SCOTUS Watch: Orders and Opinions

Order List

After granting cases on Friday, the Supreme Court released the usual ho-hum Order List on Monday. 

Alito didn't take part in a couple of cases, as usual, not saying why. I will continue to flag that until the conservatives join the liberals in saying why they recuse, which the new ethical guidelines encourage. 

As usual, there were various odds and ends. The most notable thing is some statements/dissents from some conservatives in hot-button cases. 

Alito/Thomas would have taken a case involving affirmative action while Gorsuch said the matter is moot with a change of policy. 

Thomas/Alito and Gorsuch (less bluntly) flagged a case where the Hawaii Supreme Court received some attempt by thumbing their nose at the current SCOTUS gun policy. They granted it was not a ripe case but were concerned about the issues. 

Kavanaugh without comment and Alito/Thomas (on standing) would have taken a case involving parents asserting a right to know if their children came out as trans at school. Alito was sympathetic about an unenumerated right of parents raising their kids, a week after the trans case involving parents concerned about the health care of their children.  

Alito argued that standing has been used to wrongly avoid certain cases. Justices are selectively worried about such prudential standing decisions.  Chris Geidner shows how hypocritical/FOX News-y Alito/Thomas is here to reach out to take this case. 

Opinions

The first two opinions were a per curiam and a one-line statement that said a case was improvidently granted. IOW, "We shouldn't have taken it."

On Human Rights Day, we had the first signed opinion of the 2024 Term. The day was the 76th anniversary of the passage of the Universal Declaration of Human Rights. Our courts, including the Supreme Court, provide a fundamental means to uphold our rights. Rights ultimately rely on us all.

Anyways, back to the Supreme Court, and its first signed opinion of the term.  Justice Jackson, who will get a chance to fulfill a dream on the stage, wrote a unanimous opinion in an immigration dispute. 

The facts might be sympathetic, but the Court determined that a challenge to an alleged "sham marriage" determination should fail. Jackson argued the law gives the agency involved discretion without the courts having the authority to second guess. 

There was a dispute over the law here so the answer to the question was not totally clear. I will not pretend to argue that I know the right answer. Suffice it to say, that a unanimous court is not necessarily a right court. Ultimately, the value here is to have an agreed-upon answer that can be applied consistently.  

As usual, the opinion announcement was not live-streamed, so you will have to wait for Oyez.com to release it sometime after the term (or find where it is stored and access it). Now, the whole thing is announced on social media, including court reporters telling us how many boxes of opinions there are as a sign of how many opinions there might be. 

The Court decided having an opinion day was so much fun that they would have one on Wednesday too. As with the first "opinion day," it turned out to be another case of them deposing the case as improvidentially granted ("DIG"), which was not surprising from the coverage of the oral argument. 

The case involved the use of NVIDIA chips by crypto miners. Okay. So we had four opinions this term, one a per curiam (unsigned opinion of the court) released separately. Two opinion days involved DIGS and only one with a signed opinion. 

More Orders 

The Supreme Court rejected a stay of a coal regulation. The "brief" order business is the standard talk for a standard rejection without comment. Stays are not usually granted though sometimes justices at least show some concern about the EPA these days.  

The Court also dropped an order after their Friday conference that added two more arguments. Thus, two of the matters they "relisted" for further discussion have been addressed. More orders are due Monday. 

Court Seating 

The Supreme Court livestreams audio but does not provide video of oral arguments. Also, people like to be present in the room. But, there is limited seating, resulting in some problems. The Supreme Court is starting a trial lottery process for public seating.  

The inability to provide video or photographs leads to the usage of sketch artists. William Hennessey, a long-time SCOTUS sketch artist, has died. 

Thus ends a busy if not too profound week. 

SCOTUS Watch: Order Day

While we, as noted yesterday, on in the "final countdown," SCOTUS is back to remind us how the courts on on the ballot. The oral argument today might have been dull but they can't avoid that.

Today's Order List, which is (as usual) not too fascinating has various reminders of this fact. Some lower court cases are disposed of with reference to SCOTUS cases involving administrative law and gun regulation. (Amy Howe has more.)

Court personnel and the federal government's position in these cases are significantly affected by who controls the other two branches of government. 

Jurisdiction is noted in two cases involving the use of race in districting with oral argument pending. Election cases are one of the few areas where Congress restricted the Supreme Court's ability to pick and choose what cases to take. Liberals regularly hold their breath in such cases.

One case involving immigration law was granted. Riley v. Garland might have a different caption (name) when the case is handed down. It is likely that whoever wins that we will have a new attorney general.  Let's see how this one is judged.

There is also a short per curiam that sends back a case involving intellectual disability and the death penalty to clarify what the lower court meant. Thomas and Gorsuch would have taken the case now. The case had been "relisted," suggesting some complications behind the scenes. This result feels like a compromise that kicks things down the road.  

===

Today's Strict Scrutiny Podcast talked about Alito and the princess, which is the stuff they (especially Meghan Markle fan, Melissa Murray) LIVE for. One wrinkle is a possible violation of the Titles of Nobility Clause. Sure, why not? 

Steve Vladeck talked about presidents and justices in his weekly substack. And, what is a Vladeck post without a helpful spreadsheet?

President Biden had one justice vacancy to fill while Trump had three. Let's not give him two more.  

SCOTUS News: Kavanaugh Hearings and Advise and Consent

More on Roberts

Joan Biskupic has another behind-the-scenes article that focuses on Chief Justice Roberts, including how people noted he was quite tired after carrying so much water for Trump last term.

Oral Arguments 

The justices had the first oral arguments of the new term. Solicitor General Elizabeth Prelogar shined yet again in a case involving regulation of "ghost guns" (a possible 6-3 win for the Administration, granted the Democrats hold serve; the alternative might make the matter moot).  

The everlasting Richard Glossip saga's latest chapter (remember when he lost a lethal injection case almost 10 years ago?) turns on a pair of technical questions. There are various predictions but the bottom line is that his death penalty case is a mess for a lot more than what is at issue. For instance, an over 200-page report written on the flaws was not just about this.  

Kavanaugh Sham 

The Senate has a constitutional obligation to provide advice and consent on judicial nominees and an institutional interest in ensuring that it receives complete, accurate, and timely information to facilitate carrying out that responsibility. 

Senator Whitehouse has been trying to obtain a full accounting of the investigation of Brett Kavanaugh during his Supreme Court confirmation hearings for around six years. A report released underlined the sham nature of the FBI investigation, which gave the Republicans cover. 

The nomination process from Garland to Barrett underlined how constitutional norms can be broken without there being some "unconstitutional" process that can be upheld in the courts.  

Current Supreme Court ethical problems underline the responsibilities of all three branches. Mere raw majoritarian will is not the only factor.

