of privacy.  So, this is a matter of creating demand.

This demand is there now to some degree but experience suggests it is not evenly respected.  The book covers various cases where intimate privacy is invaded, especially involving those with less power (women, gays, poor, handicapped, etc.) though an infamous case involved two FBI agents.  

Revenge porn is one example covered.  This was also covered in The Cult of the Constitution, including an argument that we can (and must) regulate the Internet without violating equal liberty.  The Supreme Court cases also become relevant here, including Section 230, which we saw arising in Taking Down Back Page.  The law is meant to protect "good samaritans," websites with some oversight not being treated as providers open to lawsuits.  But, what about websites that intentionally promote harm?  

Richard Nixon argued a case in front of the Supreme Court entitled Time v. Hill, involving the use of a real-life crime to create an exploitation film originally starring Humphrey Bogart. The family sued for invasion of privacy connected to the coverage of the film, coverage that included some erroneous content.  The Supreme Court originally upheld the lawsuit but eventually went the other way.  The dissent said privacy won out here.  

The lines might be complicated in various cases -- such as printing intimate details that have some public interest such as the sex lives of politicians -- but we need to understand there are two things to weigh.  A right to intimate privacy keeps this in mind.  Finally, the book reminds the famous law review article on privacy (Warren/Brandeis) was partially inspired by the concerns of the brother of one of the authors who was homosexual.  

SCOTUS Order List

The justices are back in session.  

As expected, the order list was low drama.  Among the cases not taken is the one covered in the now famous Onion brief cited here, which also discusses the two Internet-related cases covered in the oral arguments this week.  Gorsuch felt under the weather, so took part from home on Monday.  

Justice Jackson (with Sotomayor) had a dissent from cert. Justice Jackson is beginning to have a style with these brief, crisp criminal justice-themed dissents:

Petitioner Quartavious Davis alleged, and the Eleventh Circuit did not dispute, that he satisfied the first prong of the Strickland ineffective-assistance-of-counsel standard because his attorney failed to initiate plea negotiations with the Government.

I wish one of them had more to say before silently going along in nearly all of the recent executions that reached the Supreme Court since last fall.  

Jackson also implied on the first day of the Internet-related oral arguments (it went nearly three hours, which is too long for something scheduled for something like a third of that)  that she was more open than some others to allow for more room to litigate.  Some find that troubling. 

I am fairly libertarian-minded regarding the Internet. Nonetheless, there might be some middle ground open here.  

SCOTUS Order/Opinion Day

The Supreme Court had its first opinion announcements from the bench [we should get the audio eventually via Oyez.com after the term is over] since pre-COVID at the beginning of 2020.  

In a good system, we would not have to wait  Ditto to watch ceremonial events like a bunch of JAG personnel being on hand to be involved in bar admissions.  Instead, we have a SCOTUSBlog live blog, which provided some details for this post. 

It is also the first time Barrett had an opinion announcement.  The first case of the term is usually boring (this time: "exception to a deadline for veterans' benefits is subject to equitable tolling"), but usually comes out before now.  Why this one, first heard on 10/4, took this long is unclear.  The whole thing is eleven pages though for some reason needs three pages of headnotes.  

The other "opinion" was an unexplained statement that a case involving attorney-client privilege was improvidentially granted. In the past, I have found at least brief descriptions saying why the case turned out to be a mistake to take.  During the Roberts Court, however, no comment. 

The Order List is also not too notable. An important Internet-related case stood out because the Supreme Court asked the opinion of the Solicitor General.  The general assumption here is that this is a delay mechanism.  

Gorsuch dissented from a cert denial, involving civil penalties imposed under the Bank Secrecy Act for wilful non-disclosure of taxes.  Gorsuch made sure to lead that it involved some old lady who was a refugee from Germany and suggested it was all some innocent mistake on her part.  The feds suggest otherwise.  I don't think this is a violation of the Excessive Fines Clause.  If wanted to take such as case, there are more blatant examples.  I personally did not find the merits of the last case that bad.*

Amy Howe (SCOTUSBlog) notes that she was told that Kagan, Kavanaugh, Gorsuch, and Alito weren't on the bench.  I do not find this too problematic unless technically they did something (swearing in people?) requiring a quorum (six).  I think it would have been good practice for the first time back with an opinion announcement to have more there.  

They had one actual opinion to release.  It is unclear why they couldn't do it last week.  The people absent are somewhat suggestive though it does include Kagan.  Were they worried about some protest arising from last week's report or the Roe v. Wade anniversary?  Have something else to do?  To be clear, justices often skip these things since they are basically ceremonial.  Amy Howe suggested this many not being there was somewhat notable.  Again, basically, a shrug on some level though some people were insulted by the whole thing.  

