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.  

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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 Watch

SCOTUS had no oral arguments. They were somewhat busy with orders and November began with a conference which will bring orders on Monday. 

The Supreme Court on Monday allowed a federal law intended to standardize anti-doping and safety regulations in horse racing to remain in place while a challenge to that law plays out.

Amy Howe dealt with the somewhat confusing procedural dynamics. Bottom line, only Justice Jackson (though Prof. Steve Vladeck on Twitter said she was right) openly disagreed. 

The move suggests that the justices are interested in taking the case. If so, it can have some significant effect on regulatory choice. There was some bipartisan support for this particular regulation with Mitch McConnell among those saying it has made things safer overall.

Gorsuch dissented from the decision to leave Kennedy on the ballot in Michigan. In a short paragraph, he indicated that he largely agreed with the three conservative judges in the 6th Circuit who would have ordered Benson to remove Kennedy from the ballot.

Robert Kennedy Jr. ended his campaign for president and supported Trump. Kennedy then tried to game the ballot process to keep himself on the ballot in states where it would help Trump and remove his name where it would not. 

The Supreme Court turned down two attempts out of Michigan and Wisconsin, two important "blue wall" swing states. Gorsuch alone dissented in one case.  

The lower courts partially were dubious about Kennedy's two-faced approach. Why would it be coercive to force him to be on the ballot only in certain states?  Also, he waited so long, it would be problematic to do so with voting already starting. 

The Supreme Court on Wednesday temporarily blocked an order by a federal judge that would have required Virginia to return more than 1,600 people to the voter rolls. U.S. District Judge Patricia Tolliver Giles found that since early August the state had canceled the registration of more than 1,600 voters – at least some of whom were U.S. citizens eligible to vote – under a program intended to remove suspected noncitizens from the voting rolls.  

The justices, with neither faction explaining themselves, split ideologically 6-3. Steve Vladeck explains how this is another troubling exercise of the "shadow docket." Technically, only the three liberals dissented on the record. 

OTOH, if a conservative wanted not to be counted as going along, they shouldn't do the mostly (especially here, where the ideologically split vote looks bad) useless act of voting in a way only the justices and their clerks know about.

The lower court decided the other way. The stakes warrant an explanation. Yes, people can still register if they have the right information, though it can be burdensome (one person missed hours of work). People who voted by mail and do not realize there is a problem might be out of luck.

Voting is a fundamental right. A federal law was passed to protect erroneous deprivation near an election when there might not be time to fix false positives.  The balance should go to the voter here.

Cornell West   

Meanwhile, without referring it to the whole court, Alito disposed of a request by Cornell West to have polling places in Pennsylvania have signs telling voters they can write his name in. Sounds a wee bit desperate. Alito: no flag for you. 

West is on the list of people who will be counted if voters in New York write in their names for president.

Friday Night Fun 

I thought we were done but they decided to drop another order apparently after 6 P.M. on Friday. 

They refused a GOP request to narrow options for Pennsylvanian voters who botch mail ballots and try to vote on Election Day. This time, there is a statement by Alito (the circuit judge; joined by Thomas and Gorsuch), explaining that though the case addresses a serious issue, the specific claim doesn't work. 

So, the justices can explain when they wish. 

Other News  

SCOTUS dropped a media advisory regarding the limited sitting in a trans rights case. The Trump Administration would have a different take. 

Ready for 2025? January argument time!   

Right now, the Supreme Court is on the ballot. 

New York City Ballot Measures

Federal Races 

The most important thing on the ballot in November, as people have already begun to vote, is the defeat of Donald Trump. 

It would be appalling if Trump, a convicted felon who is unfit across the board, wins. Do we want to be a nation where his message and cause is endorsed by the people at large?

We also need to focus on Congress. Both to act legislatively in a positive way, and to not endorse Trump enablers and supporters, congressional races matter. The path to a House majority includes a few swing districts in New York. 

The Senate remains an uphill battle. It would be appalling (less so than Trump winning) if President Harris is handcuffed by Senate Republicans. It is time for change in places like Texas and Florida. 

State/Local Races 

State and local races also matter. 

Attorney generals and local prosecutors have much power. The counting of votes in the presidential election in 2020 significantly turned on state and local officials. States have much discretion. 

Ballot measures also are an important means for the public to make policy. Abortion is on the ballot in over ten states. Any number of other issues, including marijuana policy, are covered by such proposals. 

New York State Proposal

New York City residents also will vote on six proposals (back of the ballot). 

The first is a statewide measure which is repeatedly promoted and/or thought of as a "state ERA" or an an abortion rights measure. It covers more ground:

This proposal would protect against unequal treatment based on ethnicity, national origin, age, disability, and sex, including sexual orientation, gender identity and pregnancy. It also protects against unequal treatment based on reproductive healthcare and autonomy.

Some criticism its wording. Why not directly talk about abortion rights? The proposal (rightly) covers more ground. Abortion rights are part of a wider whole, involving "pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy." 

The amendment also covers more ground that that. The measure covers "ethnicity, national origin, age, disability." The first categories expand and clarify existing protections regarding race and color. 

The next two expand existing protections in other areas. Without knowing for sure, it appears to me a more significant addition to the state constitution. 

I guess it might be argued that too much is being added at once. It also allows specific classifications being "piggy backed."  I figure less people are worried about "age' while "disability" will interest a specific sector of the population more than others.  

New York City Proposals

New York City residents have five proposals, which are basically the result of mayoral action. There is some mayor v. City Council drama involved. Some argue that mayoral overreaching alone makes all of these provisions dubious. 

Mayor Adams is now under federal indictment for campaign related crimes involving foreign deals. Many city residents (I will count myself among them) are not that so happy with his overall reign. 

The provisions also involve various inside baseball proposals that seem dubious fodder for the ordinary public. The support of a general equal protection measure is something the average vote can have a basic sense about. These measures? Not so much. 

Some form of both of these concerns leads me to be wary about most of the city measures. How important one of more of them will be in practice is far from clear. Nonetheless, as a matter of principle, I am included to vote "no" down the line.

The one exception might be the second ballot measure overall (and first city ballot measure), which involves sanitation. It seems benign:

This proposal would amend the City Charter to expand and clarify the Department of Sanitation’s power to clean streets and other City property and require disposal of waste in containers.

Granting that is unclear if it is necessary to use a ballot measure to do this, the overall sentiment makes sense. Some areas now fall outside of the Department of Sanitation's jurisdiction. It seems sensible to be more comprehensive. 

And, if you like the mayor's policies involving new garbage cans and the like (from what I can see, a modest but important good sense policy proposal from Adams), that's another reason to support it. 

I have concerns that make me lean toward "no." First, again, the overall process involved here is questionable. I am not inclined to give this mayor the benefit of the doubt. Overall, I would let the City Council handle making sanitation policy, not the public at large via ballot proposals.  

Second, the measure involves additional power to regulate vendors. There is a connection there and sanitation. Nonetheless, as the linked article notes, it appears that the measure misleads the public -- if more power to regular venders is at issue, why not openly mention it? 