A president nominates and the person is confirmed (literally "appointed") with the advice and consent of the Senate. Inferior officers can be handled without Senate involvement if Congress so decides. 

The specifics of this process are basically a political question. Again, this does not mean "anything goes" meets one's constitutional oath. 

The process in place provides a means for nominees to be investigated. A reasonable investigation is necessary to uphold the sanctity of the confirmation process, including the power of the Senate to advise and consent. Extra effort is warranted for people with special responsibilities. 

If the process is slipshod, there are various checks. The First Amendment provides multiple means to air out the details and criticize. There is a greater reason to put people to a higher test if officials are not properly vetted. And, those who failed to do their job can be remembered at election time. 

People are understandably angry and cynical. "What does this matter? They will yet again get away with it."  This is surely appropriate when dealing with people with a form of life tenure. (The "good behavior" proviso seems rather meaningless at times.)

But, airing out the details has not been meaningless. The Supreme Court has had multiple hits. People support Supreme Court reforms. The justices have been more careful. And, it factors in at the polls. 

Federal judges were a major reason why voted chose Trump in 2016. It is a major concern for many voters today. The report, for instance, noted that (then) Senator Kamala Harris played a role in seeking information. Harris has joined in the conversation about how the courts again are on the ballot.  

Who do you want to nominate and appoint judges? Who do you want overseeing the courts, both in the House of Representatives (good shot) or the Senate (will take some help)? This report is a reminder. 

It would be a travesty if Republicans regain control of the United States Senate. Their role in corruptly obtaining a SCOTUS supermajority is but one reason.

Upcoming 

There are two argument days in mostly technical cases next week. A Friday conference will lead to the first scheduled Order Day of the new term. 

There are also two executions scheduled next week. I might cut back on my in-depth analysis of executions next year. Maybe, will leave it to those with miscellaneous orders connected to them.  

"What can be done about this Supreme Court’s very worst decisions?"

Ian Millhiser wrote a piece with the above title. 

Milhiser has little expectation that any of the major Supreme Court reforms will be passed. 

And, if they were passed, the Supreme Court could strike them down. He doesn't clarify but doesn't seem to think ethics reform will do much either. Millhiser references the chance of a national law protecting abortion rights. Does not say if that too will be struck.

He notes that the Republicans won on abortion as part of a long game. State laws limited abortion rights. Then, a sort of trifecta allowed them to overturn Roe v. Wade. It was darn close -- if Ginsburg lived a few more months, wouldn't have happened. I put aside if she would have retired earlier.

Mark Tushnet (writing in 2020) suggested there was a way for the people themselves to get around the courts if there was the will to do so. The underenforcement of racial equality, criminal justice amendments, and the separation of church and state suggests some possibilities on the ground. 

Millhisher also provides some options for "very worst decisions." The Trump immunity decision makes shit up and endangers the rule of law. Before overturning Roe, the same five justices allowed Texas to ignore it. 

Biden v. Nebraska both should have been dismissed on standing grounds and on the merits. A Second Amendment ruling put in place a doctrine that led to confusion in the lower courts.  

He is not sure if Dobbs should be placed among those "fundamentally hostile to constitutional democracy." But, why? He goes into a discussion about how rights ultimately rely on what five justices decide. 

"Once that majority is lost, the right disappears." So, people have a false security that once the right is there it won't disappear over time. And, Dobbs being on the books provides a warning, which shows why we need to vote for a liberal political majority.  

A few things. It took a long time and a perfect storm for Roe v. Wade to be overturned. Abortion rights were not a wispy thing. Rights protected by judicial means have some real teeth. They are not forever necessarily. But, that is not the same thing, anyhow.

And, we were not naive about the limits of the Supreme Court until Dobbs. The separation of church and state was not truly honored. And, then, a conservative supermajority underlined the point. 

Second, why were the other rulings clearly horrible? One possibility is that they blocked political change. Dobbs, at least not yet, has not disallowed the protection of abortion by statute and state constitutional means.  

Let's put aside the possibility that Dobbs will block congressional protections since it implies no right to abortion means to power to enforce, denying state power to ban. Also, Dobbs lowers the bar. Now, a "compromise" is a twelve-week ban.

Beyond such concerns, abortion rights are fundamental to constitutional democracy. They are essential for equal citizenship. Religious liberty and other rights are part of our democratic system. 

Next, the cases represented a broken judicial system, including letting lower courts ignore judicial precedents. However, Dobbs too represented a broken system, including a slipshod approach in overturning law on the books for almost fifty years.  

Finally, what does a right "disappearing" mean? The fact five justices claim a right doesn't exist should not lead the public to automatically accept that the right does not exist. "Judicial supremacy" should not be applied that broadly. 

Surely, in practical reality, a Supreme Court judgment can lead to a constitutional right not existing. Texas can now ban abortion except in very narrow cases. 

Constitutional rights are still present in some form. Consider the Fifteenth Amendment, which bars racial discrimination in voting. In practice, this amendment was held in abeyance in many parts of the country for almost a hundred years. It still was there, if people were willing to demand that it was enforced.  

The meaning of the Constitution arises from many sources. A dissenting group kept alive a principle of true equality during Jim Crow. People right now are keeping alive the principle of a right to choose. 

What can be done? State and federal abortion protections. Electing the people who will enforce the right policies and choose liberal-leaning judges. Pushing back on the courts, which will in a limited sense cause them to be cautious.  

And, yes, continue to fight for judicial reforms, including less talked about matters such as national injunction reform. Such reforms -- like same-sex marriage or an African American woman as president -- will seem impossible until they actually are not. 

Finally, we should respect the courts, but realize there are limits. We should demand them to be ethical and set basic limits on who could be judges. 

And, judges are not gods. If they say 2+2=5, it isn't totally so.  

Assassination Attempt

I earlier discussed a powerful Reuters article entitled "Judges in Trump-related cases face unprecedented wave of threats." 

Since Trump launched his first presidential campaign in June 2015, the average number of threats and hostile communications directed at judges, federal prosecutors, judicial staff, and court buildings has more than tripled, according to the Reuters review of data from the Marshals Service, which is responsible for protecting federal court personnel. 

Many of the threats against judges examined by Reuters echo Trump’s statements in social media posts and speeches, where he has attacked judges as “totally biased,” “crooked,” “partisan” and “hostile,” dismissed courts as “rigged” and called prosecutors “corrupt.” 

Threatening messages on pro-Trump online forums often repeat those terms or cast the former president as a heroic figure besieged by corrupt judges in secret “Democrat” plots.

Trump's language helped led to gag orders (and sanctions when he violated them) during his civil and criminal trials. 

