SCOTUS Related News

Originalism 

This blog post on originalism is interesting even beyond the specific allegation. Originalism appeals to people for various reasons. Sometimes, outdated bad stuff helps conservatives. 

When they want to support things that actual original understanding might not support (e.g., campaign finance bans or regulatory takings), they find a way around it. It's a bit of Calvinball. 

For instance, Dred Scott v. Sandford had to play with history. The dissents show another path.

Brazil Recognizes Rule of Law 

Bolsonaro to Start Serving 27-Year Sentence Over Coup Plot

Trump v. U.S. and the end of the Georgia prosecutions are not the only way. Multiple former Brazilian leaders were prosecuted for crimes. 

I still don't understand, regarding the Georgia news, how some ethical issue involving a romantic relationship with the third choice for prosecutor was some sort of due process issue. Fani Willis at most should have gotten an ethical slap on the wrist. 

As with Trump v. U.S., there was no need for the state supreme court to take the case, delaying things until after the election, which sealed the deal. And that included many state defendants who still could have been prosecuted now. 

Limited Security Funding 

As judges face more threats, only the Supreme Court gets new security funds

The number of judicial threats has increased over the last ten years. Trump's vitriol does not help. It led to multiple threats and even some actual sanctions during his civil and criminal trials. For what good that did.

The failure to provide more security funds for lower court judges (tough on crime!) is suspicious.

According to several former judges, the money issue has also fueled perceptions that President Donald Trump’s administration and its allies in Congress have politicized judicial security. In hearings this year on the judiciary’s budget, some Republican lawmakers criticized judges who had ruled against Trump’s policies and pressed judiciary officials who testified on whether they would try to rein in what the lawmakers called a partisan judicial process.

Right-wing attacks are not the only cause of judicial threats. Vitriolic attacks from the top, however, matter. It worsens the situation. It leads to some more harassment. An article linked to the recent piece notes:

A simpler solution, several former judges said, would be for Trump administration officials to cool their rhetoric, which they believe fuels threats from extremists and fanatical supporters. While the White House has denounced violence against judges, President Donald Trump and some of his most powerful allies have continued to use inflammatory language to lambaste those who rule against administration policies.

In social media posts Wednesday and Thursday, top Trump adviser Stephen Miller called a federal trade court’s ruling against the president’s tariffs a “judicial coup” and reposted photos of the three-judge panel, saying, “we are living under a judicial tyranny.” 

[More here.]

More Trump News 

The Supreme Court *delays action* on Trump's request to fire Shia Perlmutter, the register of copyrights at the Library of Congress, pending the court's decision in two upcoming cases about the president's authority to fire federal officials. Thomas would let Trump fire Perlmutter now.

(Mark Joseph Stern on Bluesky regarding a Wednesday Order. No discussion from justices.) 

The second case is scheduled for January, so it will take some time. Meanwhile, the justices will be back on Monday with stuff scheduled until the 15th.

SCOTUS Watch: Orders

Texas Restricting

I started this blog in the middle of the first Bush43 Administration. Various shenanigans going on now, including mid-decade redistricting to obtain partisan ends, went on back then, too. A feeling of deja vu.

A 2-1 Fifth Circuit opinion provided a surprising win for the Democrats when the mid-decade Texas redistricting (which led to a retaliatory California effort) was struck down as an illegitimate racial gerrymander. Trump Administration shenanigans were involved. Their incompetence strikes again. 

The Supreme Court earlier held that political gerrymanders are non-justiciable in federal court. The Rucho opinion ended a 4-4-1 stalemate where conservatives wanted to prohibit such appeals and liberals tried to get Kennedy to agree to join them the other way. Kennedy, while not giving a firm "no," never gave them that fifth vote. 

The Supreme Court left such appeals open in the 1980s. I don't know how much the federal courts actually restrained the process. 

I am not aware of any SCOTUS case that struck down a partisan gerrymander (racial gerrymanders were found). The blog discussions against Rucho tend to skip over that part. Not saying Rucho was meaningless. Curious how much it changed things.

There was a very unhinged (and somewhat counterproductive) dissent to the court of appeals opinion. Justice Alito on Friday granted Texas an "administrative stay" on Friday and sped up the briefing. A response is required by 5p.m. today. 

Never-ending drama.

Order List 

Today's Order List is the last thing scheduled until the beginning of December. It had some interesting bits.

As Chris Geidner noted on Bluesky:

The Supreme Court grants no new cases for merits review in today’s orders list, but it does summarily reverse two lower court rulings in criminal cases—one holding a constitutional error in a Mississippi trial, the other holding the Fourth Circuit improperly ordered a new trial in a Maryland case.

The Mississippi case struck down as unconstitutional a law providing a blanket ability to screen child witnesses. A split SCOTUS opinion earlier upheld the practice, but held it must be "case specific." The Court, in a five-page opinion, left open the possibility that the screen would be harmless error in this case.

The case first came last spring and was distributed to multiple conferences. This suggests some concern. I think the case should have been accepted for full review and oral argument.

The Court also (again) refused to take a case to reconsider the Feres doctrine regarding immunity regarding certain military claims. 

Gorsuch would have taken it. Thomas again wrote to explain why he thinks so, too. Sotomayor is sympathetic but argues that stare decisis warrants leaving it to Congress to fix. She makes a good case. 

The petition for a writ of certiorari is denied. The Chief Justice and Justice Alito took no part in the consideration or decision of this petition.

Only Kagan and Jackson (and somewhat inconsistently Sotomayor) deign to explain why they recuse.

===

The justices will hold oral arguments in the first two weeks of December. 

Then, there is an Order List scheduled for 12/15. That is the last thing scheduled for 2025. 

Other stuff is likely to drop.

ETA: A reference in my daily SCOTUSblog email warrants an addendum.

plainly, courts “call balls and strikes”; they don’t get a turn at bat

The second criminal per curium given short shrift in my comments drops a "balls and strike" reference. 

The lower court explained how the Supreme Court allowed them to raise a problem with a trial that was not cited by the petitioners. So, it is unclear whether the justices were right to call them out here. 

But, overall, the justices don't just call balls and strikes. The Supreme Court repeatedly gets a turn at bat, including changing the questions raised by the lawyers for appeal. 

They also have a lot of power over the batters, including who will get a time at bat, when they will get a time at bat, and what they should do there.