This is the sort of inside policy details that makes me wary about policy by ballot. Sometimes, there is some obscure proposal on the ballot involving state law. For instance, something about regulating parkland. Why is this on the ballot? The state constitution apparently requires it in various instances. Fine if annoying.

There is no such compelling need for these measures to be on the ballot. Again, one or more might not be problematic, or even might be useful. 

But there is some debate on the matter.  Like voting for some local judges with little clarity on whom you are voting for and often little discretion ("pick three" and there are only three options), sometimes there is too much democracy. That might sound bad but republican democracy involves a balance there.   

It is counterproductive in an overall civics sense to have people vote for things for which they have little grounds to make a sound choice. People have a rough idea who to pick when voting for major candidates, especially when they have party-based choices. 

Some ballot measures will confuse people. We can reasonably hope that a half-way sound approach will be possible when the people vote. At some point, however, a line is crossed. When we get to:

“This proposal would amend the City Charter to require fiscal analysis from the Council before hearings and votes on laws, authorize fiscal analysis from the Mayor, and update budget deadlines.”

I think we crossed it. Anyway, early voting in New York will begin on October 26th and run to November 3 (also "fall back" time day). Then, you will have a day off to worry about Election Day itself. 

Not that it will be the end of things either though except for the stray race it might be in New York.  

SCOTUS Watch

Transgender Students

SCOTUS has its own form of "Friday Afternoon News Dump":

A little past 5:00 p.m. Friday — more than two weeks after the Biden administration’s new rule addressing sex discrimination under Title IX of the Education Amendments of 1972 went into effect — the U.S. Supreme Court finally ruled on a Justice Department request to limit injunctions against enforcement of the rule during litigation.

Sotomayor wrote the partial dissent for the liberals and Gorsuch. The opinions (a short per curiam included) are for whatever reason found on the Opinions page. 

As Chris Geidner notes:

On a 5-4 vote, the Supreme Court rejected DOJ’s request — keeping the rule completely blocked in 26 states and hundreds of schools in other states while litigation proceeds, despite the fact the almost all of the challenges only addressed three provisions of the lengthy rule that were aimed at providing protections for transgender students.

Chris Geidner has been on the case as this litigation has been ongoing. It looks like an abuse of injunctive relief arising from another multi-state policy litigation. 

Court reform should in part have this on its radar. Gorsuch has (if not always consistently) spoken about his concerns about injunctions in the past. His Bostock ruling suggests he might be more sympathetic on this issue than some others. 

Amy Howe also discusses the ruling.

(ETA: The per curiam emphasizes that it is "important" to note that the dissent agrees as to three things. But the federal government does not even challenge two. 

It grants the matter is complicated and it can be held up as it is litigated as to those two things. I'm unsure exactly why the partial dissent disagreed with them as to the third thing. Still, it's a limited matter.) 

Gorsuch's Book 

Justice Gorsuch has a new book out regarding overregulation. He is giving some interviews. For instance, it was reported he told supporters of Supreme Court reform should be careful. 

Gorsuch is not simply a knee-jerk jurist. He supports Native American rights, wrote an opinion protecting GLBTQ people, and applies his wariness of governmental power in the promotion of liberal causes from time to time. 

I still find his takes overly simplistic and cocksure. And, he is still conservative regarding many important issues, including abortion, the death penalty, and administrative law. He is often a fourth vote in the liberal cases, adding to his limited value. 

This criticism of his administrative law principles covers some of that ground, including how he wrongly mixes policy with judicial interpretation. Appellate judges will make policy. The rub is he makes bad policy and refuses to even grant he is making any. 

Another analysis targets his simplistic usage of history, including a Madison focus. Madison, a favored founder of different sides, isn't quite the median original understanding guy some take him out to be. Liberal or conservative flawed originalism is still just that -- flawed law office history. 

A third analysis argues that Gov. Walz (not a lawyer) helpfully provides a different mindset about civics and republican values. Perhaps so. But, there are wrongminded sentiments from all comers there.  

Petitions 

A website helpfully keeps track of petitions on the "shadow docket." Two notables concern voting rights in Arizona and another blockage of Biden's attempt at student loan forgiveness via statutory means in place to do just that.  

Support for Reform 

We can debate specifics. The public supports Supreme Court reform. Once you are there, the rest is detail, if admittedly critical details.  

Democrats and independents strongly support all of Biden's proposals. Republicans strongly support ethics and are more narrowly supportive of term limits and an amendment to override the immunity ruling. 

It is good on the merits and as a political strategy. Ultimately, the people's faith in the Supreme Court has diminished in recent years. They saw Thomas and Alito act unethically and at least concerning Thomas probably in violation of criminal laws (disclosure).  

The ultimate judgment here is that the Supreme Court has to be taken down a peg. If an institution, be it the Catholic Church (Reformation, anyone?) or a Supreme Court with a supermajority of Catholics, oversteps, reform is not a bad thing. 

Some talk about a threat to judicial independence. Liberty and license are not the same thing. Too much independence can lead to tyranny. 

We sometimes rely too much on the courts. The meaning of the Constitution is obtained by many institutions and the people themselves. The courts were a major aspect of the 1800 elections. 

Why not 2024?

SCOTUS Wrap-Up

Term Wrap-Up

Amy Howe's SCOTUS term summary is entitled "Roberts court hands major wins to Trump, conservative movement in 2023-24 term." 

There is even a "Trump docket" where Trump and his allies were 3/3 (the statutory case warrants a bit of an asterisk pending a determination of how broad it will apply). 

Likewise, there was a "war on the administrative state" and wins for conservatives on voting rights and regulating the homeless. The fact it could have been worse doesn't change these things. 

One conservative said the term was fine, except for the two Trump constitution cases (not surprising given his long article taking another view in the insurrection case).  

On this issue, there were signs of "Trump exceptionalism."  Other than that, how was the play, Mrs. Lincoln? These two cases alone are days of infamy.

A major problem this term was ethics. Alito and Thomas had repeated problems. Roberts failed to show up. 

And, the ethical guidelines were so lamely respected that only the liberals even cited them to inform the public about why they recused. Senate Republicans cried foul even when the Democrats tried to subpoena Leonard Leo and Harlan Crow. Total fail. 

The summer will have little official business. There are summer orders, miscellaneous orders, and whatever news the Alitos will bring us. TBD. 

There is plenty of time to discuss the Supreme Court and the courts. Likewise, lower courts will continue to decide things. Or not decide things, if you are Judge Cannon. 

Books 

I noted that Stephen Breyer's latest book is a trudge. His aim (why else go on talk shows promoting it?) is to attract a wider audience. The book is not written with that in mind. I appreciate the goal. The follow-through was dull and I'm more likely than some to plow through this sort of thing.

His first non-technical book, Active Liberty, did a better job. It was originally given in lecture format. It's a small size book that is around 130 pages. It is a more bite-sized method to inform the public of his overall pragmatic vision. 

The Originalist Trap by Madiba K. Denne is another book aimed at a wider audience. It's a mixed bag. She argues we should interpret the Constitution using an "inclusive constitutionalism" that promotes democracy for all. There is no completely objective approach here.