He has used dehumanizing language against immigrants. Trump v. Hawaii handwaved his anti-Muslim comments. 

Trump sent winks and nods to white nationalists. He helped incite the 1/6 insurrection attempt. 

Meanwhile, Trump Republicans often strongly oppose any type of gun regulation. The Trump Administration did support the overturned bump stock rule. (How much the rule matters is also debatable.) 

President Biden opposes all these things. He has strongly spoken out about the importance of peaceful dissent and sane gun regulation. 

His response to the assassination attempt of Trump last night is par for the course. 

I am not trying to argue that Trump instigated this attack. I am suggesting his rhetoric, more so some of his more rabid supporters, is quite dangerous.

The Reuters article shows the possible effects. In recent history, right-wing violence has been worse. We speak of overall numbers. That doesn’t mean only right-wing violence exists. Nonetheless, the research data shows a trend.

Violence begets violence.

A historian might be reminded of the failed attempt on Theodore Roosevelt's life during the 1912 presidential campaign. The result there was different. The shooter was captured and later spent the rest of his life in a mental institution.  

The 20-year old here was "neutralized" (shot dead).  A bystander, 50-year-old former firefighter, died. Two are in critical condition. Trump appears to have been slightly wounded by being hit by some shrapnel.

What we know so far is that the shooter was the usual young miscreant who often is involved in these shootings. It appears he was outside of the standard defensive perimeter. Rep. Giffords and others can tell you the dangers of being a public official.  

We don't know all the facts but some "failure" of Secret Service protections is also premature, especially since the suspect was killed and Trump was barely hurt in the attempt. 

I am not handwaving the situation. But, you are not going to have 100% protection. I suppose Republicans who broadly support gun use and limited acceptance of regulations agree. The reports are the shooter used his father's semi-assault rifle. 

Political violence is a horrible part of our history. It is somewhat surprising we did not have more of it in recent years. Multiple people have been targeted. Nancy Pelosi's husband was brutally attacked. A top member of the Republicans in the House was shot. 

I appreciate President Biden's response, including (unlike a few people) not wanting to publicly make any assumptions without the facts. He said he planned to talk to Donald Trump himself. Would someone want to talk to Trump if the situation was turned around? I wouldn't want to talk to him.

Melania Trump tried to personalize DT:

“A monster who recognized my husband as an inhuman political machine attempted to ring out Donald’s passion — his laughter, ingenuity, love of music, and inspiration,” she wrote in the statement. “The core facets of my husband’s life — his human side — were buried below the political machine.”

She encouraged people to look beyond partisan politics: “Let us not forget that differing opinions, policy, and political games are inferior to love.”

Okay. Whatever it was, it was an act of a chaos agent that should not take our mind off the ball of sanity. Shooting chaos agents is not that. 

Note: Events are still developing to be clear.

SCOTUS Watch: Bye Bye Chevron

Half of the six (two doubles) cases left were handled today.

First, the conservatives (via Gorsuch) upheld a law targeting the homeless as a generally applicable anti-camping in public law which is not otherwise cruel or unusual. Thomas (as usual) goes for bigger game, wanting to overrule a sixty-year-old precedent that blocked criminalizing drug addiction (illicit status offense).  

Gorsuch spends a third of the opinion taking homeless policy and how much pushback the lower court opinion received before getting to the actual merits. Sotomayor (reading her dissent from the bench) argues the law is an unconstitutional attack on the homeless as well as likely having other problems. 

[Did I say I wish opinion announcements were available on the website? Yes? I'm told I have said this many times. Okay.]

The BIG (and expected) opinion today struck down "Chevron deference," which was firmly established over forty years ago. The Supreme Court used to give administrative agencies discretion to interpret statutes unless it was blatantly wrong or violated some constitutional principle.

Roberts handled the great white whale for many conservatives as well as those who spend so much time and money to get the right judges. Showing how hard it is to move tankers and so on, the ruling doesn't give judges free rein. Agencies still have some deference. Noticeably less though. Basically, the opinion makes it easier for judges to intervene when they want to do so.

Kagan (reading from the bench) dissented for the liberals, including explaining why the Administrative Procedure Act does not require the result. The majority claimed that was the basis of their ruling though mixed in "the courts say what the law is" rhetoric. Thomas and Gorsuch (who blathered on about stare decisis) would have also firmly relied on that. 

(Congress could in theory amend the APA but good luck with that.]

The decision gives federal judges much more power to interfere with the actions of administrative agencies. Agencies always had a large amount of discretion, often involving extremely technical and specialized matters. The modern administrative state only increased this principle. 

The courts, including the Supreme Court, already have means of causing problems. There is the made-up "major questions doctrine," for instance, that has repeatedly caused the Biden Administration problems. The concept here is that when a piece of legislation is deemed too big, the courts can strike down things that allegedly go "too far."  

This concept was involved in the final opinion, which will make it harder to address January 6th. One law professor noted the opinion, which narrowed the reach of one prosecution approach, reaches around 20% of the defendants. Not Trump, another assures us, well, not likely. Uh-huh. 

Roberts took this one too. Jackson concurred, opening with an acknowledgment that 1/6 was horrible (perhaps since Roberts went another way), but that can't allow them to stretch the law. Barrett for the other liberals strongly dissented that the government did so. For instance:

The case for the Government’s interpretation is straightforward. It can be accomplished in three paragraphs, as compared to the Court’s many, many more. 

Prof. Barrett also wasn't impressed by the majority's statutory interpretation that was "like using a hammer to pound in a screw." Their "atextual" reading did "backflips" and "failed to respect the prerogatives of the political branches."  Again, Justice Jackson disagreed. 

The net result is that the government has to go back and try to show that a correct application of the law would validly prosecute this defendant and anyone else who can bring a similar claim. 

Again, this case isn't about Trump though I'm not going to be totally assured yet that somehow it will deemed to be. And, it is a "win" for that side in some ways. 

Monday was announced to be the final day of opinions. They are running out of "power grabs" though the delay of the Trump case surely was. 

ETA: As expected, SCOTUS denies without comment a request by Steve Bannon to keep him out of prison. 

SCOTUS Watch: More Opinions

General Comment

My Supreme Court opinion analysis provides my personal summary of events. You can find more detailed discussions at places like SCOTUSBlog and Chris Geidner's Law Dork Substack. 

Chris Geidner, for instance, flagged how the tax case is carefully crafted to rule narrowly and leave open other tax policies to constitutional attack. The abortion pill case was dismissed on standing grounds. 

Nonetheless, the opinion (also written by Kavanaugh) spoke of an open-ended conscience exemption for health personnel. The craft suggests one reason why a small number of opinions take so long to be decided. Majorities are carefully formed, repeatedly by using opinions that are limited in scope. Again, however, how limited can be misleading.  