The per curiam quotes an earlier opinion (by Kagan):

In line with our duty to call balls and strikes, we granted certiorari to resolve the split, 589 U. S. ___ (2019), and we now affirm.

Do umpires generally "call balls and strikes" by settling nationwide disagreements on strike calls via official statements of what the rules are?

Meanwhile, here's some more (from me) on judicial review, one of some new essays on that website. 

More Executions (and other Court News)

Bryan Jennings

He was convicted to die for the rape and murder of a six-year-old girl in 1979. Breyer's dissent explains why it is wrong to execute him over forty-five years later. Others are glad "justice was finally done."

The Supreme Court on Wednesday (the day before the Florida execution), without comment, disposed of a final appeal. They argue due process concerns, particularly involving his right to counsel. 

Jennings was a veteran. A study determined they were overrepresented on death row. 

Tremane Wood [Commuted]

Tremane and his brother were involved in the robbery/murder of a nineteen-year-old in 2004. 

His brother admitted to the actual murder. Tremane was still guilty of felony murder. That was enough for a death sentence. The Oklahoma Pardon and Commutation Board voted 3-2 to recommend clemency. The choice is legally left to the governor.

The brother was sentenced to life imprisonment. Tremane's defense had issues, including his attorney drinking heavily (and maybe using cocaine) during the trial. Sounds like a possible Sixth Amendment issue.

Tremane's current lawyers dropped multiple final appeals, including raising due process and discrimination claims. Gorsuch was recused, the case coming out of Oklahoma, his former circuit. 

The second and third cases took twenty years. That is better than forty-five. It's still too long. This case is also the most troubling of the three. 

Only Jackson, without comment, dissented in a final appeal regarding the illegitimate withholding of evidence. It's somewhat moot -- though she still should have explained why -- since the governor (for only the second time) agreed with the board. 

He won't be executed. 

Stephen Bryant

The third execution (11/14 this time) scheduled this week took place in South Carolina. 

Bryant is being put to death for killing a man in his home. Investigators said he burned Willard "TJ" Tietjen's eyes with cigarettes after shooting him and painting "catch me if u can" on the wall with the victim's blood.

Prosecutors said he also shot and killed two other men he was giving rides to as they were relieving themselves on the side of the road during a few weeks that terrorized Sumter County in October 2004.

Claims of mitigation (brain damage) were rejected. SCOTUS rejected a petition (without comment) regarding the matter last month. 

He chose to be executed by a firing squad, which reportedly did not go off without a hitch each time it was used by South Carolina this year. 

By one early report, it went okay this time. 

Other Court News 

January Calendar 

The new year will bring some big oral arguments. 

Trump Deportation Horrors 

Sotomayor and Jackson, without comment, would have granted a stay regarding sending a seven-year-old girl and her mother back to Venezuela. The girl has lived in Texas for the last three years. 

One thing that showed up in a book of opinions by Judge Learned Hand is his strong concern about uprooting non-citizens from the U.S. who have spent a long time here. He saw it as a sort of punishment, quite appalling, and worked hard to find a reason to avoid it if reasonably possible. 

The lower court split 2-1 here. 

Jackson and SNAP 

The end of the shutdown ended a shadow docket dispute involving withholding SNAP funds. 

Still, starting Friday Night, Justice Jackson did the best should could to use her power as circuit justice to speed things along. She held strong to the end, opposing an extension of her "administrative stay," even though by then it was apparent the budget would be approved shortly. Good for you. 

Another Order 

Sotomayor provided an administrative stay to hold things up in a case to consider the matter. She provided a final ruling on Friday:

Order entered by Justice Sotomayor: Upon further consideration of the application of counsel for the applicant and response filed thereto, it is ordered that stay heretofore issued by Justice Sotomayor on November 5, 2025, is hereby vacated. Give [typo in the original] the Government's representation that it will not transfer the funds outside of the United States before the disposition of any petition for a writ of certiorari, the application for stay is denied.

SCOTUSblog summarized:

Issue: Whether the Supreme Court should pause enforcement of a judgment granting control of $40 million in funds from the estate of Ferdinand Marcos held in an account in New York to the Republic of the Philippines while Filipino human rights victims who won a $2 billion judgment against the estate appeal the judgment.

Note how Sotomayor briefly examined her ruling. That can be done for many a shadow docket ruling, though sometimes it might warrant a bit more.

For instance, there were two orders handed down in death penalty cases, one with a dissent, and neither provided any explanation. Not ideal. 

[The typo ("Give" for "Given") is on the docket page but not the entry on the orders page. SMH.]

The Fall of Affirmative Action (Not Quite)

I wrote about the Jimmy Kimmel (WTAF) suspension at my Substack. A very woke/triggering affair.

Justin Driver's first book was a long-form work about Supreme Court cases involving schools. This book is part of a series intended to be quick reading. 

It supports affirmative action, but generally takes the Supreme Court (to be specific) overruling race-based affirmative action as we know it as a given. It argues (1) that it is counterproductive even granting the majority's premises, (2) there are (quite imperfect) means left to fulfill the ultimate goals (e.g., targeting certain residential areas). 

Prof. Scalia (as he then was) wrote an anti-affirmative article, short and not so sweet, back in 1979 entitled The Disease as Cure: 'In Order to Get beyond Racism, We Must First Take Account of Race.' Let's say he was not a fan of Justice Blackmun's Bakke argument, later reaffirmed by Sotomayor and Jackson.  The familiar arguments are there.

My father came to this country when he was a teenager. Not only had he never profited from the sweat of any black man's brow, I don't think he had ever seen a black man. 

This could have been said (if he considered such things; I never recall him talking politics or such ideological sentiments) by my Italian father around that time. His father was an Italian immigrant. It would be a lie. 

The article doesn't even consistently demand the premise. Scalia later acknowledges that such white ethnics might have "been the beneficiaries of discrimination against blacks." It would just be comparing a "mountain with a molehill" to put it on par with slavery. 

Sotomayor and Jackson use their dissents in the 2023 opinion to summarize just how much racism is still a thing almost 45 years after he wrote that. Shades of Shelby v. Holder, but before Reagan was elected president, he sold a bill of goods that racism was really just a shadow of a problem.

Scalia argued he was fine with programs not based on race, even if most or all beneficiaries were black. He supported the needs of black people "because they have (many of them) special needs, and they are (all of them) my countrymen and (as I believe) my brothers."  