The subtitle is "How Extremists Stole The Constitution and How We the People Can Take It Back." She worked among other places at the Brennan Center of Justice. She also has had teaching jobs. This is her first book. 

The book is also mostly serious with some attitude (she is a writer at Balls and Strikes after all). There is a clear audience being addressed. She is not trying simply to be neutral. The subtitle shows upfront what she thinks about originalism. 

My approach is to use current knowledge to apply constitutional terms. It is asinine to try to determine the often ill-informed view of people from times past. And, as she notes, the whole thing is applied selectively. The often more inclusive Reconstruction Era principles are too often ignored, for instance. This is not the way to "do law."

The first fifty pages probably could have been more crisp. We then get chapters about substantive due process, elections, and the census. Overall, she discusses how originalism is not the way to go there. Surely. 

The last chapter is about fighting to "take back" the Constitution. People can vote (for those who pick judges and sometimes the judges themselves), serve on juries (she supports jury nullification), frame battles using inclusive constitutional ideals, and use legislation with an eye to the future. 

Lawyers can strategically use lawsuits, help inform, help activists when they need legal support, and promote inclusive constitutionalism however they can, including in legal education. They can also push to limit the harm. Judges can also use dissents to frame, appeal to legislatures and others, and as a voice for a better future.  

Everyone should not be defeatist. A reminder now regarding the election. Mark Tushnet in 2020 (before Barrett) also provided some "popular constitutionalism" lessons which can be helpful. A basic approach here is not to grant legitimacy to Supreme Court rulings when not warranted. 

One response to the infamous Dred Scott ruling:

This Dred Scott decision, we need hardly say is entitled to just so much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room.

The Trump immunity ruling is as worthy of respect, except that might insult the wisdom of drunks. Since we can't have good things, the sentencing in the New York trial will be postponed to at least September. It was due next week!

I have said in the past that we should have a long-term vision. Stuff has improved in the last twenty-five years though we have had some backsliding. But, that's annoying. 

SCOTUS Watch: Final Orders

The Supreme Court had its "clean-up conference" and released some final orders, grants, and statements/dissents.

The first link (relist watch) is a helpful way to cross-check the four grants. We have e-cigarette regulations, the standard to use when testing an Internet age requirement, First Step sentencing issue (two cases), and this fascinating issue:

When a noncitizen’s voluntary departure period ends on a weekend or public holiday, is a motion to reopen filed the next business day sufficient to avoid the penalties for failure to depart? 

The final order list before summer break also allows the justices to say some stuff about cases they did not take. Sotomayor and Thomas are the most vocal with Jackson (Sotomayor going along) having one. Kagan joined one involving life without parole for teens. 

Alito dissented without an opinion regarding taking a case involving "assault weapons." Alito has less than an average amount of opinions this term. It is quite possible that he lost two cases in the writing. 

Among the issues, Sotomayor has a statement regarding the dangers of faulty science being used to prosecute cases. A statement allows a justice to voice concerns or explain their stance while not dissenting from the Court not taking a case for full review.  

(Texas recently scheduled an execution arising out of a conviction that might be based on faulty science.)

So, the Supreme Court goes on vacation, the only official thing scheduled being three summer order lists to deal with stuff:

For your planning purposes, summer order lists are scheduled to be issued on Monday, July 22; Monday, August 19; and Friday, September 6, 2024. Summer order lists usually consist of actions taken by the Court on motions in pending cases, petitions for rehearing, and other miscellaneous matters. Emergency orders, such as in applications for stays, will continue to be released as required.

Responses

AOC announced that when the House returns from its own recess she will have an impeachment resolution for the justices. I do not know the exact form this will take. Nonetheless, it is a helpful way to keep the issues alive. 

The Supreme Court should be an election issue. Such "theater" (as one response handwaved) is politics. 

President Biden also had a brief statement, which he made himself to the press, in response to the Trump immunity case. He reminded people of what happened on 1/6. He said that there should be a trial before the election but the Supreme Court (wrongly) made that very unlikely.  

Biden reaffirmed the principle (7/2/1776 is the day independence was declared) that we do not have a king. He agreed with Sotomayor's dissent, including the importance of dissenting from the majority opinion. 

The bottom line is that it is up to us:

Perhaps most importantly, the American people must decide if they want to entrust the president — once again, the presidency to Donald Trump, now knowing he’ll be even more emboldened to do whatever he pleases whenever he wants to do it.

President Biden looked energetic though when he walked away he looked a bit more frail. I think it was a good statement. A few were annoyed that he voiced restraint after the Supreme Court allegedly gave the president carte blanche. They didn't do that. Would they just let Biden do whatevs? 

We don't want a "good dictator." The people in 2020 showed that they wanted a person of character. Biden was correct to contrast himself with Trump on that issue. And, contra some comments I saw, it was not the time to bring up other things such as Hunter Biden or the debate. The statement is fine. 

The ruling was bad. It stripped Jack Smith of the ability to bring certain charges and made it harder to bring others:

It ruled that Trump is absolutely immune, and thus cannot be prosecuted, for any attempts he made to get his Justice Department to do sham investigations in order to show that the 2020 election was conducted illegally – the “big lie” that Trump and his allies have pressed since that election and that got him in legal trouble. Those dealings with the Justice Department were the only ones ruled by the Court to be totally protected from prosecution.

It decided that Trump has a tentative form of “presumed” immunity (which prosecutors can try to overcome) by attempting in January 2021 to persuade his Vice President, Mike Pence, to stop the counting of Electoral College votes that made Joe Biden the winner of the Presidency.

Again, certain types of evidence are also withheld from the prosecutor's toolkit. And, just what this will wrought is unclear. We are assured, for instance, that the Georgia case will largely be unaffected. To be determined! 

President Biden's statement is a relatively rare direct statement about the Supreme Court itself. This election is among other things about the federal courts. 

We are not just talking about nominations and confirmations. We are talking about oversight, reforms, and passing legislation to address decisions. For instance, yesterday's agency decision allowing more challenges can be addressed via legislation. 

Heather Cox Richardson in her Facebook chat about the Trump immunity opinion (Substack here) suggests everyone do their part depending on their strengths. One of mine is to provide analysis and details. An informed public is essential. One person complimented a comment of mine as "lapidary." I like that.  

Amee Vanderpool:

We need to reform the US Supreme Court by adding more judges to the bench and rotating the docket. This is a simple idea for a not so simple fix that will require a Constitutional Amendment at a time when we will be lucky to have a slim majority. This means we will have to elect Democrats, in mighty numbers, who are willing to pursue court reform, to do the job. Sadly, based on the political history of our country and the basic nature of human behavior, it will likely take even more to push the dial back to center. Buckle up, this is just the beginning of a very long road to reform.

I do not agree with defeatist people, including talking about the "end of democracy." There is a certain degree of privilege in such comments. How did African Americans think about that issue a hundred years ago?  

AV thinks yesterday's decision will help voters choose correctly in November. As we get ready to celebrate the Fourth of July (sit down, John!), let us remember our nation's values, and how people gave blood, sweat, and tears (not necessarily in that order) to fight and defend them.  