SCOTUS now goes on a mid-winter hiatus until mid-February.  There is nothing scheduled officially until then.  There will likely be miscellaneous orders and the like, including those involving pending February executions.  

(After finishing this entry, I noticed there are multiple new media advisories -- one of many underused pages on its website -- about assigned seating for upcoming oral arguments that are particularly likely to receive attention.) 

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* The case's primary importance was to clearly incorporate the fines provision -- which most people figured was already in effect -- to the states.  I questioned at the time if seizing an expensive vehicle, which as I recall was even somehow used for the drug transactions targeted, was an excessive fine. 

A 1990s case involving an innocent wife who lost a small amount of money when a car she co-owned was seized -- her husband used it to have sex with a prostitute -- is much more unfair in my book. 

SCOTUS Watch: New Term Begins

There used to be February and August terms. "Congress moved the Court term’s start date from the second Monday in October to the current first Monday."  This means the "2022 term" started today.  First Monday In October was a play (and then okay movie) that foreshadowed the first appointment of a women.  White males are now a minority of the Court. Clearly, it is time to end affirmative action as we know it!

It took a little while (though it was up by around 10 A.M.) for the website to set up the link to the morning orders, needing to set up a new "2022" link.  The order list was a sort of "clean-up" list (nearly 50 pages long) and they have a set of new cases. Most aren't too exciting. They did take a possibly important case about regulating the Internet (Section 230).

[ETA: Here is a "view in" with a comment that the old term officially ended technically this morning.]

A SCOTUSBlog analysis that argues Thomas is the de facto chief, including talking about his national influence such as how many clerks are in important places of power (both locally and on the federal bench). Also, nice memorial for retiring court artist (Art Lien).  Also, lately it seemed to get the morning round-up out a bit earlier, after it often taking a bit too long.

The first argument involved the reach of federal power over wetlands, which has been one area conservatives have used to target federal regulatory power.  Justice Jackson got into the questioning early on.  The argument was scheduled to be an hour.  The challenger had that long.  It went more like 1:40.  

A HEY YOU to C-SPAN here. Brian Lamb was long pushing them to allow  video.  We now have audio.  But, for whatever reason, C-SPAN -- even on the first day of the term/new justice -- doesn't feel it is important enough to air it live on C-SPAN television.  You can check online for it.  On television, they didn't even have a congressional session at 10 A.M. They even aired a (not live) SCOTUS panel.  If the Supreme Court coverage is so important, why not air it? Many are not aware of the website content or might not have access.  Television (with photos to deal with lack of video and maybe a segment before/after) is useful here. FAIL.

Tough questioning for the anti-EPA side but largely from the liberals with the conservatives pushing back seemingly in a more gentle way.  Long term observer suggests SCOTUS might be looking for larger game here.  This bunch likes to ask questions. Arguments often go long. With less cases, they surely have more time for that sort of thing.  

The next case was more dull, but Justice Jackson asked a question early on as well. She had a nice sounding voice. Gorsuch sounds smarmy.  Kavanaugh sounds like a dick.  Alito sounds cranky.  Barrett aims for reasonable.  Kagan is your opinionated friend, who is somewhat nicer about it (at times).  She can bring the snark.  Sotomayor doesn't  tone that down.  Thomas is now rather chatty.  Roberts is your reasonable dad though at times he will get somewhat miffed or doubting sounding.  

To toss it out there, Roberts got a new assistant.   Tomorrow will have another big oral argument about racial redistricting matters.  Prof. Steve Vladeck (Shadow Docket guy/Mets fan living in Texas) noted how lower court districting cases could turn the 2022 elections.  Litigation already affected New York state races pursuant to state court action. 

Order Day

The Amy Comey Barrett hearings starting on Monday notwithstanding, Monday was a governmental holiday. So, the Order List was released by the Supreme Court on Tuesday. Another constitutional appointment conflict will be reached regarding patent judges. 

Justice Clarence Thomas wrote a statement regarding the denial of review in which he agreed with the Supreme Court’s decision not to take up a case but argued that, “in an appropriate case, we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.” 

Tuesday and Wednesday involved a few oral arguments, including an interesting case involving the reach of the Fourth Amendment in a case where the police shot someone but she managed to flee the scene. Was this a constitutional "seizure" for constitutional purposes. As the telephonic arguments were ongoing, you could switch and listen to day long hearings for the latest not quite legitimate Trump nominee to the Supreme Court. A lot of b.s. there, including her repeatedly assuring us she had no agenda.