A nice sentiment, but dubious if we ignore specific needs and problems that are not general. They are racial, and the solutions will be racial too. Also, aside from the regular support of these people of racists (most recently, Trump), there is regularly no serious attempt to do the hard work to stop racism and its effects. 

It is hard to take claims of good faith. They are not akin to Justice Douglas, who opposed race-based affirmative action but was willing to require much heavy lifting to address racism in other ways. Some minority of affirmative action opponents (many of whom still vote for Trump) might be more willing than others. But in the end, they are wanting. 

Education is fundamental to republican government. The right to education is protected in state constitutions. It is an appropriate concern of the federal government. It should be deemed a fundamental right. Good education requires a lot of work by everyone involved. 

The book also argues that liberals sometimes are too wary about acknowledging that affirmative action is imperfect. The claim has some bite but is exaggerated. 

For instance, repeatedly in the dissents, it is emphasized that race is only a factor in affirmative action programs. They are carefully structured. Rightly so.

Conservatives, including Justice Thomas, argue that affirmative action leads people to assume that all blacks are unqualified. The author flags the concern while noting it is at least overblown. I firmly agree. 

The assumption exists that there is no affirmative action. Perhaps, the ultimate problem here is racism. A black lawyer passes the bar after an impressive academic record at Harvard. Why should a person doubt their qualifications? 

I think that a range of techniques should be used to promote both diversity and racial equality. These techniques require much work. The goals, however, are valid. DEI is a good thing. Diversity, equity, and inclusion are good things.

Republicans agree when it suits. The "praying coach" case reaffirmed the importance of a "free and diverse Republic." Religion can specifically benefit in promoting those ends. 

A specific enumerated concern about the establishment of religion does not change that. Ideally, the Supreme Court would more seriously respect how free exercise and the establishment concerns should be balanced. That's another fight.  

The Equal Protection Clause, some comments by Justice Scalia notwithstanding, does not reference "race." Sotomayor is correct to highlight the text. Equal protection sometimes requires considering individual characteristics. 

Race included. We must be careful. Race specifically is a concern of the Fourteenth Amendment. Still, the Equal Protection Clause is more open-ended, including over 150 years of using race to promote racial equality.  

The "end" of affirmative action -- even the majority opinion leaves open military academies, among other things -- has somewhat been exaggerated. The Supreme Court has overall just provided a misguided approach, often more lip service than real, in fighting the use of race.

Anyway, Justin Driver's book is well recommended. I have not fully covered many of the subjects covered. Check it out. 

Charlie Kirk Killed

I discuss the murder of right-wing troll (with some left-wing supporters), Charlie Kirk, here. The killer has been captured after a family friend notified the police and convinced him to surrender. Good thing as the FBI was having issues.

Undocumented Immigrants and the 4th Amendment

First off, the Supreme Court "refused to step in, for now, in a dispute over one transgender student's bathroom access in South Carolina." 

It stated that it was not ruling on the merits but was only acting, given the rules for emergency action. 

How they applied such rules was not cited. Notably, it gave that reminder here. Thomas, Alito, and Gorsuch, without saying why, would have granted a stay. 

It is depressing that this is still an issue in 2025, but that is where we are at. 

===

I also wanted to say more about this week's ruling regarding ICE searches and seizures of possible undocumented persons. Kavanaugh's concurrence assumes they have Fourth Amendment protections. 

Also, a major concern here is the wrongful treatment of documented persons and citizens. Still, what about undocumented immigrants, particularly? What rights do they have in this context? 

The Fourth Amendment speaks of "the people." Are undocumented persons members of this class? The question does not appear to have been conclusively decided by the Supreme Court. There is usually a way to avoid it, again, because the rights of clearly protected people are involved.

Undocumented persons are constitutional "persons" who are protected by the Fifth and Fourteenth Amendments. The Supreme Court has long held that those here "illegally" are protected. Shaughnessy v. U.S. (1953):

It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. The Japanese Immigrant Case, 189 U. S. 86, 189 U. S. 100-101 (1903).

Plyer v. Doe reaffirmed that both due process and equal protection apply, including when the federal government is involved (the Fifth Amendment has an equal protection component). The right to expel someone does not bring unlimited power. 

Since unreasonable searches and seizures invade "liberty" (how else was it incorporated?), why doesn't due process cover this ground at any rate? The reference to "the right of the people" probably primarily limited the rights of slaves. 

U.S. v. Verdugo-Urquidez held that "the people" included "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." 

Undocumented immigrants, at least some of them, should meet that test. They can be here for a long time, have jobs, citizen families, and so forth. That is, if you read that test reasonably. The law is not always reasonable. So what does it say? 

A previous Supreme Court opinion (INS v. Lopez-Mendoza) assumed they had Fourth Amendment protection. This one made sure to say that the question was left open since it was dicta. 

Undocumented persons are persons. They have rights. These rights are based on the Constitution, statute, and international law. Can an undocumented minor be subjected to a strip search in a way that shocks the conscience? 

All persons, no matter their documentation, will ultimately be protected from unreasonable searches and seizures. At least to some degree. 

ETA: Sotomayor stayed a trial pursuant to a request that argued it was warranted by an upcoming case. 

At SCOTUS

In early June, the Government launched “Operation At Large” in Los Angeles, deploying roving patrols of armed and masked immigration agents to local car washes, Home Depots, tow yards, bus stops, farms, recycling centers, churches, and parks. Over the course of the next month, the Government made nearly 2,800 immigration-related arrests and detained many more.

Justice Sotomayor, for the liberals, then explains how racial profiling was used. She also summarizes the lawsuit. The district court, as usual in these cases, writing an extensive opinion, held for the challengers. 

The judge is a well-experienced child of Ghanaian immigrants. The Ninth Circuit upheld the opinion. The Supreme Court stayed the opinion without saying why. Kavanaugh, in a dubious mansplaining way, alone has an opinion. The dissent is double the length. 

Law Dork has more. A reasonable (at some point, that is a sarcastic term), conservative-leaning professor defends the decision. I am not that keen on his take and tone, but hey, what am I to do to challenge a Fourth Amendment expert? 

It has a comment from "anon" that in part compares abusive practices by normal police and ICE agents:

There are disincentives to cops doing this. They can get sued, or evidence can get suppressed, and the case thrown out. Employers of cops also have incentives to train cops to make sure they don't run roughshod over the Fourth Amendment, since they can also be subject to liability (either directly or through indemnification), and since they would also rather not have evidence suppressed in criminal cases. Some of those employers also buy insurance for these sorts of situations, and those insurers are doubtless also keen to make sure that officers know the law.

