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 Sometimes, outdated bad stuff helps conservatives.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.

Happy Thanksgiving

Friends had some very good Thanksgiving episodes, including one with Christiana Applegate. The friends were a family. The first season episode emphasized that -- they came together because they could not have dinner with their own families (Phoebe's grandmother celebrated another day).

Here is a history of Thanksgiving I wrote for another website. Harvest celebrations have ancient roots. The French and Spanish celebrated "thanksgiving" with Native Americans. Our modern Thanksgiving holiday was established in the 19th Century. 

Presidential Thanksgiving proclamations also began early. Like Trump's, they had a religious flavor, giving thanks to God. This led President Jefferson to reject the practice, particularly a congressional instruction to provide one. He thought that was a violation of the First and Tenth Amendments.

Presidential proclamations are also cited to justify other governmental endorsements of religion. Jefferson's principled stance is appropriate. At least, in today's world, any proclamation should be comprehensive. 

Justice Blackmun noted some Thanksgiving proclamations were blatantly sectarian. People can complain that some go too far regarding "Merry Christmas," which is a fake issue anyway. But recognizing the nation's diversity is appropriate. 

Personal statements by governmental officials are also not the same thing as showy endorsement. A large cross or Ten Commandments monument is not akin to some words nearly no one reads. 

Thanksgiving, as a basic concept, is fine. It has some baggage, including regarding Native Americans. Food can also be an issue, especially for vegans and vegetarians. There are plenty are options for an animal-friendly meal. Not all involve Tofurky.

Our troubling times also might lead people to be grumpy about giving thanks. For some people, holidays are especially stressful times. We can respect that. We should try to help those who need help. That includes those without much of a family.

At the end of the day, most of us have something to be thankful for. Giving thanks doesn't handwave all the problems. So, pessimists can be satisfied too.

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. 

"Is C-Span Bad for Democracy?" No

His hot takes on another blog were a rare opportunity for two sides in the comments to agree that he was wrong. I know the drill about "someone is wrong on the Internet," but this sort of thing is referenced now and then. So, let's cover it. 

GM sometimes has some interesting comments. Other times, including supporting 14A, sec. 3 disqualification (that had NO realistic chance of going anywhere) over impeachment, he is off base. 

He is here regarding televising things. 

Does he think the Watergate hearings being televised was problematic, too? Television has long been denounced (back to the "wasteland" days). It is a mixed bag. 

Does television lead to "verbal slugfests" in committee hearings? Yes. There is a chicken/egg quality here. Person-based politics is generally the norm today for a variety of reasons. 

Most of them, however, get quite limited coverage. Some hearings are available at most online; the three C-SPAN channels only provide so much. 

The limits of the information collection value of hearings have often been cited. They are cited as "kabuki theater." There is some exaggeration to such complaints. Plus, the critics are rarely likely to watch many of these hearings. 

But television doesn't prevent alternatives, as seen by old-time television hearings back in the day, when the methods used were different than today. For instance, television doesn't prohibit the usage of counsel to be in charge of questioning (or use that much more). 

How much more "productive and informative" would daily White House briefings be if they were not televised? The usual suspects would still find ways to keep track, including quoting key bits. 

White House press briefings were established in the first place partially to game the system in support of the White House. It wasn't just for a neutral respect of information release. 

Meanwhile, the public would not have an easy way to access them. Either way, like the Internet, video is here. We need to use them in the best way possible. 

Put another way, has greater transparency improved Congress’s work? I don’t think so. Nobody thinks that Congress is better now than it was in, say, 1980. 

Congress not being better now can be explained in various ways. C-SPAN is fairly far down there as a reason. C-SPAN also isn't just about congressional coverage. It has various other benefits that could help balance the books, even if it is "bad for democracy" in some respects regarding televising governmental proceedings.

In that sense, I support the Supreme Court’s exclusion of cameras from argument. (Personally, I don’t like the live streaming of arguments, but it’s not terrible.)

Lots of courts, here and abroad, provide televised coverage. How television coverage there would change things for the worse is patently unclear. 

The "playing to the camera" stuff present in Congress also does not have a clear overlap in the courts. Some of that was already present anyhow.

(Supreme Court oral arguments used to be more of a public event, in the early 19th Century, than they are today.)