Meanwhile, on the shadow docket, the Supreme Court with only Sotomayor dissenting (or explaining herself) on the record, stayed an injunction of a plan to end the census count. The new announcement is now that things will end on October 15th. Sotomayor appears to have made a good case that the stay was inappropriate given the strong case is not present to intervene.  She also noted that even if only a small fraction (maybe less than one percent) of field work is to be done (though that is a factual issue), that could be hundreds of thousands of people particularly of minority groups. 

Some were appalled at the move by the Supreme Court here, seeing it as a basically illegitimate move to enable Trump's screwing with the census count which has implications both in congressional apportionment but for allotment of resources.  Again, I think Sotomayor is probably right, but also as noted I am a census enumerator.  The count seemed about done in late September.  I question how horrid it is that now it is being finished mid-October.  But, Sotomayor notes that even a small fraction matters and in 2010 that fraction was seen as warranting additional action.  Plus, overall, why should one not trust this Administration at all?  That is sound policy.

Still, on balance, this very well might not be a horrible result. At least relatively so.  One can only guess what is involved, including the mindset of Breyer and Kagan, since the justices do not deign to explain themselves. For instance, the administrative discretion allowed here can help the Biden Administration.  Rick Hasen of Election Law Blog suggests (again) there might be some horse trading involving one or more other pending cases.  After all, net, what value is supplied if the dissent is a firm 5-3 over one dissenter and in theory others possibly (though this is not how people see it) dissenting quietly?  

So, mixed bag.  The confirmation hearings will continue.   

More Census News:  The election might in the long run make this all moot, but the Supreme Court took Trump's appeal regarding not counting undocumented immigrants for purposes of apportionment. This not only violates the "person" rule of the 14A, but below was found to violate statutory rules.  Unclear what will come of this. 

How Texualism Postures

A fairly standard if useful account on how "textualism" turns out not to just be some neutral approach at judging was particularly interesting for an article linked. It provides a list of ways why legislative history is a useful criteria, if used with other things, to decide cases.

"John Oliver's Internet Misogyny Rant is Satisfying As Hell"

John Oliver had another very good main segment last nite. The Brink, which is in the Veep time slot, starting fairly well. A lot of "huh, I know that person" faces, including at the Cabinet meeting. Too soon to judge how good it will be overall.

Ashley Judd Strikes Back Against Online Harassment

There has been various accounts by women concerning online harassment, including Anita Sarkeesian. So, Ashley Judd's troubles are not surprising though the criminal charges might be tricky. My experience is a Mets fan who I interacted with Twitter who made an ill-advised (to me obvious) joke regarding a police shooting. People took it as if she was serious and hounded her to cancel her account -- being connected to a tweet by her led to over a hundred notifications to my account fill with vitriol against her. Anonymity has its problems.

Moderate Opposition

One response here in particular felt for those who thought about it and aren't self-interested it is blatantly simple to oppose criminal punishments for drug use. Such overkill bothers me -- people aren't just wrong, they are either biased and/or unthinking. People can be wrong without this, especially for complex questions. Likewise, they (such as "conservatives") are usually not simply bad people. Strong opposition is fair, but sometimes people go too far.

Height/Weight

Interesting photos of various body types.

"The Unrepentant Bootlegger"

Good article and video regarding a convicted founder of an illegal downloading site. On that scale, I accept the government targeting, though question a year and a half in prison. Big picture, changing the copyright model makes sense. There is a way to have most everyone win here if with a bit less thrill. Given his later dissents, this Breyer article is interesting.

The Supreme Court Needs To Pick Up The PACER

It might be somewhat behind schedule & they should have more audio (at the very least opinion announcements, public events after all), but the USSC has gone far regarding their website. But, they do not do well with orders and other filings. SCOTUSBlog at times links stuff not on the website. Bench statements given to reporters should be public too.

"Is Edward Snowden Engaged in Civil Disobedience?"

Sometimes, perhaps I should worry, find some on the left over the top & this includes some of the support of Edward Snowden. I think this has it mostly right and "the value of some of [his and others] revelations does not mean that they deserve the prestige and influence that has been accorded to them." Details at links. The fear of unjust legislation hindering his defense doesn't quite do it, sorry. Did MLK have it easier or something?

PS

The recent episodes were on demand, but found the first on YouTube, not the second. The DVD I just watched had a PSA against against pirating, including downloading indie films. I understand that, but question how far to take it, especially with television shows like this. Know about copyrights. Full low budget films and stuff sold for profit are pretty easy calls. Targeting kids for music downloads? Not so much. Still annoyed with all those false hits.