Those disincentives don't apply to the ICE agents who participate in these roundups. Civil remedies against federal agents for violating Fourth Amendment rights are very weak. And these raids are not about detecting and punishing crime.

Another professor provides another take on a key standing point. Lots of legal minds found the decision quite appalling. There is also a hypocritical tint.

Meanwhile, Chief Justice Roberts handed down an administrative stay that seems to, in effect, overturn a 1930s Supreme Court opinion that protects many agency personnel from at-will presidential removal.

This might just be a temporary thing, since an administrative stay is temporary. Many are not that optimistic. We shall see.  

This all makes me feel fine. That is, f-ed insecure neurotic and emotional. 

Don't worry. Barrett, doing her book tour now, thinks there is no constitutional crisis. 

As Sotomayor noted, dropping the "respectfully," I dissent. "I dissent" should be the normal thing. 

==

Okay. That was yesterday. I was going to leave it there, but there was more action today. 

John Roberts issues another "administrative stay," this time blocking Judge Ali's preliminary injunction in the foreign aid funding case while the Supreme Court considers DOJ's request (which was denied by the DC Circuit). [h/t Chris Geinder]

They will also decide the "Trump tariffs" issue. They are speeding along. No slow walking like in the Trump immunity case. Why? It surely is not because there it helped Trump that things went slowly. 

The new term starts on the First Monday in October. 

Kilmar Abrego Garcia Update [He's No Out Anymore]

Here is a bit of reaction to the latest news. He's back, after about five months (imagine that), with his family. For now.

Kayle Barrington Bates [Maud Dib Al Sharif] Executed

He overpowered her and forcibly took her from the office building to the woods where he savagely beat, strangled and attempted to rape her, leaving approximately 30 contusions, abrasions and lacerations on various parts of her face and body. Bates was found at the scene of the crime and he had the victim's blood on his clothing. He had the victim's ring in his pocket.

This is another horrible crime that warranted a long prison sentence. In many countries, imprisoning someone for this crime for over forty years (as here) would be deemed cruel and unusual punishment. 

It is overall rather serious. Justice Breyer remains correct in arguing that there is a constitutional problem with executing someone after all this time. The state interest has significantly decreased. 

You are executing a different person. After they were in prison for decades. I think it is a form of euthanasia to end the life of a certain subset of senior citizens. 

There is also a claim that Florida has applied the death penalty in an illegitimate racial way. They have done so in the dark, so to speak, adding another layer of difficulty. The Supreme Court was not accepting of a comparable claim back when he was in prison for only a few years. They are not much more open to it. 

The claim was given somewhat more attention with two amicus briefs provided. I think that is worthy of a bit of discussion from some justice before the state executes the tenth person (a third of the national rate) this year. They have another one scheduled later this month. 

No comment. The usual no comment final orders. That is wrong. Wrong Sotomayor. Wrong Jackson. Wrong Kagan. Wrong all the rest.  

One new claim, rejected by the state as long past its sell date, is that he has "organic brain damage" that makes it unreasonable to execute him. Such claims are hard to prove. My stance is that when the death penalty is involved, a big thumb should be on the scales on the side of the challenger. 

He was first sentenced by an all white jury. He was resentenced in the 1990s by a 9-3 vote. Only Florida and Alabama allow non-unanimous juries to authorize the death penalty. The Supreme Court has determined that the original guilt phase must be unanimous.  

The Supreme Court has not directly addressed whether this is acceptable, but repeatedly (with Sotomayor flagging it) refused a request to do so. I find it dubious. An execution effectively involves a special crime, the worst of the worst, murder. 

(The Supreme Court, in dicta, allowed drug kingpin-type laws where murder is not directly involved. Also, treason and war crimes are treated differently. Military crimes, including rape, have also been left open.)  

I think it warrants a unanimous jury, at least, if that is the rule otherwise in place. If only two states, states where racism is still a concern, emphasizing the value of a unanimous jury, allow them, it makes it harder to justify. "Due process" is partially a matter of looking at normal procedures nationwide.  

Anyway, executing someone over forty years after they committed a horrible crime, whatever name he uses, is misguided at best. Even without there appearing to be some other red flags. 

August Sixth

Three important things happened today over the years. Other things happened. These things stand out.

Hiroshima

A nuclear bomb was dropped on Japan in 1945. We have since then debated if it was just to do so.

One analysis today suggests the Soviet Union's entering the war factored in. Experts still debating suggest that just maybe people in the midst of things acted reasonably. 

Not necessarily correctly. But 20/20 hindsight is easier than a decision in the middle of a world war. 

Voting Rights Act 

The Voting Rights Act of 1965 was a fundamental defense of basic republican values. Voting rights are still threatened today. Rick Hasen's right-to-vote amendment idea (and his book discussing it) is worthwhile. 

I think the current Constitution protects a right to vote, but it has not been adequately applied in recent years. An amendment could also address such things as people in territories not being able to vote for president. 

A new Voting Rights Act is a fundamental goal when sanity returns to the national government.  

Bin Laden 

Today was also the date of the infamous "Bin Laden Determined To Strike in US" presidential daily brief. 

The Bush Administration assured us no one would have expected something like that. See also, the chance Iraq II would go badly. No one expected that!

I am not going to say that President Gore would have stopped the attacks. There was reason to think Clinton/Gore were paying more attention to the overall threat of Bin Laden. But it assumes too much to think Gore would have stopped 9/11. 

It is more likely that the Gore Administration would have focused on Afghanistan and not invaded Iraq. How Gore would have handled Afghanistan -- it lingered on until the Biden Administration -- is also unclear. Some are a bit too cocksure about things. 

Here is a discussion on 9/11/21. 

Justice Souter Remembered

Strict Scrutiny Podcast during the summer has an opening news segment and follows up with an interview. The latest involved two Souter clerks talking about the recently deceased justice. 

Souter is probably my favorite modern-day justice. I was wary about him when he was confirmed. Why would I not? I was younger, and any nomination by a Republican president, especially to replace William Brennan, would be a problem. 