The Supreme Court carefully decides what to do. We should not take their actions merely at face value without digging deeper. This is not inherently problematic. Courts will always have complexity. But, we can be overly naive. 

For instance, I'm bothered by some who blithely accept the Supreme Court taking and slow-walking the Trump immunity case as if it is merely some law school thought exercise. It is a time-sensitive issue with real-world effects. The justices are strategically choosing to do things here. 

Various Opinions

The Supreme Court released five opinions. Amy Howe's summary of the remaining cases (now reduced by five) remains helpful. The big case involved guns.

Alito did not show up for the second straight day. Justices do not always show up for opinion announcements. None of the cases were opinions he wrote. The per curiam might be an opinion he originally was writing. Not sure if this matters though if he doesn't show up next time, it might mean more.

Water Rights

I expected an interstate water dispute to be handled by Justice Jackson. A 5-4 majority agreed with the United States that it had the right to block the states' consent degree. A groundwater/irrigation case is important for Western states.

(Gorsuch dissented for the conservatives, minus Roberts and Kavanaugh.)

Marriage/Border Issues

Barrett for the conservatives (minus Gorsuch) quickly (the oral argument was in late April) reached out to decide that a "citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country."  

Gorsuch noted they could have ruled on narrow grounds that the requested information was supplied. He tossed in, as he did in multiple opinions except when Jackson expertly dissented in another case, he respected his colleagues who disagreed with him on certain points.  

Sotomayor for the liberals provided a strong dissent protecting the spouses' interests. She disagreed with Gorsuch on the minor point that even on limited grounds she should have lost. Overall, this case underlines how the majority selectively decides to reach out to determine things. 

The dissent is very concerned about marriage liberty. The majority specifically says it is only talking about the right of a noncitizen to travel to the U.S., including to be with their spouse. I won't handwave the dissenters' concerns -- they are there, not me -- but how bad is the majority really? 

Confrontation Clause / Expert Testimony

The result was unanimous. The reasoning is somewhat more fractured. Kagan wrote an opinion that held that: 

When an expert conveys an absent analyst’s statements in support of the expert’s opinion, and the statements provide that support only if true, then the statements come into evidence for their truth. 

The majority leaves open some questions for the lower courts to handle on remand. She has five votes for the whole thing with Gorsuch and Thomas getting off the bus partially. 

Gorsuch (politely) and Thomas disagreed somewhat regarding her terms. Alito (and Roberts) agreed the testimony was unallowable hearsay. But, he angrily disagreed with the supposed breadth of the opinion's effects on expert testimony ("monstrosity," "radical change," "plain wrong").

[Alito's ire is not too surprising. Notably, Roberts joined in, especially since he usually shows his respect to Kagan.] 

Sentencing Factors 

Insiders know how much trouble the Armed Career Criminal Act gives to the Supreme Court. Today's case:

This case concerns the Armed Career Criminal Act (ACCA) and the Fifth and Sixth Amendments. ACCA imposes lengthy mandatory prison terms on certain defendants who have previously committed three violent felonies or serious drug offenses on separate occasions. The question we face is whether a judge may decide that a defendant’s past offenses were committed on separate occasions under a preponderance-of-the-evidence standard, or whether the Fifth and Sixth Amendments require a unanimous jury to make that determination beyond a reasonable doubt.

Gorsuch says the judge may not. Roberts agrees but notes it might be a harmless error. Thomas would go further if given the chance. Kavanaugh (with Alito dissent). 

Jackson partially joins Kavanaugh's dissent. Of note:

She additionally has prior experience as a Vice Chair and Commissioner on the U.S. Sentencing Commission, as a federal public defender, as a lawyer in private practice, and as a law clerk at all three levels of the federal Judiciary, including for Justice Breyer.

So, her expansive dissent -- which cites her broad disagreement with a shift in sentencing jurisprudence known as the "Apprendi/Booker" cases -- is particularly interesting. Jackson argues the approach as a whole (as compared to certain defendants) is not helpful to overall fairness. 

Gorsuch's failure to not simply politely disagree with the person most experienced on the question is notable.

Domestic Violence/Guns

The Supreme Court -- as expected -- upheld the ability to disarm someone under a domestic violence restraining order:

When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from enclosing firearms while the order is in effect. Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.

 

Jake Charles (a 2A expert) has a useful thread. He notes, for instance, that the opinion emphasizes the law allows a hearing. Hunter Biden, for instance, was convicted under a blanket ban for those who use certain drugs. 

There are multiple concurrences but only Thomas (whose thirty-plus page dissent helps explain the over 100 pages of opinions) dissents. Alito goes along without comment. 

The liberals note their disagreement with the Bruen (written by Thomas) Second Amendment case but note it was not being challenged directly. Sotomayor (with Kagan) emphasizes:

Rather than asking whether a present-day gun regulation has a precise historical analogue, courts applying Bruen should “conside[r] whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” This "relevantly similar" rule is vague and open-ended. 

Jackson's concurrence politely but pointedly notes the opinion led to a lot of problems, and it was a self-inflicted wound:

Meanwhile, the Rule of Law suffers. That ideal—key to our democracy—thrives on legal standards that foster stability, facilitate consistency, and promote predictability. 

Kavanaugh blathers for over twenty pages. Gorsuch says originalism (which is their obligation to follow!) allows it, especially since this was a facial challenge (a broad attack). He politely dissents from Thomas' views.

Barrett also grants originalism. It has "discoverable historical meaning . . . has legal significance and is authoritative in most circumstances.” Suffice it to say, I disagree that it is "authoritative." It has some discoverable meaning. Nonetheless, we should follow the lessons of history up until today, applying common law principles of legal analysis. 

She notes it is based on the idea that ratification is a "democratic act" that we must follow. Reliance on history and tradition should only be used if it clarifies the originalist moment. She disagrees with how Thomas applied it. 

A striking point of Thomas' dissent was that he noted that the government could always convict a domestic abuser and put them in prison. The net value of liberty in that and allowing someone to be at home without a gun is unclear. 

I think Jackson provides the most honesty. The majority is a somewhat reasonable application of precedent. But, only tweaks the troublesome precedent, and a lot more confusion reigns. Plus, it does not there is a bit too much artifice. 

Next Week

There will be an Order List on Monday. An opinion day has been announced for Wednesday. There likely will be more. 

They might squeeze everything in two days but the Trump immunity case seems to be something you don't hand down along with four or five other opinions. 

Also, two executions are scheduled. 

SCOTUS Watch: Order List

The Supreme Court, as expected, got around to labeling Thursday and Friday as opinion days. There might be over twenty opinions left. I think there will be three opinion days next week. 