The streaming of oral arguments being bad warrants more detail. A "hot bench" was present for years, with Scalia basically being a pioneer. Livestreaming has not changed the equation much at all there. 

Meanwhile, it gives a chance for legal analysts to comment on the proceedings. This provides the public with more information. How is this bad? 

The lack of televised hearings denies the public (and legal minds in particular) a chance to see the Supreme Court at work. This helps to provide an artificial view of the Court. 

The press is now a gatekeeper, and it only provides a limited view of things. For instance, there was a non-argument public proceeding on Friday. 

What happened? Probably swearing in people. But where has the press noted this? Thus, the Court operates in the shadows. Does GM support that, too?

Fire burns. Sometimes, it can burn your fingers. The aim here should be to improve televised coverage, not provide quixotic appeals to less transparency. 

ETA: This follow-up is also unconvincing.

19th-century legislators gave speeches aimed at their constituents. The empty chamber concept is not novel.

Some justices will grandstand. Doesn't change that televised hearings inform the public. Some bitter will come with the sweet. What else is new?

Unbearable

Unbearable: Five Women and the Perils of Pregnancy in America by Irin Carmon is a well-written book that underlines the importance of reproductive justice. It is passionate, informative, angry, hopeful, and empathetic. It is also about some men. 

Carmon earlier co-wrote a book about Justice Ruth Bader Ginsburg. As a mother of young children, she lived it as well. 

Reproductive justice is a united whole, involving good, respectful medical care and resources before and after having a child, miscarriage, or abortion. Abortion rights were fit into a privacy frame in Roe v. Wade because that was the logical approach at the time. It was framed as a private act between a doctor and patient, which was open to reasonable regulation. 

Later, equality was mixed in more, as gender equality precedents developed. Reproductive justice was always mixed in. It became more prominent later on. 

Case law underlines the complexities. We have birth control cases. Cases involving pregnant teachers forced to leave work mid-pregnancy. Cases about breastfeeding. And much more. 

(The link at the top is Melissa Murray's interview with the author. She wrote a personal review of the breastfeeding-related book linked above, too.) 

One tragedy, in my eyes, is that not enough Supreme Court cases connected all of this into a united whole. Abortion cases were about applying a ready-made doctrine. They often involved lots of regulations at once. Individual stories and how they fit into a united whole of constitutional liberty lost out. 

The book concerns five women, including someone trying to get pregnant (also a lawyer), a doctor, and three women's experiences before and after being pregnant. They live in New York and Alabama.

The author was about to give birth herself when Dobbs was handed down. The book also has a spoiler in the table of contents. I awaited the shoe to drop.

SCOTUS Watch: Order List

Monday's Order List (no more oral arguments until December) had a few interesting tidbits.

In the most common types of habeas corpus proceedings in the United States federal courts, a certificate of appealability is a legal document that must be issued before a petitioner may appeal from a denial of the writ. The certificate may only be issued when the petitioner has made a "substantial showing of the denial of a constitutional right".

There were the usual housekeeping orders, which made some go "hmm." For instance, only those with knowledge of some inside baseball know what a "certificate of appealability" entails. Where is that Orders FAQ page?

The justices granted one case involving asylum seekers. The SCOTUSblog summary references "aliens," though the lower court opinion uses the more and more standard "noncitizens." 

I would have granted certiorari to terminate the longstanding and unlawful prison-building order at the center of this case. In 2019, the District Court ordered New Orleans to construct a new facility for inmates with mental health needs. 

Alito (with Thomas) had a short dissent from denial regarding a case; the federal government had to be pushed to provide a response to the challenge. Gorsuch would have granted, though he did not join the dissent. It turns on procedural matters.

The facts harken back (going by the briefing) to at least 2013. The new facility was only two-thirds complete as of July 2025. The case is out of the Fifth Circuit, and the usual conservative suspects (including Judge Ho) dissented below.  

The Trump Administration, however, did not deem it certworthy. A tad bit telling as compared to Justice Alito arguing it is compelled by the Prison Litigation Reform Act of 1995 (limiting lawsuits) and so on.

==

More about that case involving a major human rights judgment against Ferdinand Marcos, where Sotomayor on Friday rejected a stay request. 

Steven Vladeck, in his Substack today, also suggested the request for a stay could have at least partially been raised to put the government on the record (see Sotomayor's final order).  