Souter had some dubious early votes, including Rust v. Sullivan. Still, he was part of the Planned Parenthood v. Casey (abortion) plurality and soon was fairly consistently voting with the liberals. He was no Brennan. But he was overall very good, including on the separation of church and state. 

I also like Souter's personality. He is more personable than I am. I am less of a Luddite. But his quiet, studious, and friendly character is something I firmly support.  Souter is the justice that I can most relate to in various respects.

He did join the majority in Payne v. Tennessee (1991), helping to overturn a couple of recent opinions involving victim impact statements. This was Justice Marshall's swan song, and his dissent was a somewhat hypocritical paean on stare decisis. As if honestly worried about that as a neutral principle

Marshall was worried about the new membership overturning various 5-4 majority opinions that he liked. And, though perhaps not quite the ones he specifically listed, that would happen in time. Roe v. Wade, one opinion he felt was doomed, was saved in the short term after he retired. 

Souter was later concerned about the lengths taken to produce victim impact statements. Payne himself was not executed. He was due to be executed in 2020, and then it was delayed due to COVID. Ultimately, his sentence was commuted to life imprisonment. 

Payne, even after all this time, is not even sixty years old. His ultimate fate is also a reminder that a Supreme Court opinion is not the end of the line. 

Different favorite Souter opinions were cited, including one involving voting rights (voter ID) and another concerning DNA testing. The dissent was something of a swan song involving Souter's support of substantive due process and common law judging. 

Souter supported the challenge on a narrower ground than the other liberals. He was open to a constitutional claim developing, but was careful about declaring it was already established. I have seen someone arguing that this 2009 dissent was a subtweet about same sex marriage. The law needs to get used to certain things.

This liberal judicial humility was sort of Brennan-lite and reflected in his famous Harvard speech. Again, I firmly agree. I have some broad views, but recognize there are some limitations about applying them.  

Souter was also known for his humor, somewhat dry and self-effacing. A famous case was when someone confused him with Justice Breyer. 

I have talked about Souter before, but we need to keep on remembering role models in these times. 

ETA: Justice Souter was originally given the dissent in the Citizens United case, but the majority expanded the stakes. Justice Stevens later said he used a chunk of Souter's original dissent in writing his own.

There appears to be some behind-the-scenes shenanigans in a voting rights case that the Supreme Court set for reargument. They got around to (late Friday in August) to flag what they have in mind. 

Richard Hasen and others are worried.  

Skydance and Paramount Merger

The sole Democratic appointee left at the FCC (there are two vacancies, one of a myriad of examples) is opposing the merger of Skydance Media and CBS parent company Paramount. This merger has raised many red flags. 

She called Skydance “cowardly” for agreeing to adopt “never-before-seen controls over newsroom decisions and editorial content” that she said violate the First Amendment.

Lots of people think the merger has something to do with Stephen Colbert not being resigned next year. Senator Wyden raised various red flags. Paramount decided to sacrifice the First Amendment to help things along. 

Let's not forget about that. They had a settlement in a frivolous Trump lawsuit (lawfare is okay if Trump does it) involving typical news editing. This helped feed the conspiracy theorists/crybabies that the media is anti-Trump. The link shows that that was not the only such "business decision" that the media has made to help Trump. 

On Tuesday, as part of the review process, Skydance committed to undergo “a comprehensive review of CBS” after the completion of the transaction and to create an ombudsman role for at least two years to handle complaints of bias at the network. The company also pledged to eliminate diversity, equity, and inclusion (DEI) initiatives, an action Carr has said is a prerequisite for any merger approval.

This paragraph from the Washington Post article linked above caught my eye. Brendan Carr, who was first appointed by Trump 1.0, is now the leader of the FCC. His m.o. is suggested by his recent potshot at Stephen Colbert. Going after DEI, a Trump bugaboo, is more Trumpian bullshit. 

DEI means "diversity, equity, and inclusion." Nothing is wrong with those things. The attacks on certain DEI initiatives are "anti-woke" bullshit. It also allows the Trump Administration to do things like control universities. 

The NPR article linked above provides some scary details involving Carr's efforts to interfere with the news. The ultimate owners of newspapers and television news programs are not stepping up against that. When Rupert Murdoch is the hero (low bar) of the day, you are in trouble.

Anna Gomez, the Democrat appointed FCC commissioner, is due to serve her term into next year. The Federal Communications Commission is allegedly an independent agency. Recent Supreme Court shadow docket orders show the limits of that. Trump has two more vacancies to fill. The "rules" say one of them must be a non-Republican. 

Let's end with a discussion of what should be going on here. The settlements should not have been made. They should have been deemed against the public interest as a violation of freedom of the press. 

Financial regulation should be on guard about this merger. The FCC should also oppose it. At the very least, the FCC should not be talking about "DEI" (except to praise it) or corruptly interfering with news decisions. Carr is doing impeachment worthy stuff.

Better choices for FCC commissioner, please. Plus, there should not be two vacancies. The FCC didn't even have a quorum until the third commissioner was recently confirmed. Important positions should be filled in a consistent and timely manner. 

The whole process of filling vacancies, including delays in the confirmation process, is something we should address. That includes not having as many confirmations. Many minor positions should not require Senate approval. Others, like an ambassador to a small nation, might be constitutionally necessary. Nonetheless, it should be possible to confirm quickly. 

I appreciate that the one voice of sanity at the FCC, someone (of course) appointed by President Biden, is the voice of reason. Remember. 

Call out what Trump is doing. Find ways to address it. Provide another way. 

Open Primary in NYC (and DEI Again)

In 2023, Common Cause New York issued a report on New York’s “unaffiliated” voters, who represent more than a million voters in New York City and are now the second largest voting bloc citywide.

A local op-ed opposed putting an open primary on the ballot in New York City. It did not necessarily oppose the concept. Nonetheless, it argued that more study should be provided. [ETA: Never mind.]

The argument appears reasonable. We are having an atypical mayoral election this year with at least one major third-party candidate (Eric Adams). The unaffiliated voters weren't the only ones unable to take part in the primary. The Republicans did not have a contested mayoral primary.

Mamdani appeals to a plurality of voters. Republicans are a minority (only about five members of the city council are Republican). The result is that there is a middle group who wish for a third candidate. Adams and Cuomo, however, are dubious options for certain non-ideological reasons.  

I think an open (or "jungle") primary in an area that is strongly one-party makes sense. The alternative might not result in a fair representation of the will of the electorate. Curtis Sliwa is not a typical Republican. 