The Order List was six pages and bland. Jackson said why she recused, Barrett did not. The case Jackson recused in (previous service) was an Indian Gaming Regulatory Act dispute. Kavanaugh for some unstated reason noted he would have taken the case for review.

The Supreme Court also took four cases for review, their schedule for next term is still somewhat thin. Matching the cases with SCOTUSBlog summaries, the controversies involve a Fair Labor Standards Act exemption, mail or wire fraud, the Private Securities Litigation Reform Act, and False Claims. Nothing hot button.

The bump stock opinion had a typo. It was corrected. 

SCOTUS Watch: Ethics and Opinions (Part II)

Ethics

Senate Judiciary Committee Chairman Dick Durbin and others appeal to Chief Justice Roberts to address ethics. Why? There is a likely feeling that he is the CHIEF JUSTICE, having special responsibility. 

But, he is actually merely a "first among equals" with no special powers. The more specific reason, which is not clarified enough, is that he is the head of the Judicial Conference of the United States. As its website notes:

It convenes twice a year to consider administrative and policy issues affecting the federal court system, and to make recommendations to Congress concerning legislation involving the Judicial Branch.

Senator Whitehouse explains how the Congress established this "policymaking body." Congress is empowered to do so, especially under the Necessary and Proper Clause. The Judicial Conference handles ethics. 

Roberts has a special responsibility as the leader of the conference. He also has a duty as Chief Justice. Chief Justice Warren took that duty more seriously, pressuring Justice Fortas to retire for much less than what Thomas did. 

I partially disagree with this take that overcorrects the valid concern that people are focusing too much on ethics alone. 

Ethical abuses, including the Chief Justice ignoring them, is a useful way to show the Supreme Court is abusing its power. Once you cite someone as an abuser, not worthy of trust, there is an easier path to general limits on their behavior. 

The analysis at one point even suggests Justice Thomas did not do something worthy of impeachment. His activities suggest "bribery" (trying to cover things up is a red flag), which is a specific ground for impeachment. 

Yes, and many critics say so, the Supreme Court has crossed the line beyond ethics. The slow-walking of the Trump immunity case as well as how they overturned abortion rights is an overall misuse of power. 

It is a factor in why I support court expansion. It is not merely a partisan "get you back." There are a variety of possible court reforms to recalibrate how the Supreme Court does its job. Change often comes when the current personnel can not be trusted to do the job properly. 

Reforms can also address the lower courts, including handling universal injunctions, which give much power to affect national policy to possibly a single district court judge. The Senate is also considering a bill to expand the number of lower court judges. 

Republicans realize that the criticism of ethics is not a stand-alone. If it was, they would be more likely not to be so against ethics reform. Nonetheless, it is useful to highlight soft spots. 

Bankruptcy 

The Supreme Court recently determined a bankruptcy rule violated the constitutional uniformity requirement. The question then becomes what relief, weighing everything involved, is required. 

United States Trustee v. John Q. Hammons Fall 2006, LLC in a 6-3 opinion written by Justice Jackson determined a refund was unnecessary. She appeals, using her favorite theme, to congressional intent, to show why this is so. It also does not violate due process of law. 

Gorsuch dissented with Thomas and Barrett. 

"Aliens" vs. "Non-Citizens"

Justice Jackson appeals to the "plain text and context of the statute" to decide the proper procedures for the removal of noncitizens from the United States. Justice Gorsuch joined her along with the other liberals. This time it was a dissent.

Justice Alito wrote the majority opinion. The more conservative approach is unsurprising as is Gorsuch dissenting. Gorsuch is regularly libertarian when it comes to federal power. I will allow others to debate the law here.

What stands out for me is that Alito continues to use "aliens" instead of "noncitizens." The liberals do not do so. The new conservatives do not. I will have to check to see if Thomas does so. Nonetheless, I do know Alito insists on using "alien." Using a term his wife might understand, it's a red flag. 

The term is criticized as dehumanizing and not suitable for our ideal national character. The Biden Administration announced in 2021 that they were not using the term "alien." 

Bump Stocks 

The Trump Administration banned bump stocks after a shooting spree in Las Vegas murdered fifty-eight people and wounded 500 more. To quote Justice Sotomayor:

He did so by affixing bump stocks to commonly available, semiautomatic rifles. These simple devices harness a rifle’s recoil energy to slide the rifle back and forth and repeatedly “bump” the shooter’s stationary trigger finger, creating rapid fire. All the shooter had to do was pull the trigger and press the gun forward. The bump stock did the rest.

The regulation was challenged on statutory grounds. Justice Thomas for the conservatives [Alito providing a short concurrence saying the "horrible shooting spree" doesn't change the law] agreed that the policy went beyond the statute. 

Sotomayor dissented from the bench. The Supreme Court wrongly does not provide audio, so we have to wait months until Oyez.com releases the opinion announcements to listen.  She argues the case is easy; the majority makes it hard:

The majority looks to the internal mechanism that initiates fire, rather than the human act of the shooter’s initial pull, to hold that a “single function of the trigger” means a reset of the trigger mechanism. Its interpretation requires six diagrams and an animation to decipher the meaning of the statutory text. 

The case does not turn on the Second Amendment. Justice Alito grants in his concurrence that Congress can pass a law banning bump stocks. They should do so. 

My understanding was that there was a good chance that the regulation would be upheld. OTOH, the oral argument was concerning. Multiple justices were doubtful. 

A liberal SCOTUS analysis argues the right answer in this case is debatable. Sotomayor argued that a rule against ineffectiveness favors her approach. Both sides think they support the "obvious" interpretation. 

Realistically, especially when the lower courts divide, these cases are not obvious. When Sen. Feinstein said legislation was needed, cited by the majority opinion, this is partially what she was talking about. And, if there is room for discretion, who has the final say? A conservative Supreme Court. 

There is a hazy test: just reasonable is a regulation? At some point, passing a new law (which is hard) is necessary to clarify matters. The same concept (change being much harder) applies when passing new constitutional amendments. 

The federal government did not prosecute the person. A "rule of leniency" is less clearly necessary here. The reasonable division between the lower courts and justices here also counsels that this is not obvious stuff. 

I am inclined, unless there is a crystal clear case, to agency deference. The rule can be changed. Congress can pass a law to change it too. The ideological split of the opinion is also suspicious. Bottom line, it is now left to Congress.

We have another message bill for the U.S. Senate Democrats.

==

There will be an Order List on Monday and opinions next Thursday. We are likely to also have a second opinion day next week. Wednesday is a holiday (Juneteenth). 

And, yes, we should not cheer the abortion ruling handed down yesterday too strenuously. I said so and will say so again. See also.  I do think that red states have enough anti-abortion laws to remind people (maybe, I should say "women") that they are not safe. 