Upcoming

There is a non-argument session scheduled on Friday. These are usually used to swear people to the Supreme Court Bar. Vladeck notes there is a small chance it will be used to dispose of an easy case.

An execution is also scheduled on Thursday. 

Some miscellaneous orders might drop. The next scheduled Order Day is next Monday. That closes the official events scheduled for November. 

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.]

SCOTUS Order List

There are three basic things about today's Order List.

Kim Davis: Denied

Kim Davis's case was rejected without comment, even though some attention was given to it as if there was a real chance it would be used to overturn same sex marriage. Lots of people, including Mark Joseph Stern (gay, married, strongly anti-SCOTUS), were like "duh." See also, Chris Geidner (gay). 

As Steven Vladeck previously noted (linked here):

Third, there was a surge in media discussion about the pending cert. petition by Kim Davis, and what it means for the future of the Supreme Court’s 2015 ruling recognizing constitutional protection for same-sex marriage in Obergefell v. Hodges. (The surge seems to have been caused by the fact that the Court ordered the respondents to file a response to Davis’s cert. petition after they had waived their right to file such a brief. But such a move requires a request from only a single justice, and is in no way predictive of a grant of certiorari.)

This was one of those cases where a juicy-sounding case was on the docket, and too much attention was given. For instance, the Supreme Court doesn't grant a case, and a report suggests they decided the merits of the issue.

I am not going to disdain the average person being concerned here. The stakes are high, and people have a thin understanding of things. People aren't experts here. It's a learning opportunity. Anyway, hopefully, we are done with Kim Davis, who has been around for years. I have my doubts. 

Election Case Taken 

The Supreme Court granted review in a case for which the Fifth Circuit opinion was deemed "bonkers." 

The general idea appears to be that this was a "too much for the conservatives, at least two to three of them" Fifth Circuit ruling.  

Alito, Gorsuch, and Jackson did not take part in a case each. Jackson alone explained why. She and Kagan have consistently done that. Sotomayor, less so. Conservatives, never. Yes, this still bothers me. 

Gorsuch/Native Americans

Kagama helped usher into our case law the theory that the federal government enjoys “plenary power” over the internal affairs of Native American Tribes. It is a theory that should make this Court blush. Not only does that notion lack any foundation in the Constitution; its roots lie instead only in archaic prejudices. This Court is responsible for Kagama, and this Court holds the power to correct it. We should not shirk from the task. 

Gorsuch used a non-grant to dissent and provide some broad woke comments about our historical mistreatment of Native Americans and the Supreme Court allowing Congress to have plenary power over their affairs. Thomas joined him.

Thomas has gone his own way regarding Native American issues, including the proper rules for criminal justice. He has not been as woke on the merits as Gorsuch, which threw a few people.

Gorsuch has a point, though it's unlikely the Supreme Court is going to shift gears after over a hundred years. They won't frame things quite as crudely as some opinions back then. But changing over a hundred years of congressional discretion here?

I think not. Gorsuch's Native American stuff sometimes appears a tad too precious to me. Still, it is worthwhile to press the envelope given how much baggage there has been here. 

==

Justice Jackson also dropped another order regarding the very accelerated SNAP litigation. To hint at the speed here, an appellate opinion was dropped late yesterday (Sunday). Legislatively, also in flux.

A Few More NYC Election Tidbits (SCOTUS Watch)

This week's SCOTUS summary is found here.

We had a significant increase in turnout, with as many voters as there were since 1969. The increase is relative, with only around 40% taking part. The Bronx had a paltry 28%. My city council district changed hands. What small fraction decided the result? 

Voting is a civic obligation. Many people think it is pointless to vote, including if they don't like the candidates. Republicans often felt they were wasting their vote, helping someone they strongly opposed in the process.  Others also did not like Mamdani. 

It is still important for people to vote. There were also other races and six ballot measures. The two links provide some voting analysis. For instance, the black vote significantly shifted from Cuomo in the primary to Mamdani in the general. Recall Mayor Eric Adams (black) was not in the primary. 

One analysis argues that Mamdani's leading reform proposals are cheap as a segment of the overall budget. The analysis provides some interesting information, including that free buses seem less extreme when 48% already do not pay for bus fares.

(That seems high, but there was a study comparing riders to fares obtained. I don't take buses too much, but have seen evidence of the overall practice.) 