ETA: The latest news is that the sentencing in the NY case is now delayed until September to examine how the immunity case applies. Total bullshit but again don't tell me how the Georgia trial won't be affected. At least for Trump, very well will be. Ditto for any Trump officials involved. 

SCOTUS Watch: More Opinions with Some Tyranny

Stephen Breyer's Book

Various liberals were not impressed by Stephen Breyer's latest book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism. 

The book's purpose was to explain his approach to serving as a justice and judge and interpreting the law. His guest appearance on Stephen Colbert (blah) underlines he is writing for a broad audience. He has written some books for specialists. He intended a broader audience here. 

If you want a readable (if still somewhat academic) book on his constitutional vision, you should read Active Liberty. It is shorter and covers the important bases. He had a longer one, which was still approachable. His book on international legal disputes also was not bad though some might find it too long.

This book is a slog. His message is important, which makes it unfortunate Breyer could not manage a condensed version. I am sympathetic to his purpose-based approach. I find originalism asinine. Textual (not the same thing) without more is inadequate. And, a book about how the Court is doing it wrong (though he is loathed to admit his colleagues, to whom he dedicated the book, using their first names, are ideologically biased) has value. 

I wouldn't suggest this one even if from time to time there are some kernels of interest. 

Yes, It's Bad, Even if It Is Not TOTALLY HORRIBLE

Some takes on the Supreme Court opinions underline how horrible everything is. Then, some people respond to argue things aren't that bad. They are pretty bad.

Multiple cases (including one handed down today allowing more time for people to sue) are blows against the administrative state. The opinions were 6-3 and each liberal took turns dissenting from the bench. The administrative state isn't dead. But, surely, as a whole, these cases were a BFD that were part of a years-long campaign.  

The 1/6 statutory case was of limited reach. Nonetheless, it was problematic, especially how the case was framed. And, the majority [Jackson tried to show otherwise in her concurrence] helped. The "vibes" can influence lower court actions and how the overall prosecutions are interpreted publicly:

Among other things, that misperception will only further embolden a future President Trump, if he wins election this November, to drop the remaining January 6 prosecutions and pardon those already convicted — even where the charges are completely unrelated to the statute the court narrowed in Fischer. The justices are savvy, smart people who live both physically and metaphorically inside the Capital Beltway. They should have known better.

A reference in today's immunity case even suggests it might have some implications in the Trump trial. The Trump immunity opinion, which is horrible in a variety of ways, does not seal out all means to prosecute him.

Nonetheless, it significantly expanded (with the backing of a majority opinion of the Supreme Court) the reach of immunity from prosecution. Official presidential acts or even those on the edge ("presumptively" protected) now are immune, based on made-up rules. Melissa Murray of Strict Scrutiny underlines the breadth (here Barrett got off the bus):

Another huge aspect of this decision that is not being covered in media coverage--conduct that is protected (i.e. cannot be prosecuted) also can't be used as evidence to prove charges stemming from conduct that is unprotected. Totally hamstrings the prosecution. This is huge.

You know this is bad when the dissents don't end with "respectfully" dissent:

With fear for our democracy, I dissent. [Sotomayor]

In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent. [Jackson]

Sotomayor dissented from the bench. The Supreme Court does not deign to provide audio or a transcript. Jackson dissented from the bench in today's administrative law case, which received less attention but was still important.

To bring the liberal trifecta (Barrett wrote the administrative case & Roberts the Trump immunity case), Kagan had the middle case involving Texas and Florida laws that targeted social media. All nine justices agreed the litigants aimed too high ("facial challenge").  

A mixed majority went along with some more of Kagan's opinion, including a takedown on the Fifth Circuit. Three conservatives and to a lesser extent Jackson were careful to note the complexity of the issues. They felt the majority went too far into the weeds. 

Kagan crafting together as much of a majority (six justices joined parts of her opinion) was something of a surprise. Many predicted someone else would write the opinion and that it would be more fractured. Anyway, the opinion was the calm in the storm, between two more problematic rulings.

Opinions done. They will hand down a "clean-up" Order List tomorrow. And, then it's summer recess with the usual practice being three summer order lists to quickly address odds and ends that come up before they come back. 

Call to Action 

The Supreme Court reminds us about what should be our focus. Dwelling on a bad debate performance or hoping for unicorns? Not what we should be doing.

First, we need to win in November. 

Second, we need to reaffirm basic values. Justice Jackson's dissent in the Trump immunity case was a philosophical exercise, including the importance of individual accountability and limited presidential power. The administrative law cases also provide us a chance to address basic principles, including the role of Congress and expertise.

Finally, we have to focus on the problems with the Supreme Court. And, this Supreme Court in particular. They have ethical problems. Have too much unlimited power. And, standing pat without statutory and perhaps constitutional change (e.g., term limits) is untenable at this point.

The last part is a long time process. Change also will often require a trifecta (control of the presidency and Congress). We can imagine limited change (e.g., ethical tweaks) without that. Also, control of one house can result in oversight hearings and some pressure. 

An informed citizenry starts now. 

SCOTUS Watch

Opinions

After a short break, the Supreme Court came back on Friday. 

A conference and public sitting (often merely for swearing in lawyers) was on the schedule. We learned mid-week that we would also have opinions though they always say "may" to provide an out if something ever comes up. 

The opinions were each short and unanimous. Chief Justice Roberts' first signed opinion of the term (he might have written the per curiam in the insurrection case) was nine pages regarding the Federal Arbitration Act. Sotomayor dealt with a Securities and Exchange Commission issue in less. 

Barrett, a busy bee so far, dealt with a Takings Clause claim. Her opinion was also short (under eleven pages). It helpfully summarizes precedent. She has shown some flair in writing crisp and approachable opinions. She also tossed in some humor:

The Takings Clause’s right to just compensation coexists with the States’ police power to engage in land-use planning. (Though at times the two seem more like in-laws than soulmates.) 

Five justices joined various concurrences to underline how limited in scope the opinion was. As Gorsuch noted separately, the county government granted the lower court was wrong on a key point. To cite the headnotes: "The Takings Clause does not distinguish between legislative and administrative land-use permit conditions."

On the minutiae front, Barrett included links in her opinion. There is a separate page for URLs to prevent dead links. The justices have not used too many this term so far.  

The Supreme Court also announced Tuesday and Wednesday will be opinion days. They are starting to catch up in opinion writing, after being behind schedule. 

Subpoenas  

Some time back, the Senate Judiciary Committee voted to subpoena Leonard Leo (Federalist Society), Harlan Crow, and a third person (who eventually voluntarily worked with the committee). The subpoenas were part of an attempt to investigate ethical problems, including all those gifts received by Thomas. The third subpoena was dropped. How about Leo and Crow?

Leo -- after the committee voted in November -- finally received the subpoena, which he (as expected) rejected.  Senator Durbin (nice floor speech promoting the confirmation of Adeel Magni) did not explain the delay. [Durbin is the Chair of the Senate Judiciary and has been criticized for his soft approach on various judicial matters]  Now, they have to have a floor vote to enforce the subpoena in court, which the Republicans can filibuster. 