SCOTUS Watch: Orders & Bad History

Dobbs and Bad History

The Supreme Court these days is big on "history and tradition." 

It is used to address the religious clauses, the Second Amendment, and to overturn Roe v. Wade. History and tradition come off as a form of originalism. Not quite. It is not the same thing. Still, like "textualism" and "originalism," the two concepts are often promoted by the same people. 

Originalism ties itself to specific points of ratification. This leads to certain complications such as the fact things changed between the Bill of Rights and the Fourteenth Amendment. These days, however, a "two-track" system for federal and state law generally is disfavored. A "living" model avoids such problems. 

Originalism is bad constitutional law. It is impractical, unnecessary, and bad in principle. We should apply the Constitution by current understanding, which we built up over time with new knowledge and experience. Meanwhile, we also have multiple legal techniques to use.

I have a degree in history. History is important. It's part of constitutional interpretation. Trying to use it as a primary means to solve recent decisions, especially if the "history" is a point in time of the distant past, is a fool's game. People have spelled this out in detail regarding the Second Amendment. 

The conservative usage of history is more troublesome when they simply do history wrong. This essay (with a citation to a longer paper) shows how Dobbs screws up 19th Century abortion law. See also here, which uses Lawrence v. Texas as a case study of how to correct the misuse of history. 

The essay explains the different context and the often limited nature of the bans. I would mix in more about how prenatal life (helped by an improved understanding of prenatal development) was part of the story. It doesn't change the bottom line that much. 

Justice Jackson has begun trying to provide a "liberal originalism" to provide a counterpoint. Be wary but it can be interesting. I am interested in possible separate opinions in upcoming cases involving guns, abortion, and so on on this front. Like religion, history, and tradition is not just a field for conservatives. 

Order List

There have not been any additional orders since last week after the trans-related case. The next execution scheduled is May. There have been additional "relists" (a case was scheduled for a conference and then "relisted" again) after a notable lull. 

We have a four-page Order List. As usual, there are a few interesting tidbits. Why was only one of two "motions for leave to proceed as a veteran" granted? Why did Roberts not take part in a case? Kavanaugh (without comment) noted he would have taken a Federal Arbitration Act case.

The Court took two cases (granted cert) for full argument. One was a technical case involving attorney fees. Another involved the question if a federal law was correctly applied to so-called certain "ghost guns." They have not handed down the bump stock opinion from this term. 

Upcoming

This will be a busy (four days) week for oral arguments. The big "hot button" cases involve homelessness and the Eighth Amendment, abortion and federal law (emergencies), and Trump immunity. There is also a National Labor Relations Board case that might be of some note. 

This is the last week of oral arguments. May and June will bring a range of opinions since only around a third of them have been released. Meanwhile, other stuff will happen. 

Strict Scrutiny Podcast now has YouTube videos so you can see some of the reaction shots and so on. 

Articles of Confederation and the Militia

I have multiple mini U.S. Constitutions, various places over the years providing them free of charge. I once (it very well might be lost) had a copy where I had to tape a copy of the 27th Amendment, it had not originally been included. That amendment was ratified in 1992 as a bit of a constitutional joker.

Some copies have other materials. One useful inclusion is the "original U.S. constitution," the Articles of Confederation. The AOC was ratified in 1781 and replaced by the Constitution in 1789. The Constitution was ratified in 1788. Nonetheless, the Supreme Court held that it did not operate until the new government began in 1789. 

The Articles of Confederation does not receive enough love. A significant amount of activity from the treaty that ended the war to the Northwest Ordinance occurred under its aegis. Chunks of it were retained in the new constitution later ratified. And, the differences between the two documents are useful in helping understand the meaning of the Constitution.

Consider this provision:

Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

The Tenth Amendment of the Constitution:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The word "expressly" is not present. This is of some importance. Many people (including Thomas Jefferson) were strongly states rights.* Such people continue to cite the Tenth Amendment as if the word "expressly" is there. It is not. The amendment does not erase the concept of implied powers. The word "expressly" would have changed things there.

How the Second Amendment was originally understood is also clarified to some degree by the AOC. Consider this provision:

No vessels of war shall be kept up in time of peace, by any state, except such number only, as shall be deemed necessary by the United States, in Congress assembled, for the defense of such state, or its trade; nor shall any body of forces be kept up, by any state, in time of peace, except such number only as, in the judgment of the united states, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such state; but every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition, and camp equipage.

The first part is retained in abbreviated form (the AOC is more detailed regarding various things**) in Art. 1, sec. 9. 

The military was a national institution. How should states handle day-to-day domestic defense? Modern police departments did not arise until to 19th Century. The answer would largely be a militia made of ordinary persons. A limited number of sheriffs and the like would also be involved.  

The people's militia as a basic part of a republic was discussed in various accounts. Machiavelli, for instance, appealed to its value in his famous work. The concept was not some anarchic realm appealed to by some today. It was one overseen by the government. The governor was the leader of the militia. People had an obligation to serve.  

"People" here generally meant able-bodied white adults with some dispensation for conscientious objectors. Equal protection would expand its reach over time. For instance, in Great Britain, it was a right for Protestants. In the United States, even in antebellum times, free blacks had a limited role. Of course, this was expanded later on.  

The second part is also implied in a clause regarding congressional power to call forth the militia for specific purposes ("execute the Law of the Union, suppress Insurrections and repel Invasions"). As Stevens' dissent in D.C. v. Heller argues, the Constitution did not remove state militia. 

The Constitution does provide Congress explicit power "to provide for the organizing, arming, and discipline" of the militia. Congress also has the power to regulate it when they are called up for federal service. The concern that this power would threaten state power over the militia was the immediate impetus for the ratification of the Second Amendment.  

(The last part of the AOC clause speaks of "field pieces" and the like, which does not appear to be particularly "militia-like" in nature though the semicolon suggests the whole section flows together in some sense.)

The AOC provides a duty (which like responsibility for funding the central government was largely hortatory) for the states to maintain a militia. The militia is not merely made up of individuals with the right ("duty" is rarely referenced these days) to possess firearms. The militia was more akin to a jury, which the government also calls up and oversees. 

I am not appealing here to a firm original understanding approach. As Justice Alito himself references in McDonald v. Chicago (application of the Second Amendment to the states), the understanding behind the amendment underwent a change. In the mid-19th Century, there was a growing understanding that the amendment protected an individual right to own firearms. The understanding was present when the Fourteenth Amendment was ratified.  A rural freeman would have a right to have a firearm to protect his home from nightriders. It was not just a "militia right."  