Meanwhile, NY SNAP funding will continue even in the face of the government shutdown and Trump shenanigans. I expected state funding would help.

[ETA: After last night's SCOTUS order, the SNAP benefits are more up in the air. The linked article was updated since I first posted this.]

==

This entry has links to three online newspapers covering NYC and NY state news, as well as one to an NYT article. The (free) NY-specific online papers have provided helpful local coverage.  

Paywalls are annoying but fair since media providers need to be paid. Archived content can help avoid it. Also, you can fiddle around with the browser, including cookie settings, to avoid some others. 

Trump Odds and Ends

The Trump Justice Department regularly lied to and didn't follow the orders of courts. 

(This should matter, right?) 

Prince (for now) Andrew is having his royal title (basically symbolic) stripped because of his involvement with Jeffrey Epstein. 

OTOH, Mike Johnson is keeping the House of Representatives in session and not swearing in a new Democratic representative, partially to prevent a measure from releasing the Epstein papers. 

Even in the friendliest polls, Cuomo has the smallest enthusiastic base of any candidate. Curtis Sliwa has more people excited to vote for him. Cuomo’s only shot is patching together enough voters who fear or despise his opponent enough to accept him by default. He has nothing to offer for the future, just a cynical warning that we cannot trust it to someone else.

But that same need to control has brought him here: stuck in a race he’s unlikely to win, for a job he never really wanted. And that’s because Cuomo can see everyone’s faults but his own. He doesn’t show humility. He rarely apologizes. And if you never admit mistakes, you never learn from them. You never evolve.

Okay. Let's move on from this ugliness.

The Supreme Court has found another possible "this goes too far" bit regarding Trump sending troops into our cities. At least, eventually. 

Don't worry. As a whole, the Supreme Court (6-3 much of the time) has supported Trump while expanding its power, including against the lower courts. 

Time for court reform.

ETA: Some SCOTUS addendum stuff.

A media advisory dropped regarding seating for a Trump firing case, underscoring the expectation it will be a well-watched oral argument. Press seating will be by assignment only. All cases aren't equal.

It could take years to have a bound copy of a term's opinions. Now, they start providing bound pages during the term. The final opinions for the 2024 Term are now available with the page numbers. 

Oral arguments begin again on Monday. 

Alabama Executes Anthony Todd Boyd

According to court documents, in July 1993, Boyd and with three other men kidnapped Huguley because Huguley owed them $200 for cocaine he bought from them and never paid for.

Yes, there was burning. We are talking about an extra level of cruelty. One person testified and was released in 2009. Another received life without parole. Two were sentenced to death. 

Thirty-plus years is too long (Breyer, dissenting). 

His lawyers raise various claims, including arguing that the sentence is disproportionate (there is not enough evidence to justify the death penalty) and even an innocence claim. The jury decided 10-2 for death. 

[A few more links that show there is some concern that the prosecution was not fair.]

Boyd was executed via nitrogen gas. Another person was executed for involvement in a horrible crime via a very flawed process. Particularly, a lag time of decades that taints the whole process. 

(After not saying anything regularly, we have another dissent this month, joined by all the liberals. 

Sotomayor argues that nitrogen gas is cruel and unusual. Boyd should have been executed by firing squad. Some people, including Prof. Lain, argue the firing squad is the best method, relatively speaking.) 

If he were fully guilty, thirty years in prison was quite a serious penalty. The death penalty is gratuitous. 

ETA: The Supreme Court, without comment, rejected another final appeal. Another form of this piece, focusing on the firing squad issue, can be found here. Boyd's execution fits Sotomayor's description. 

A separate order announced times for oral argument in the upcoming Trump tariffs case. 

Order List + Another Order

The Supreme Court disposes of lots of cases without comment. A few people want them to explain everything. That would be a tad silly. 

They dispose of thousands of things, including not granting patently meritless claims from (to use a legal term) kooks. My rule is that they should do it for executions and when they overturn the court below.

Some of the orders do have interesting details. Others are more trivia answers. That can be interesting too.

Friday's Order

They disposed of, without comment, an "order in pending case" on Friday. It was "application for a writ of injunction presented to Justice Kagan and by her referred to the Court is denied." 