Harlan Crow still has not received a subpoena. Since the Republicans can simply filibuster it, doing so would be mostly symbolic. Still, the Democrats had no apparent good reason to delay things. Overall, this underlines how the current subpoena process is absurdly impractical.  

[The below underlines why Steve Vladeck's concerns about being "too partisan" are aggravating. I comment there too.]

The Republicans are full of shit about the whole thing, arguing ethics problems everyone sees is just some ideological campaign against conservatives on the Supreme Court. The problem is that the concern is particularly focused on Thomas and Alito, not every conservative.

Thomas, of course, still has not accounted for most of his free trips on his disclosures, which by and large do not wholly count as “personal hospitality,” given that a private jet or yacht do not count as “facilities” under the reporting exemption.

The link notes Justice Jackson updated some of her financial forms. Kagan and Jackson have explained why they recused. The others have and all of them (except Sotomayor, I believe) have had opportunities to do so since the ethical guidelines have dropped. 

And, to the extent ethical rules should be upheld generally, it should be a bipartisan theme. Plus, the insurrection case was a problem all around, though five justices were worse. 

Orders

The housekeeping order on Friday regarded an upcoming case involving the Eighth Amendment and the homeless (the solicitor general of the U.S. can take part) and an abortion case involving emergency care (divided argument refused). 

The Order List is longer than usual because Sotomayor and Jackson provided a statement (Sotomayor) and two dissents (one each) regarding denials of cert.

Sotomayor provided the statement in a case already undergoing years of a winding road where someone received civil liability for negligence arising out of a Black Rights Matter protest. Someone else hit a police officer with a hard object and the leader of the protest was blamed. 

Sotomayor cites a case that arose later that should block the "negligence" test but notes the denial of cert. could arise for numerous reasons. So, might be okay.  

(ETA: The case was "relisted" seven times while it was being considered. So, there was likely some discussion behind the scenes.)  

Jackson dissents in a case where a coerced confession was treated as a "harmless error." She argues it was wrongly handled, particularly given the importance of the confession on the facts involved. 

Sotomayor (with Jackson) dissents from denial in a case where she flags sex discrimination in peremptory challenges of jurors in a capital case. 

Kavanaugh (without comment) would have taken a case with this question presented:

Whether federal courts have jurisdiction under 28 U.S.C. § 2241 over a petition for habeas corpus alleging that a prisoner’s unconstitutional conditions of incarceration require release, either because habeas jurisdiction generally extends to conditions-of-confinement claims, or because it at least extends to such claims when the prisoner seeks his release from custody?

We also have (again) multiple conservatives (Roberts, Alito, Kavanaugh, and Barrett) who did not say why they recused from cases (Thomas and Gorsuch did so too in the past) while Kagan (Jackson has done this in the past) again explained why. I do not think Sotomayor had a chance to explain since the ethical guidelines dropped.

This Week 

We will also have three days of argument (Mon-Wed) and another conference on Friday. Thursday will be their fun day. Maybe. 

SCOTUS Watch

Chevron Deference 

The Supreme Court had two oral arguments on Chevron deference. The other argument involved the Takings Clause.

[There were two arguments since Justice Jackson was recused in one case. This led them to artificially split the arguments though the questions presented for argument are basically the same.

The second argument had an also ran feel, except to have Paul Clement -- conservative advocate extraordinaire -- rant a lot.]

Amy Howe at SCOTUS, usually less excitable than certain liberal court watchers, suggested the oral argument is a red flag. They are likely to "discard Chevron" or at least significantly water it down. 

The Supreme Court in recent years has been more likely to not accept agency interpretation of statutes. The original case noted that agencies should be given the benefit of the doubt if the law is "ambiguous." The agency should not clearly ignore the law. When that occurs is quite debatable. The rules also change if constitutional rights are threatened. Now we have a made-up "major questions doctrine" rule. 

Let us say -- as one liberal commentator whose pieces seem to flag every other case as a big threat suggests might happen -- the Court decides this case on an off-ramp argument. I am unsure how much this limits court discretion. The federal government also does not grant the case is "non-ambiguous" against them. 

And, probably with language that can be applied broadly (if judges are inclined), the opinion can provide courts broad discretion to find fault with federal regulations. Chris Geidner was more upset than usual regarding the bullshit arguments made by the opponents. 

The argument put forth judges as above-the-fray truthtellers. That sentiment is a concern as much as overturning Chevron and replacing it with some other test that claims at least to some degree to trust agency review. The game also might be broader, as the usually on the money Prof. Dorf suggests (delegation).  

The next oral argument is the Trump insurrection case. Briefing taking place. 

Orders 

The justices met for their private conference on Friday (1/19). They will not have one again until February 16th. 

There were no separate orders between the two Order Lists (last Tuesday and today). The big news (Gorsuch not involved; doesn't say why not being  Kagan/Jackson, but he was on the 10th Circuit) is that they finally (after putting it off for a long time) took Richard Glossip's case for oral argument. They just can't admit his case is so screwed up that it is just obvious that he shouldn't be executed.  

Upcoming

Their mid-winter break will be interrupted by the insurrection case. But, there is no conference scheduled for the next day. They, of course, can meet off-schedule. We might also have additional miscellaneous orders. 

We still only have one opinion (basically a short punt) for this term. There are some big issues to decide but there are also other opinions that should be quick enough. 

There is also an execution scheduled this week. 

Roe v. Wade 

Roe v. Wade was decided 7-2 on January 22, 1973. It did not make fifty. A corrupt-packed Court, got that way because Trump Republicans, overturned it in a corrupt way (more details coming out later). Perhaps, it will long term be our Kansas-Nebraska Act moment. That's a good suggestion. 

SCOTUS Watch: Orders

Drag Shows

Chris Geidner is a good place to go to keep track of the many pieces of anti-trans legislation and litigation brought addressing it. 

For instance, recently he addressed the fraught decision to appeal a losing case to the Supreme Court. The Biden Administration decided to (at least partially) join the effort. We will see how that goes with this Supreme Court.

Florida recently enacted a law that makes it a misdemeanor for a restaurant or bar to knowingly admit a child to an “adult live performance,” defined as a sexually explicit show that would be obscene in light of the child’s age. 

The Supreme Court on Thursday addressed one of Florida's many discriminatory laws. The specific issue was a request to hold up (grant a stay) a district court decision that broadly blocked (injunction) Florida's law from being applied. The stay request was specifically limited to the breadth of the injunction. Florida might have had a case on that front. 

The fact something was wrongly decided alone is not usually a reason for the Supreme Court to intervene. The Court refused to do so with three justices (without comment) noting they would have granted it. 

Roberts and the liberals were silent. Thomas, Alito, and Gorsuch dissent. Kavanaugh and Barrett (except for a footnote) said the issue was important. Nonetheless, the procedural posture of this specific case made it a bad one for review. Again, they probably have a point. 

As an aside, if a justice does not publicly dissent in these cases, it is hard for me to accept that we should do anything but say they consented. Silence usually means assent. 

I was told by a major Supreme Court reporter that she generally agrees. Technically this is not accurate. It is bad form not to add "no public dissents" or something.  Have the votes public or consider the orders a joint "for the court" statement that you implicitly consent. This approach is phony.  