Likewise, the whole debate is somewhat beside the point. The Second Amendment having a limited purpose would not erase the right to own weapons for other purposes. There was also a common law right of self-defense.  People had the right to own a weapon for that purpose along with such needs as hunting. Finally, rights were not absolute, even if a constitutional provision appears to be framed that way.  

Saul Cornell is one useful source for the "two threads" of gun regulation (militia/personal) in antebellum times. There are lots of authors who cover this ground. I reject the idea the Second Amendment is just a "racist" amendment. The famous "minute men" of the Revolutionary War, for instance, arose in Massachusetts. Guns were not only around to enforce slavery. The misuse of governmental power and selective application of rights goes far beyond any one area. 

My concern here is to provide clarity and context. The AOC and original Constitution reference the "militia" multiple times. Likewise, it is indirectly referenced by limits on states to have "troops" or "engage in war." Such barriers should be read in the context of other means of societal defense.

My extended remarks here arose while I was looking over a copy of the Constitution. A close reading (or even a reading) of both constitutions can be quite helpful. We saw how a sloppy reading led to abuse in the Trump insurrection case.  The same applies in recent Second Amendment case law. 

I find this depressing and distressing. The Constitution is attributed to "We the People." We have the ability and duty to understand it the best we can. 

The Articles of Confederation should be more of a part of this. The lack of good books on how the AOC was applied during its short but still notable life is part of the problem. Most accounts focus on its creation and the general conclusion it was not satisfactory.  

We should have more than that.  

---

* One person who I respect has consistently online rejected the term "state rights" since only people have rights. 

I respect his knowledge of the Constitution and its formation. Nonetheless, the term was commonly used by the Founders and their generation.  

** The AOC becomes a trudge to read when you reach the later articles, especially Art. IX. 

One rather ridiculously expansive paragraph involving a petition to Congress to settle disputes is likely to cause your eyes to glaze over. Along with the section before, it does provide a precedent for congressional power to create federal courts.  

We should be particularly grateful for those who were in charge of the final text of the Constitution. We can carp that parts are too brief or vague, but as a matter of clarity, it is a great improvement.  

Friday Justice News

Fani Willis

The first news today was that the Georgia judge dropped his decision regarding Fani Willis remaining on the case after evidence arose about a relationship with another prosecutor. She can if she kicks off the other guy. 

I do not claim to know much about Georgia law. Nonetheless, this whole this to me came off as a damn f-ing sideshow. What harm to the defense (and, yes, I'll say this if she's a Republican bringing a criminal case against a Democrat) did this all entail? It comes off as a matter of employment ethics that at most can be addressed by the suitable parties there.

We can grant (not that such relationships are somehow novel) she screwed up (take the pun if you want). So what? People mess up. That doesn't change the bottom line. The judge was harsh on her bad judgment, including on the stand in the face of unfair quite personal attacks. Yeah. Okay. Meanwhile, the real criminals continue to be out there.

(ETA: I have read various tweets from Anthony Michael Kreis, who is also out there in many locales talking as an expert on Georgia law. I STILL don't understand why this actually is a problem for the defense. 

Multiple people have alleged other prosecutors would not be treated this way. I have seen no one actually showing [except for one case multiple people point out is very little like this] where they have been. AMK in one tweet even notes the value the now removed prosecutor had on the damn case! 

Her reputation in the opinion that AMK argues is the best she could have hoped for is tarred repeatedly. For what? I still think the whole thing is bullshit. It is at best something that should have been handled by the appropriate ethics organization.) 

Fine. Kick Nathan Wade off the case. Can we now move on? The usual Eeyores are out there focusing not on the bottom line -- pushing forward to prosecute -- but how this all is bad for the Democrats. Why just attack Merrick Garland, after all? Sorry. There is a "collective failure" at hand. 

The New York case was due to start at the end of the month. Something came up (the DA blames the Trump side) regarding new documents provided by the federal government (it's unclear what the delay was about). 

Now, the DA supports a month's delay so the government can examine the documents. [And, it was granted. Trump's side asked for more.] Not quite the delay I was expecting but I did expect something was quite likely. 

We can look at the bright side. Still depressing. 

Supreme Court Decisions

The first case involved a tricky matter of a public official blocking someone on his Facebook page. Barrett in a short (under 20 pages) unanimous opinion appeared to handle things crispy in down-to-earth language. 

The person has to have public authority to be a spokesperson and purport to have actually used it. The case (and a companion dispute) was sent back to apply the rule. A "looks like state action" approach was rejected. 

Barrett has two short opinions now. The justices without an opinion were: Roberts (he might have written the per curiam in the insurrection cases), Thomas, Alito, and Kagan. 

Kagan was working on a more divisive application of a sentencing reform act. She wrote for the conservatives (minus Gorsuch) to uphold the government's view. Gorsuch (with the other liberals) wrote a strong dissent. Both opinions were about thirty pages long and dealt with statutory interpretation. 

My bottom line in these cases is that disputes often tend to rest on judgments on how to weigh multiple interpretative rules. Gorsuch tends to get self-righteous about how clear things are. This doesn't mean he is necessarily wrong here. I will leave that to the experts, including some criminal reform types that sympathize with the dissent. It just means his schtick annoys me. 

Meanwhile, in Friday order news, the solicitor general was given some argument time in upcoming abortion pill cases. 

Also, the Court refused to get involved in a dispute over drag shows at a Texas University. Chris Geidner is on the case in a dispute worthy of more than bare denial. 

Other News 

One person I generally respect argued that the mother was unfairly targeted in a controversial firearm prosecution. She was prosecuted first. But, while most are no longer thinking about the case, the father was convicted on the same charges.

Among the things discussed in that Sotomayor/Barrett event I referenced the other day is the use of video at the Supreme Court. Sotomayor suggested C-SPAN coverage of Congress aided and abetted divisive partisanship. Oy. Video is used for diverse courts here and abroad. Stop with the faux history.

An award named for Ruth Bader Ginsburg, particularly to honor women, is being given to various conservatives that she probably would find distasteful (e.g., Elon Musk). Multiple people pushed back.  No, not that Amanda Tyler.

I'm sure there is more, but that is enough for now.

SCOTUS Watch: More Orders

Mifepristone

The Supreme Court released the expected order list with additional grants. The most notable involves the abortion pill cases that have played out in the Fifth Circuit. Two issues are involved: rules regarding use and a more expansive request that would turn the clock back over twenty years. 

The Fifth Circuit pared back the breadth of the district court case regarding access. The other case was blocked. The Supreme Court did not grant the request to take the broader case. It might have purposely emphasized the point by singling it out as the one case on the order list that was not accepted. 

(The Supreme Court regularly does not explain itself in its orders or at best writes very little, leaving a lot unsaid. It is left to lower court judges, advocates, and the press to "read between the lines" as appropriate. This includes choices regarding what cases to take  and what questions to decide.)  