OTOH, if we are going to change how we vote, it should be done carefully. So, I find the op-ed convincing. 

Diversity ensures representation among qualified persons across race, national origin, sex, gender, sexual orientation, disability, age, socioeconomic status, military status, shared ancestry, parental status, persons who live in rural communities, and more, so that institutions reflect the communities they serve.

DEI came up on another blog. It is a favorite target, and some people conclusively say it failed. I have talked about this issue before. It still bothers me.

DEIA (Diversity, Equity, Inclusion, and Access) is fundamentally a good thing. It is not just about race (or sex). It has quite a few aspects that few will oppose across the board (e.g., disability access or religious accommodations).  

DEI (the "A" is often left off) is used as a buzzword. It is more political theater than an honest attempt to address the substance. 

Some aspects will be controversial and/or problematic. Others are fine. Others are good. 

I will die on that hill. Well, I will die on many hills. 

Order Watch

SCOTUS granted a few more cases in some interesting if not particularly hot button areas.

Alito, Kavanaugh, and Jackson didn't take part in two cases. Only Jackson (in a case Kavanaugh staid mute on) explained (previous judicial service). 

Jackson (with Sotomayor) wrote a dissent to a cert denial involving when a racial discrimination claim was still ripe. 

We will have one or more opinions on Thursday. 

Meanwhile, Emil Bove is so bad that Ed "Zillow" Whelan is concerned. Also, originalism taken seriously regarding 14A, sec. 3. 

Second Amendment

Thomas (with a written dissent), Alito, and Gorsuch would have taken a case where a Second Amendment claim involving AR-15s was denied (as it was in another circuit). Kavanaugh was sympathetic but wanted the issue to "percolate" more, noting multiple other pending cases.

The cynic might determine they didn't have a fifth vote and that is why Kavanaugh is waiting. Some might be "infuriated" at somebody (that guy is usually only being annoyed at Roberts and Barrett).

Kavanaugh cites the Heller "common use" rule and how many people now have the weapon. I question if the fact some weapon is own by a lot of people (at least in raw numbers) alone should be the test. 

Some argue that is living constitutionalism. Somewhat unfair if a 18th Century rule is applied. Such a rule will apply current conditions. The Internet wasn't around either. Whatever "free speech" meant, you have to decide if the Internet matches its characteristics. Today, not in 1985.

The courts below argue that applying traditional rules (history and tradition) to a modern gun allows the laws involved. The test is flexible. Roberts has not shown much concern about the laws being around. 

It probably turns on Barrett. Kavanaugh suggests she will get a shot either next term (the cases being taken now are for next term) or the one after. We will see.  

Memorial Day

Memorial Day originated as "Decoration Day," which involved decorating the graves of Civil War dead. This helps explain the timing. Flowers would be in bloom. 

John Alexander Logan, who fought in the Civil War, is the father of the holiday. His story is particularly notable when we remember his journey from racist (his father was once a slaveowner) to supporter of black suffrage.  

The 30th day of May, 1868, is designated for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village, and hamlet church-yard in the land. In this observance no form of ceremony is prescribed, but posts and comrades will in their own way arrange such fitting services and testimonials of respect as circumstances may permit.

President Lincoln, in his Gettysburg Address, uses the ancient method of mixing honoring the dead and teaching the living. It is for us to ensure that they did not die in vain. 

My sentiment has long been that the best way to honor those who died for our country is to promote peace. Let us work toward reducing the number of future dead people. 

Lincoln reminded us that we also should honor what they fought for. That is, when they fought for good things. We can remember German soldiers during WWII without honoring what they fought for. The same applies to Confederates. A total erasure of lines here is not quite ideal.  

The people who died were individuals with families and descendants. They are not just symbols to be honored or exploited. We should also remember them personally.  

I will also connect this a bit to Trump. His abuse of antiracism ("DEI") for his own ends cheapens those who fought and died to promote liberty and equality.  

Trump is overall a dishonor to their memory. Put aside his views that people who died for this country were suckers. He is now the commander-in-chief of the military. WTAF?

We celebrate holidays to honor things in today's world. So, even if we want to, we can not totally ignore Trump.

Overall, Memorial Day is not just the symbolic start of summer or a time for sales or days off. It honors the memory of people who gave their "last full measure" in defense of this country and its values. It is up to us the living to determine they did not die in vain.  

SCOTUS Watch: Special Mid-May Oral Argument

Jackson Speech 

Justice Jackson has been the only justice of the current court to provide transcripts (three) on the website's speech page. 

The latest was "Remarks for the Harry S. Truman Good Neighbor Award." She used the chance to talk about Truman's desegregation of the military and a grave wrong involving the blinding of a black military veteran. Trump is segregating the military (trans).

Busy Thursday 

Thursday involved an opinion announcement, bar admissions, an oral argument, and a conference. An order list will come on Monday. 

Roberts also said a few words in memory of Souter. We only got to hear the oral argument involving universal injunctions in the birthright citizenship lawsuits. Ah, selective open government.  

Fourth Amendment

The opinion (nine pages) was a unanimous decision by Kagan rejecting a "moment-of-threat rule" to determine reasonableness. Kavanaugh (six pages) for four justices (the conservatives other than Roberts and Gorsuch) wrote a concurring opinion to remind:

In analyzing the reasonableness of an officer’s conduct at a traffic stop, particularly traffic stops where the driver has suddenly pulled away, courts must appreciate the extraordinary dangers and risks facing police officers and the community at large.

The case was brought by the estate of a man who was killed by a police officer who pulled him over for unpaid tolls. When the man started to drive off, the officer jumped onto the doorsill of the car and shot the driver. (SCOTUSblog live blog summary.)

The short opinion used a totality of circumstances rule, not just focused on the moment of the violence, and sent it back to the lower courts to deal with the dispute once more.  

More Trump Stuff

The Supreme Court handed down an opinion late one Friday night to hold up some imminent Texan deportations involving the Alien Enemy Act. They handed down another unsigned order with Alito (with Thomas) dissenting on Friday. 

SCOTUS points out that the Trump administration claims it can't retrieve migrants once they've been sent to CECOT, adding: Well, if that's true, then migrants must receive especially robust due process protections before they're expelled to El Salvador. 

Steve Vladeck argues this ruling is pretty serious stuff. Check him out for some of the technical but important legal details. 