(The case involves a chain named "Hamburger Mary's" and a Florida official named Melanie Griffin. Oh so close to the actress.)  

January Arguments

We are approaching the New Year. Where has 2023 gone? The year has been something of a way station before the presidential year. The start of major Trump litigation and trials also has played out as a sort of prologue to 2024.

The Supreme Court sometimes drops the first opinion in an uncontroversial case in December. They also might dispose of a case that turned out to be a rejection. 

For now, we have the oral argument scheduled for January.  There are some possibly interesting odds and ends. The possible landmarks are two cases (Jackson is recused in one) that ask the Supreme Court to make a big change in agency law. Multiple scholars have shown agencies have had broad discretion back to the 1790s.  

The interference in allowing regulatory agencies to have the flexibility to do business is a major conservative project. Some argue the New Deal was when the Constitution died or something because agencies were given too much power. 

Friday 

The Supreme Court calendar on its website notes:

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 the press. The Supreme Court Building will otherwise be closed.

I find this opaque reference annoying. A useful nonargument session would be one where Chief Justice Roberts made a brief statement about the new code of conduct, which they appear to want to drop with as little fanfare as possible.  Prof. Michael Dorf argues that they still did that wrongly. He suggested a simple statement of a new set of court rules. But, maybe, these are more like guidelines.

(Catch the movie reference?)  

The purpose of the session is likely to swear in people to the Supreme Court bar. Perhaps, that is implied by the seating arrangement. A clearer statement (sometimes specific groups of people are involved), perhaps a quick press release, would be better. I continue to find the Court has an openness problem.

The justices also had a conference. The website summarizes: "The Justices will meet in a private conference to discuss cases and vote on petitions for review."  John Elwood has a column at SCOTUSBlog discussing cases that were "relisted" (put on the agenda for multiple conferences).  

Order List

Typical no drama Order List. 

The justices granted two issues (two cases were consolidated) for a full argument. Nothing too fascinating. 

(ETA: Someone was "invited" to argue the criminal case.)

Thomas wrote a dissent involving a procedural matter (see link) while Kavanaugh without comment also would have taken the case. (ETA: More info on that dissent.)

Alito didn't take part in two cases without explaining why. Only Kagan has recently begun to provide brief categorial reasons why she was recused. Each justice should follow her lead. 

No more conferences or scheduled order days in November. It would not surprise me if some stray order pops up. There will be arguments during the last week though technically that starts the "December Calendar."  Happy Holidays.

ETA: Sometime yesterday, a notice was dropped that an administrator is retiring early next year. 

SCOTUS Watch: Orders List

I briefly referenced two orders by Roberts and Alito from last week in their role as circuit justices. A bit more on them.

One case involved a sports betting lawsuit:

The Florida pari-mutuel outlet had asked the United States Supreme Court on Oct. 6 to prevent the Seminole Tribe of Florida from resuming the taking of mobile and online sports bets through its Hard Rock BET app. West Flagler asked for the stay, it said in its filing, to prepare an official plea to the Supreme Court, called a writ of certiorari, to settle a matter that has dragged on since 2021.

On Thursday, Chief Justice John Roberts granted the stay request temporarily. The US Court of Appeals, DC Circuit had ruled in June that the Seminoles were legally able to resume sports betting activity in Florida. The Department of the Interior, which regulates tribal gambling compacts and is the target of West Flagler’s litigation, has until Oct. 18 to respond. The Court will make a final ruling on the stay thereafter.

[Legal types might note that the Seminole Tribe was involved in a major Eleventh Amendment case back in the day and that too involved gambling.]

The other (via Chris Geidner) involved Missouri v. Biden, the social-media influence case. Alito, again, issued an administrative stay of the July 4 injunction in the case after the 5th Cir wrested control of the case back and expanded its injunction (nonetheless still narrowed from the original).

Or (that's from a tweet), as he said: "tl;dr: The Biden admin is not bound by the injunction currently." This matter was referenced here before. As Geidner, who does yeoman work keeping details straight in these sorts of cases, discusses, it is part of a rather convoluted series of events. 

===

The normal practice is to drop cert grants on Friday before a Monday Order List (where pro forma stuff is handled).  Amy Howe discusses the cases here. The main one of interest allows Justice Jackson to take part in a major dispute. The grant was foreshadowed by the other case not being scheduled among the released December Calendar cases. So, things wrap up nicely.

==

I grant (ha) that these sorts of insider baseball details interest me a lot more than the average person. But, there are a lot of little things of some importance (granted, "in a fashion" in various cases) going on at the Supreme Court. 

I continue to think there should be more clarity and assistance in understanding them. This would include Order List sections that are not merely screenshots of orders but with actual links to the docket page, so we can see what happened and read more on the case. 

Such things, including a frequently asked question (FAQ) page to clarify the basic parts of a typical Order List, would be quite helpful. Why not show the average reader (and many not-so-average) that even your run-of-the-mill order has some interesting little details.  

==

The Monday Order List was a bit more thin than usual (less than three pages). The Crook v. Sheriff reference was a bit amusing. 

"Rule 39.8" is a reference to a frivolous petition. A few justices back in the day (Stevens included) opposed this policy when it was first applied around 1990. I wonder if Justice Jackson has any thoughts given her criminal defense background. As usual, even for this thin Order List, a FAQ as well as links to the actual cases cited would have been careful.

Chris Geidner referenced the recent execution where the Supreme Court lifted a lower court stay with three justices merely citing their dissent without comment. He argues it is an institutional failure not to explain. He noted in a comment the quite true fact that liberal justices stay quiet for various reasons. All things considered, I still oppose not explaining the reasons or disagreeing with the result, at least in this case. 

There is a wider belief by some that the votes in each and every case should be open. I doubt this is really necessary and it would probably lead to a policy of default votes. Will there be a rule that non-binding straw votes not be allowed or something? I don't really care if a justice or two silently dissented in not granting a case today. I do basically consider it, not a dissent unless it is actually public. "Technically" true or not.  

==

Anyway, again, that's all she wrote for now. There is another execution scheduled later in the month. The next conference is on the 27th and then the month ends with two argument days. There are those pending stays from Robert and Alito. And, something else might come up.

The corrupt packed Supreme Court is never totally not working. 

SCOTUS Watch: Order List Day

The Order List was dropped today because yesterday was a federal holiday. Whatever you want to call it. 

An aside. I'm half-Italian, half-Irish, and joke that March 18th (between feast days for Irish and Italian) should be called "JP Day" in honor of my first and middle names. Columbus Day is not a great means to promote Italian heritage. The guy is a dubious character. 

(See here for a book summary that references the Italian thing.)

I referenced a New York gun regulation case that Sotomayor rejected in her role as circuit justice. The litigant tried again with Thomas. This maneuver is allowed but basically (am not sure if it ever worked) hopeless. It was here though it took a little while to process (referred to the Supreme Court conference last month).  

The other somewhat notable matter (see first link) is that Justice Thomas again made clear he does not like New York Times v. Sullivan (absolute malice standard for libel). The case was not a good platform to challenge it, says he, but the law is still bad and not originalist.  