The case concerned a desire to have a vaccine exemption for a student because the vaccine was somehow a product of an abortion. The Supreme Court didn't say why, as noted, but these requests are rarely provided. The merits are not the issue here.

Still, of course, the subject matter catches one's eye. It turns out that decades ago that fetal tissue was used to start a cell line that was involved in the production of the vaccine. It is not clear why the abortion occurred.

It's not like someone performed an abortion for scientific experiments. Once the abortion occurs, it is unclear why a fetal tissue sample can not be used. And, as noted here from a Catholic perspective:

As a practicing Catholic, I think the moral balance of indirectly benefitting from an abortion that occurred 50 years ago in order to take a vaccine that will prevent further death in the community is a no-brainer – especially considering that so many of the over 620,000 American deaths have occurred in the most vulnerable and marginalized in our society. We need to focus on saving lives right now. We need to care for our neighbors. 

The level of indirect involvement that is cited to demand an exemption, repeatedly to harm third parties (e.g., deny insurance benefits or make it harder to obtain them), is not only infuriating, it is immoral. And, bad as a matter of free exercise law. 

Order List 

The Monday Order List is the last scheduled thing on the schedule until November 3. (Happy Birthday, Bobby, who won't read this.)  Two executions are scheduled before then, so we shall see about that.

The Order List included various housekeeping measures. Notably, Alito (cert denial) and Gorsuch (habeas, the claimant cited for abusing the privilege of free cases) didn't participate in two of the denials. 

The Supreme Court has added three new cases -- involving arbitration, gun rights, and bankruptcy. All three are relists. 

The Second Amendment case involves prosecution of drug users (controlled substances). A sympathetic claim though (1) what drugs (2) how strong is the constitutional claim? The claim is notable too because Hunter Biden's crimes involved this matter. 

Another notable thing: the justices decided to wait to determine if Little v. Hecox is moot. The trans student in the case asked the Court to do so. They will wait until after oral argument (this is fairly normal). 

Funding

The Supreme Court announced that its funding has run out, given the current Republican government shutdown. Yet again, the public information office released a statement but did not post it on the website. 

They have a press release page for that, you idiots. There is a notice on the website:

Due to a lapse of appropriations, the Supreme Court Building will be closed to the public until further notice. The Building will remain open for official business.

So, sorry SCOTUS haters, this won't stop them from skullduggery. The public is just denied entry. 

On that subject, here's the December calendar. 

The Death of Originalism?

Professor Eric Segall continues to battle originalism. It's part of his concern about abuse of judicial power. He argues the Supreme Court is "not a court." 

I find that silly. It's a certain type of court. But fine. 

Originalism is a false hope. It does not truly advance judicial restraint, which is at times deemed its biggest value. His new article (first link) notably shows how conservatives were no longer restrained once they truly took control of the Supreme Court.

Segall also enthusiastically shows how conservative justices do not show much concern about applying original understanding. He finds some definition of what that means. Originalism has various shades.

He loves to quote a strict test of judicial restraint applied by Alexander Hamilton. Fine. I just skimmed the grand Learned Hand biography, and by the end, he was even more restrained. 

But we don't live in the 1790s. Things changed. Courts have more power. The people overall agree they should. If you want more legislative supremacy, you are going to have to change THEM some. And, I don't think Segall has the chops to try to try. 

Originalism critics repeatedly appear to want us to do it the right way. His article focuses on how originalism died. That is, one more restrictive form of it (never truly implemented when it mattered) died. 

The "New Originalism" argues that judges have considerable flexibility. They should apply basically the general values of the Framers. 

Which they debate about, often in long articles about such and such provision. While leaving stuff out or getting stuff wrong. Thus, equal protection can include sexual equality. Or free speech covers much more. 

This is a more reasonable way. I also think (FWIW) it is the way the Framers figured it would work. 

They didn't think that fifty or more years in the future would understand specific constitutional concepts in the exact same way as they would. Experience and knowledge develop. The Framers sometimes realized they were wrong about things within a few years. 

Yes, this results in more flexibility. If you want judicial restraint, "what the Founders said" is of limited value. So, stop quoting Alexander Hamilton on the point so much. It encourages people to think originalism is okay. If you do it right.

The judges who apply the Constitution in this way are doing "law," though some originalists sanctimoniously think their way is the only way to do that. State court judges who are not originalists are still judges. 