They did add: "The Government may remove the named plaintiffs or putative class members under other lawful authorities." I wouldn't trust them.

Kavanaugh concurred, logically favoring the Court to take a case to decide the substance. I would hope that would lead to a good result. The misuse of the AEA here is not quite as bad as the Administration's birthright citizenship argument, but it is up there.

Other News 

We separately dealt with the order that rejected a final appeal in a capital case. The Supreme Court also selected someone to defend a decision in a case where the government decides not to do so. 

Plessy v. Ferguson

A Today in Supreme Court History blog series provided fodder for someone to list daily cases* and eventually use it to publish a book. Mid-2024, I joined in with my personal comments. Sometimes, I go on a bit of a lecture. Constitutional law has long interested me. 

Today's post involved Plessy v. Ferguson oral argument. (The posts just state the anniversary and connect it to some lecture.) That is the infamous case where the justices in 1896 held 7-1 that legal segregation in railroad cars is constitutional. 

(The oral argument came less than a month before the opinion. They had many more cases back then.) 

Justice Souter, in his Harvard speech, argued:

As I’ve said elsewhere, the members of the Court in Plessy remembered the day when human slavery was the law in much of the land. To that generation, the formal equality of an identical railroad car meant progress. But the generation in power in 1954 looked at enforced separation without the revolting background of slavery to make it look unexceptional by contrast. As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see.

Justice Harlan did see in his dissent. We now deem his dissent correct. If only we also deemed his Civil Rights Cases similarly so.**

OTOH, Harlan did have topical blindspots. He argued in his dissent:

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.

He also suggests why he joined the dissenting opinion in the famous birthright citizenship case:

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.

[He did not say that as policy, the Chinese were deemed so different. He stated it as a simple fact.]

Also, his understanding of equal "civil rights" did not include integration of public schools [he dissented when a law blocked a private college from integrating] or miscegation laws.

Harlan understood the general principles of the 13A, 14A, and republican form of governments required striking down the railroad regulation involved. He still had a ways to go.

On that, it took the development of society and the law, which is a significant aspect of enforcing the Constitution.

Harlan and the majority had some excuse for being products of their times. Given we as a nation are repeatedly unable to learn the lessons of history [some lame gotcha won't do it], we should remain modest.

Justice Souter can have the final word:

If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.

===

* This leaves me even more time to pontificate. 

Gibson v. Mississippi (1896) was a majority opinion written by Justice Harlan. A big "but" here:

We recognize the possession of all these rights by the defendant; but upon a careful consideration of all the points of which we can take cognizance, and which have been so forcibly presented by his counsel, who are of his race, and, giving him the full benefit of the salutary principles heretofore announced by this court in the cases cited in his behalf, we cannot find, from the record before us, that his rights, secured by the supreme law of the land, were violated by the trial court or disregarded by the highest court of Mississippi.

Bolling v. Sharpe (D.C. segregated schools, so no Equal Protection Clause) used this case as a precedent for an  equal protection component of the Due Process Clause:

As long ago as 1896, this Court declared the principle "that the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government, or by the states, against any citizen because of his race.

I love those sorts of footnotes. 

** The Supreme Court later upheld usage of the interstate commerce power (left open in the earlier case) to stop discrimination in public accommodations. 

To refute a comment, that is a telling label. It is not mere "private" discrimination. Harlan was correct. The opinion was cited in cases like U.S. v. Morrison, too, another case that could have gone the other way on various grounds. 

Congress in the 1870s enforced the 14th Amendment to regulate discrimination in public accommodations. Congress has more power to pass reasonable enforcement regulations regarding the Reconstruction Amendments. 

The Supreme Court, guided by the spirit of the 19th Century, continues to provide a too limited view of its power. They might have been correct in specific cases  (Ginsburg might very well have been right to go along in Boerne v. Flores), but overall too restrictive. 

Loving v. VA & Originalism

A "This Day in Supreme Court History" post raised another debate about how Loving v. Virginia shows that originalism doesn't make sense. How could an opinion holding miscegnation laws unconstitutional stand up to original understanding? "It obviously doesn't! Slam! Originalists are so stupid!!"

(I put aside that Mildred Loving, at the end of her life, argued the principle of her case applied to same sex marriage. That is another use of her case!)

Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification.

Originalism is a popular doctrine. It has rhetorical force. Liberals repeatedly argue a "true" understanding of history would lead to progressive results. Madison, for instance, is cited for purposes of separation of church and state. 

There are also a variety of types of originalism, which, like the sects of Christianity, share various tenets while leading people into different avenues are significant points. One version:

The best indicia of original public meaning comes from dictionaries and grammar books that are widely in use at the time a law is passed.  Newspaper editorials might also help recover the objective original public meaning of a newly enacted legal text. Senators and representatives involved in the drafting process, in contrast, will usually be unknown to the general public when an Act is passed and will therefore not be part of the original public meaning of the Act. 

This account argues that even the Federalist Papers might be "reassuring, mellifluous words," but "this does not mean the sponsors are being honest nor does the public necessarily assume that the sponsors are being honest."

The linked article argues that a certain form of originalism very well can be used to defend Loving v. Virginia. See also the article discussed here. 

The second article notes that many originalists disagree. The review at the link (from someone sympathetic to originalism) also argues that "far from clear that ordinary citizens" of the time would accept the argument.

Jack Balkin, a liberal constitutional professor who wrote about a liberal form of originalism, pushed back on the article:

But the fact that some anti-racist Republicans believed that the best construction of the Civil Rights Acts and the Fourteenth Amendment gave interracial couples a right to marry does not show that most, much less all, Republicans thought that this was the legal meaning of the Civil Rights Acts or the Fourteenth Amendment. It does not show that most of the Congressmen and Senators who voted for these Acts or the Fourteenth Amendment thought so. And it certainly does not show that most of the state legislators who were necessary to adopt the Fourteenth Amendment thought so. The claim that, in 1868, most of the people necessary for the passage and the adoption of the Fourteenth Amendment believed that the civil right to marry included the legal right to racial intermarriage is simply not supported by history.

(He also flags that the article supports Pace v. Alabama, a 1880 ruling that upholds a law that provides additional punishment for interraical fornication. Marriage is different! 

That is strange since the principle of the law -- see also, R.A.V. v. St. Paul -- should still be wrong.)  