Even Thomas in his statement notes "the law was not static" regarding free speech but argues the issue of libel was a state issue the Court "usurped" in Sullivan. Apply that to guns, maybe?  

Anyway, Justice White over the years also argued the law went too far in one direction but some reporter on the Supreme Court talking about "nuking" freedom of the press here is rank hyperbole. That sort of talk is how token limits are labeled as "course correction" (see my previous post).  Yes, his selective concern for originalism here does help some elites get protection (Trump is against the rule) but any change would not just help one side. Left-leaning types would also use weaker libel laws.  

===

There were not a lot of oral arguments scheduled this month (the end of the month is technically the November argument) though a few are notable for various reasons. An important administrative law case was up last week. 

A former Sotomayor clerk and Take Care Blog podcast host (remember that anti-Trump blog?) vs. Eugene Scalia (yes, that Scalia) today went head-to-head in a whistleblower case. Easha Anand sounded quite good, having the steady rational tone of the U.S. solicitor general.  

A former Trump acting solicitor general challenged the How Appealing Blog (appeals courts matters) in a maritime law case. Both are lower key cases, the sort of "meat and potatoes" that the Supreme Court should handle to oversee the interpretation of federal law. 

A districting case involving racial discrimination claims is up tomorrow.  

==

Today's Mental Health Awareness Day. It also is World Against The Death Penalty Day. A somewhat inapt day for an execution. 

Jedidiah Murphy was scheduled to be executed by Texas today. A district court granted a stay of execution. The conservative Fifth Circuit Court of Appeals upheld it 2-1 with a curious "fake" dissenting opinion as Chris Geidner discussed. I'm unsure how upset we should be about the dissent but it does seem at least childish. As he noted:

The district court had issued Murphy a stay of execution because of ongoing questions about Texas’s post-conviction procedures and the availability of DNA testing (or, to be more precise, unavailability) for certain people facing execution, including in a case pending before the Fifth Circuit.

The Supreme Court then -- without explanation -- vacated the stay. The liberals would have denied the request. Why? They didn't say. I have been on this point for a while now, but this pisses me off. 

And, this is not some longshot appeal which is basically a Hail Mary even in the eyes of this opponent of the death penalty. It is a more special case where a lower court (here a conservative one) held up an execution but the Supreme Court actively stepped in to overturn the stay. The "fake dissent" business just makes it more notable though again I don't know how much we should care about that sort of thing. 

A Dallas County jury convicted Jedidiah Murphy in 2001 for shooting and killing Bertie Lee Cunningham [79-year-old woman] during the carjacking. I continue to think that executing people on death row for over twenty years is problematic. (See Breyer dissent in Glossip v. Gross) One issue in the case is a dispute over the aggravating circumstances involved.

It is gratuitous to overturn the stay here. I guess the "fake" dissenter has the final laugh. Texas executed Mr. Murphy after the Supreme Court (now without dissent) denied one more request alleging the lethal injection drugs were tainted. He was one of the younger people executed at 48.

Over the years, various concerns involving the drugs (including secrecy and lack of clear guidelines) have not obtained much Supreme Court review at all after an early case (Baze v. Rees) involving procedural safeguards during the execution itself was rejected 7-2. Justice Stevens said the evidence was mixed but did suggest if the death penalty as a whole was at issue, he would deem it unconstitutional as arbitrary. Breyer concurred in judgment, only later turning against the penalty as a whole.  

Once, Jackson (with Sotomayor) dropped a written dissent after the execution. There is a bit of logic to doing this, not rushing to get it in by the end of the day or something. After noting my disgust on social media at the lack of a written dissent, I left that open.  I doubt it will happen but if she drops one later today, I will edit this entry.  

(I was going to publish this yesterday but delayed it when the execution did not happen until later in the day.) 

SCOTUS Watch: Libs Have Their Day

SCOTUSBlog provides a summary of the announcement of opinions which is even more helpful since the Supreme Court refuses to provide audio or video.  So, we can't see Jackson and Sotomayor provide a straightforward summary, Kagan have some fun with a dog toy case, and Roberts provide a long announcement with a bit of drama in a voting rights case.

Justice Ketanji Brown Jackson is first up with Health and Hospital Corporation of Marion County v. Talevski, finding that the Federal Nursing Home Reform Act unambiguously creates enforceable rights under Section 1983.  Barrett and Roberts concur to note why it is an easy case. Gorsuch flags a potential way to challenge something like it in the future. Alito and Thomas dissent.   

The case is one of those "trying to do too much but you never know" cases that worry liberal court watchers.  Another possible liberal win is federal regulations and/or criminal cases that are stretched too far.  Justice Sonia Sotomayor handled Dubin v. United States, which limits the scope of identity theft under a federal criminal statute.  Gorsuch, at times worried about federal power, concurred to snark a bit about how far they went.

Then, there are a range of pretty safe cases like the dog toy case which led to a trademark challenge from Jack Daniels.  Kagan had some fun with that one, including bringing a prop to the opinion announcement. Sotomayor (with Alito) concurred to touch upon one issue while Gorsuch (and Thomas/Barrett), while "pleased" to join, questioned the value of a precedent involved.  

The unanimity was a bit surprising, but it was a narrow holding turning on partially that the toy not merely being a parody but a "brand" itself.  We get pictures too.  

===

The last way for liberals to win is to avoid backsliding on important matters (such as the Voting Rights Act).  You might also get a narrow win that is nice but not too exciting, especially since it is a 5-4 breakdown on something that should be much less divisive.  And, sometimes you have a somewhat (or more than somewhat) surprising win.

Allen v. Milligan has a bit of each. President Biden said:

Today the Court ruled that Alabama likely violated the Voting Rights Act by drawing a map that diluted Black votes in the state. The right to vote and have that vote counted is sacred and fundamental — it is the right from which all of our other rights spring. Key to that right is ensuring that voters pick their elected officials — not the other way around. Today’s decision confirms the basic principle that voting practices should not discriminate on account of race, but our work is not done. Vice President Harris and I will continue to fight to pass both the John Lewis Voting Rights Advancement Act to restore and strengthen the Voting Rights Act, and the Freedom to Vote Act to ensure fair Congressional maps and that all Americans have their voices heard.

Multiple voting rights advocates were rather shocked at this. Some did remind us that this is the one that the Supreme Court held up in 2022 on their shadow docket (see Steve Vladeck's book) and in the process (others also were blocked) helped the Republicans win a narrow victory in November in the House elections.  The margin of victory was less than the number of House districts involved, all likely to have been Democratic-leaning if the lower court rulings were allowed to stand. 

So, yes, I agree with Prof. Melissa Murray's take.  We can note the victory without being too excited.  People are also not really sure that the ruling turned on the law. One professor argued this was partially Roberts' revenge for Dobbs (abortion).  Many figured it is a response to criticism and concern about going too far.*  Kavanaugh (who was the one vote that switched and who joined most of the opinion) seems to be the sort of prudential sort that would find such weighing quite copacetic.  