The federal government asked them to review the access case (or it would have gone into effect). They did so. One analysis summarized:

Mifepristone and other abortion pills account for half of abortions in the United States and mifepristone has been safely used by over 5 million people since its FDA approval. Which is not to say there have been 5 million abortions. Drugs like mifepristone are often prescribed by OBGYNs to manage miscarriages which have already begun naturally.

If the decision is upheld, the drug could no longer be delivered by mail, even in states like California or Massachusetts where abortion is legal. It would have to be prescribed by a doctor after three medical appointments and only up through the seventh week (right now it’s available through the tenth).

I agree that "decisions of faith, personal autonomy, health, and family planning are private."  The author of the substack also wrote a book on the first cabinet. Suitable reference to Bill of Rights Day (12/15/1791 was when it was ratified). 

More On Dobbs

Underling that SCOTUS news comes even when nothing new is expected, there is an extended "behind the scenes" article on the Dobbs opinion. 

The NYT "drew on internal documents, contemporaneous notes, and interviews with more than a dozen people from the court — both conservative and liberal — who had real-time knowledge of the proceedings." Good to see leaks stopped. 

One notable bit is that Barrett did not vote to grant cert. Breyer was willing to vote with Roberts (15 weeks ban okay) if held the line from overturning Roe. Before the justices (5-4) refused to hold up SB8, the Texas law that foreshadowed the end of Roe, Sotomayor wrote “What a pity that we cannot do the right thing,”

Yeah. The abortion pill case underlines -- going against social consensus -- how far ahead of the public the Supreme Court could be these days. These cases are a result of Dobbs v. Jackson. My feelings about stripping fundamental rights away are still raw. Imagine how those directly affected feel. 

Oh. Can't leave out (given my hobbyhorse) that Gorsuch and company [Kavanaugh ultimately disagreed] were ready to stop all opinion announcements, including dissents from the bench. Gorsuch is singled out as thinking it would promote public respect. Ha ha. Breyer wanted to have an oral dissent in Dobbs. They did not have them given COVID protocols.

A lot of "Alito leaked" takes too. The article reaffirms (at least in effect) that the leak helped stop any last-ditch Roberts/Breyer compromise.  The loyalty of clerks to liberal justices makes it hard for me to suspect a liberal clerk did it. Breyer and likely Kagan would clearly strongly oppose the tactic. Sotomayor is also no major rule breaker either. 

Abortion was the "white whale" for Alito and Thomas. Thomas has a modicum of respect for Court culture. I think Alito > Thomas is fair odds. I also think more than the Politico people involved in the release know, perhaps this piece's authors.

I understand journalistic concerns here. It does aggravate me that we do not know. If we can leak a draft opinion, it might be time to expose the leaker. 

Other Grants 

The Supreme Court also granted other cases, including a capital matter. 

One petition involves a January 6th defendant, which has some implications for Trump's prosecution. Nonetheless, it looks like they purposely took a narrow case, and it should not be a problem regarding the Trump prosecution. 

Meanwhile, Thomas should recuse.  He can consider the matter as the briefing in the Trump immunity case continues. We might see more action there before the end of the year.  

Second Amendment

Supreme Court also refused to block Illinois’s ban on assault weapons and high-capacity magazines during litigation. No justice said a word of explanation. The court of appeals already upheld the law and rejected a request for the full panel to hear the case. 

So, the law can go into use with the challengers only left with the hope the Supreme Court grants cert through the normal process, which would at least take things into 2024 and perhaps beyond. 

The Supreme Court has taken a case involving carrying guns outside the home. It has recognized a right to own handguns in the home. It has yet to show much interest in dealing with assault weapons or whatever gunsplainers want to call them.

We have to pick our spots for optimism and sanity these days. 

==

Next week concerns honoring Justice O'Connor. The Senate unanimously voted on a bipartisan resolution:

A resolution acknowledging the lifetime of service of Sandra Day O'Connor to the United States as a successful Arizona State Senator, trailblazer, expert collaborator, educational advocate, and one of the great Justices of the Supreme Court of the United States. 

There also is the holiday party. Meanwhile, I will continue to keep track of things.

One more tidbit. At the end of the tax case that Alito did not recuse from, Roberts accidentally started to say the "case is dismissed" (see here), which was edited out (see here, where you just get the "uh" where he caught himself).

Little petty thing that is gratuitous. 

SCOTUS Watch: Order Day

SCOTUS often releases a mini-order list on Friday before their scheduled Order Day. The Friday release often grants one or more cases for full review. The Order List on Monday is a vanilla one.

So it went this time. The Friday orders had a bit of a gun theme. The issue of "bump stocks" (which the Trump Administration regulated) now gets full Supreme Court attention. A bit from the Washington Post:

The Biden administration had asked the Supreme Court to reverse a lower-court ruling against the ban on the devices, which speed up how quickly bullets can be fired when attached to rifles.

Americans bought 520,000 bump stocks during the period in which the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed them. The rule requires owners to either surrender or destroy devices they lawfully obtained.

The challenge is on statutory grounds. If the Second Amendment comes up, it would not be surprising. For instance, constitutional avoidance is a principle that you avoid certain interpretations if reasonably possible to stop unconstitutional results. The regulation in its own limited way is notably broad. The "surrender or destroy" rule is something gun regulators usually only dream about.   

The NRA also accuses the head of New York’s Department of Financial Services of coercion. She urged banks and insurance companies that did business in New York to consider the “reputational risks” from doing business with gun-rights groups like the NRA, and she encouraged them to cut their ties with the group. Triggered much?

The third case involves an arbitration dispute. Arbitration, which results in fewer rights to go to court, has come up in multiple cases for some time now.

===

As expected, the Monday Order List was short and basic. 

Likewise, as usual, I think they should provide more clarity (including a FAQ) to help describe such terms as "certificate of appealability" (habeas term). Also, it would be helpful if we knew why Barrett and Gorsuch did not take part in the decision regarding two cert. denials.   

There is an execution scheduled this week. The Supreme Court also might address various petitions on the "shadow docket" (did you read Steve Vladeck's book yet?). So, there might be one or more orders dropped during the week. There is a conference on Thursday (Friday is a holiday). 

The big news this week (so far) is an important case involving keeping guns away from some people found guilty of domestic violence. Two other oral arguments (Monday and Wednesday) also will take place. 

The gun case is on Election Day, which in 2016 was a major reason why we have as much of a corrupt tainted Court as we have now. Ohio also will vote on a ballot measure to protect reproductive liberty, again much more greatly at risk because of the Supreme Court. Other elections have court flavor as well.

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. 

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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.