A person in the blog post comments can allude to (addressed here) Reconstruction state court rulings that held that interracial marriage is protected by equal protection. The courts are all in reconstructed Southern states, so they would logically be Radical Republicans. Not proof of a median position. 

Meanwhile, an Indiana ruling went the other way, arguing that marriages were not the normal contracts involved in the Civil Rights Act of 1866 and so forth. Jack Balkin expands on that -- social rights were different. A view that changed over time. 

Once courts found that interracial marriage could be banned, the path was open to broadly uphold segregation laws. School segregation was necessary, allegedly, since once social race mixing started, it was just the path to perdition. Brown v. Board was an essential stepping stone to Loving. The Court did go carefully, not deciding the matter right away.

Common law constitutionalism, an approach that I think is the best one, accepts the development of the law over time. This applies to the development of the protection of interracial marriage. And, same sex marriage too, using broader principles of equality. The test, after all, is universal.

Loving possibly fitting within the broad contours of the Fourteenth Amendment does not mean that it seals the deal. Many things can meet that test. It is particularly silly to govern how we apply the Constitution today using "dictionaries and grammar books" from back in the day.  

A fair reading of common understanding probably would reasonably hold that the median position was originally that interracial marriage was not protected.  Things like removing a ban on interracial marriage in D.C. don't clinch the deal, especially when it is a war measure by a Congress stripped of most of its Southern members. And that was a law, not a constitutional decision. 

Loving itself reasonably noted:

As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources “cast some light” they are not sufficient to resolve the problem; “[a]t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among 'all persons born or naturalized in the United States.’ Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect.” 

A question left open by the evidence, or which can reasonably be applied, is of some interest. The Constitution should be reasonably applied, which involves a broad but not unlimited range of options. 

Joint decisions, including by multimember courts, will also result in compromises that seek to satisfy people with various ideological approaches. Finally, a full look at the history is informative. 

Those who strongly argue that it is silly to think originalism can support interracial marriage are somewhat overdoing it. The evidence is complicated. The road to support of interracial marriage bans and other bad stuff also does not merely turn one bad opinion (Slaughterhouse Cases). The development of the law over a hundred years was complex. 

And, then we are left with competing long articles on the details. The final answer remains elsewhere. 

SCOTUS Watch

Order List

The eleven-page order list suggested something was afoot. It was a mostly ho-hum Order List with Sotomayor (with Jackson) dissenting (with opinion) from cert denial in a case involving habeas: 

This case raises an entrenched Circuit split over an important question of statutory interpretation: Can a certificate of appealability be denied notwithstanding a circuit judge’s vote to grant it?

Alito and Kavanaugh recused without comment because, unlike the liberals, conservatives won't tell us why. I continue to find this wrong. 

Today In SCOTUS History

A blog provides a daily event in SCOTUS history, which also provides others to note opinions handed down that day, and a Japanese student provides Japanese cases. It also allows others to comment. 

A recent entry in the daily case lists was HUD v. Rucker, which I found distasteful when it came out. It was bothersome that no one dissented. 

Breyer did not take part since his brother handed down the district court opinion. The lower courts held for the challengers. 

My pre-blog discussion is found here. Some of the links are dead, including the Michael Dorf essay. 

Opinions 

April brought some more opinions. 

Alito wrote an opinion for a unanimous court (when you lose Alito, you are in trouble) overturning a Fifth Circuit ruling blocking an e-cigs regulation. Sotomayor wrote a brief concurrence arguing the case was even easier than he said. 

Barrett wrote a 5-4 opinion involving a company called "Medical Marijuana Inc." The issue turns on a medication that supposedly didn't have THC, but led to repeat tests that showed it did. This ultimately led to the person being fired, which led to this litigation.

Holding: "Under civil RICO, §1964(c), a plaintiff may seek treble damages for business or property loss even if the loss resulted from a personal injury."

Barrett's opinion underlined its limited reach and how the challenger still has a lot to prove. Jackson added a paragraph to further her "When Congress speaks, courts should listen" mantra. 

Thomas (alone, wanting to punt) and Kavanaugh (on the merits via an opinion longer than the majority) (with Roberts and Alito) dissented. Roberts rarely dissents, so that's notable. 

Alito's opinion was over forty pages. There were about sixty pages of opinions here. The justices split 5-3 on what Congress meant in the marijuana case. 

Solicitor General 

Sauer is a former federal prosecutor and Missouri solicitor general who successfully argued at the Supreme Court last year on behalf of Donald Trump in his bid for immunity from criminal prosecution related to the Jan. 6, 2021, riot at the US Capitol.

John Sauer, another Trump defense attorney, was confirmed as solicitor general by a party-line vote. He defended Trump in the well-named Trump v. U.S., and now the inmates have taken over the asylum. 

Harmeet Dhillon, an election denier, was also confirmed to lead the DOJ Civil Division. She also opposed masks and supported anti-trans policies. 

Trump's SCOTUS Does Him a Solid

[This opinion dropped sometime late Friday afternoon. We didn't have one of those surprises for a little while. We might want to expect some more.]

The justices are looking on as much litigation is going on in the lower courts. Sotomayor has spoken out generally about the rule of law. Roberts said you shouldn't attack judges. Let things play out.

A 5-4 majority (Roberts joined the liberals) held up a restraining order regarding education-related grants held up because of DEI. Which again is FINE.

The short per curiam was a mixture of procedural with limited hints that the merits were off. The main focus was the idea that the government wouldn't get the funds back, and the challengers didn't need them now. So, it's a limited Trump win. Okay.  

Steve Vladeck is a reasonable law professor and says, "wait until you get really upset, we don't know how bad this is so far."  Again, okay. If it was so trivial, why did Roberts dissent (without comment)?  

Kagan and Jackson followed the three pages of the majority with nineteen pages of dissents. Kagan had a short dissent arguing (1) it was a misuse of the emergency [shadow] docket, (2) there very well is evidence that the funds are necessary now.

Jackson (with Sotomayor) goes into more passionate detail. The majority is "beyond puzzling" and "baffling." There are "numerous" grounds not to do this. She doesn't think the "we won't get the funds back" concern is that credible. And so on. 

Coming Up

After the Order List on Monday, the next scheduled event is ten days later, before the holiday weekend. After the holiday, there are the final weeks of oral arguments. We might also see other orders, including one or more regarding April executions. 

ETA: The Order List had two criminal justice grants but was otherwise no drama. Alito recused, like the conservatives do, without saying why.