Others warn about what is to come -- we didn't have too many really bad rulings this term and the affirmative action case among others are coming.  I think all of these issues (not sure about the revenge thing as much as Roberts finding a mild way to balance it to show the Court is reasonable) play some part in judging.  Lines are drawn. They aren't just mechanical. Wins have some baggage.  

And so on.  Somewhat related, the voting rights advocate Dale Ho (nominated in 2021) appeared to be finally about to be confirmed as a district court judge in New York.  But, a Democratic senator was out for health reasons and it seems Manchin might not want to support him (Manchin rarely opposes nominees, and unclear why he is being a tool unlike say an environmental secretary) so there was no margin for error.

This led to the confirmation being held up.  This pisses me off. Not a single Republican was willing to at least not vote because they so despise voting rights that a blue state district court judge cannot be confirmed.  Why should they get any comity like blue slips if they refuse to act reasonably?  

It is just evidence of having them play you as fools. Dick Durbin is an asshole on this.  The evidence that Republican hardball in the courts helped to win them the House of Representatives only reaffirms this is not a time to be soft.  It isn't too hard.  It just isn't.  It pisses me off.  

===

More to come next week (orders and two days of opinions).  

---

* One Slate analysis argued part of it is that Roberts is bothered by "really bad arguments or overreaching activists."  

And, at one point suggests (a bit tongue in cheek) that "perhaps we have reached the part of the show where simply not being punched in the face over and over at the high court counts as a good day."

Still, the opinion is the law, and lower court judges can't just say "Hey, he didn't really mean it."  This includes a respectful summary of the Voting Rights Act precedents and Kagan comments like:

The principal dissent complains that “what the District Court did here is essentially no different from what many courts have done for decades under this Court’s superintendence….” That is not such a bad definition of stare decisis.

Anyway, life goes on.  

ETA: Also, Melissa Murray and Steve Vladeck co-wrote an op-ed to expand their Twitter comments. Bottom line: don't be fooled into thinking all is well.  Biden reminded us we need a voting rights bill.  Holding a flawed line is not fantastic. 

And, SCOTUS needs to be reformed, including addressing the likes of Kavanaugh, who might eventually, kinda do the right thing, at times.  Don't settle for crumbs or even a bit of crust.

People have pushed back on their tone since it was not a trivial victory.  But, it's too late not to be wary.  And, Kavanaugh was the fifth vote, tossing in a possible poison pill. Ditto that 7-2 with three justices in the majority making sure to hedge and limit.  

SCOTUS Watch: Jackson Dissents

June is typically when there are a bunch of hot-button cases decided by the Supreme Court. The month started relatively softly with three cases, two unanimous.  Few care about either.  The third was a bit more tricky.  

Thomas: "The justices sided with whistleblowers on Thursday in a dispute over whether two pharmacy giants – SuperValu and Safeway – knowingly overcharged Medicare and Medicaid for prescription drugs."

Gorsuch: "rejected a lower-court ruling that had substantially broadened liability for publicly traded companies under Section 11 of the Securities Act of 1933."  

While the basic right to strike remains intact following the court’s decision, Glacier fits the pattern of this court: chipping away at labor rights. Sometimes the justices do it in big chunks and sometimes in smaller ones. But this case, like the others, moves in the same direction.

The third is something of a 5-3-1 "anti-union" opinion with the controlling opinion making it harder for unions, but how much is unclear.  Barrett has the main opinion with Thomas/Alito being joined by Gorsuch willing to go further. All don't write much. Jackson, in her first dissent in a case receiving a full review, wrote an opinion longer than them all together.  

“Workers are not indentured servants,” she wrote, “bound to continue laboring until any planned work stoppage would be as painless as possible for their master.”

Jackson's dissent is strong, starting with a bedrock statement: "The right to strike is fundamental to American labor law." She criticizes the majority for not being "modest" and "reaching out" and its "misguided foray" etc.  And, she says that the majority is trying to have it both ways (minimalist and reaching out -- signs of a compromise?). Later she notes they "seem to misunderstand" and then argues it ignores congressional intent.

The general assumption seems to be that Sotomayor and Kagan went along with the majority since it is the best they could get with three conservatives willing to go further.  Plus, maybe, they simply think the result here is narrow.  It is a brief and mostly dull opinion that lets the dissent be.  Alito briefly references it.  The dissent is somewhat curiously mostly solo.  

And, as noted by Jackson herself, on remand, the reach of the majority's result, in this case, can be relatively slight. The fear is it will in later cases put labor in a harder position.  At any rate, it is a chance to see Jackson speak her mind and show her in action.  This time not joined by Gorsuch or anyone else.  

[Chris Geidner covers this in his excellent analysis.]

==

We will see how this term's affirmative action cases will go but this is a good discussion on why class-based alternatives only go so far.  Here's a bit on an Oklahoma abortion case.  And, a reminder -- lest we forget -- that the Supreme Court is worthy of some contempt:

They have been spinning their ethical lapses (Justice Clarence Thomas), blowing off congressional oversight (Chief Justice John Roberts), giving interviews whining about public criticism (Justice Samuel Alito) and presenting awards to one another (Justice Elena Kagan to Mr. Roberts).

The op-ed also notes how the Supreme Court in the Roberts years has been taking on more and more power while having a superior view of itself as "outside" of the political process.  This sense of superiority is as Stephen Vladeck argues something that should be pushed back upon. 

I have a general rule that history suggests ebbs and flows in various respects but few "golden ages."  I do not think -- not that the op-ed quite says this -- that this view is new in the last fifteen years. 

The Supreme Court has had an expansive view of itself for a while, in part a development of the growth of the government as a whole.  The Lochner Era got pushback for invading appropriate economic regulation but it left in place (not always ideally) a lot of other things (see segregation).  

I have a degree in history and write about it these days for another website. History overall is important. It's something to keep in mind.  We do also have to live in our own time. So, it is okay to view things through the lens of the Roberts Court.  Look at what it is doing.  Respond to what is in front of us.  

The op-ed is correct to say the liberals on the Court are not free from blame. I have noted my disdain for their tendency to circle the wagons. There are moments. Sotomayor in her appearances repeatedly teaches that don't who believe change is needed should resist.  She grants she doesn't like certain things that are happening results-wise.  

Kagan has criticized the shadow docket. It is not surprising that she is the first one that labeled why she recused in a case.  When she introduced Roberts, she noted there are things that make her want to pull her hair out.  Yes, she or Sotomayor could have shown up.  Or Jackson. 

But, they would be not private parties.  They would be representatives of the Court.  It is fitting that that is done by agreement among the justices.  We don't know if Kagan or someone else suggested that Roberts or maybe a liberal/conservative tag team show up.  Or, how that attachment to Roberts' letter that was signed by all the justices (which spelled out basic ethical rules they followed ... somehow) was negotiated.  

Telling fact.  I was disappointed by Biskupic's latest book because this internal "behind the scenes" aspect was in my view not really provided enough to add much to what I already knew about the events.  Adding to the lack of many results, it is not a very satisfying mitigation.  I do think the liberals have some agency here though they have limited power. 

==

There will be more orders on Monday and another opinion day next Thursday.  And, perhaps an execution.