The usual suspects, for instance, sneer when justices support the constitutional protection of same sex marriage. The Framers would never have supported it. Blah blah blah. They didn't have the knowledge, experience, and law that we have on the subject.

James Madison opposed the constitutionally of the Bank of the United States when he was in Congress. He acknowledged its constitutionality, given precedent, when he was president. 

Judges need to at least cosplay originalism, given the current control of the Supreme Court. But it is bullshit. It doesn't restrain more than the alternatives. 

As applied, it regularly is living constitutionalism by another name. It is not compelled by the document. The Founders didn't demand it. It's undemocratic and ignores all that we learned and experienced over the years. Not completely, of course, since judges are products of their time. But it somewhat tries to. 

Originalism will not restrain. A strict application of the past will provide judges with much power to strike down democratic actions. A stricter test will help somewhat, but judges will regularly assure themselves that the evidence is crystal clear. 

Judicial restraint has its place. Trying to ensure the current day governmental acts would satisfy our ancestors is a cockamamie way to go about it.  

Restraint will at times be a tough mistress. We are cheering on (with reason) some lower court judges restraining Trump. What would Segall's test do to many of those rulings? How about many of the great rulings of the past, some of which were 5-4?

It's a serious conversation to have, especially as we think long-term about dealing with our current Supreme Court. It has to be done without reliance on b.s. B.S., unfortunately, is quite alive. 

[A somewhat expanded version of this entry is here.]

Two More Executions

Crawford, now 59, was convicted and sentenced to death in 1994 for the 1993 kidnapping, rape and murder of Kristy Ray from her Tippah County home in the Chalybeate community. Ray was a 20-year-old student at Northeast Mississippi Community College.

Both executions covered here involved thirty-year-old murders. We yet again have the "too long" problem, which was covered already earlier in the week.

His lawyers unsuccessfully tried the insanity defense. The problem is that their client did not want them to concede guilt. They did anyway as part of a defensive strategy. Sotomayor, for the liberals, in a rare dissent to a last-minute appeal, flagged the problem. She argued the appeal was not procedurally blocked. 

Madiba Dennie‬ (Balls and Strikes blog) noted on Bluesky that she thinks dissents are important:

I understand the kinda nihilist dunks on them as meaningless, but I've seen too many dissents become majority opinions to think they don't have value--as doctrinal roadmaps, as mobilizing tools, as records of the truth when the majority lies, etc.

The liberals should say more in last-minute appeals, if only to include statements quickly addressing the issues. Some reasonably serious claims are involved. It involves life and death issues. It warrants an explanation.  If the claim is dubious, say that too.

Djerf, 55, had pleaded guilty to four counts of murder in the killings of Albert Luna Sr., his wife Patricia and their 18-year-old daughter Rochelle and 5-year-old son Damien on Sept. 14, 1993. A judge later sentenced Djerf to death.

Richard Djerf recently admitted guilt. More details:

Prosecutors say Djerf blamed another Luna family member, Albert Luna Jr., for an earlier theft of home electronic items at his apartment, became obsessed with revenge and months later entered the home under a ruse in which he claimed to be delivering flowers.

Authorities say Djerf sexually assaulted Rochelle and slashed her throat; beat Albert Luna Sr. with an aluminum baseball bat before stabbing and shooting him; and tied Patricia Luna and Damien to kitchen chairs before fatally shooting them.

I don't think a jury is bloodthirtsy to decide this crime warrants the death penalty. The problem is that a jury did not do so. Ring v. Arizona suggests it is constitutionally obligatory (maybe not in every instance). And, this was an Arizona case also. 

The problem is that the rule was determined (5-4) not to be retroactive. It does help to explain why the case lingered for thirty years. Not completely. That issue was addressed over fifteen years ago.

One anti-death penalty group cites evidence of brain damage. My bottom line is that the system is broken, which means even cases like this should not result in the death penalty. Especially if it takes 30 years. 

We have two horrible crimes, but both executions are tainted. The whole system is broken. No capital punishment is the best policy. Instead, we will have more executions in October. 

Order List + Execution Week Begins

SCOTUS

The Supreme Court added a case involving plea bargains to the docket on Friday. 

Saturday brought an article about lower court judges being upset about the shadow docket. 

Today was Order Day (given yesterday was a holiday). Kavanaugh, Alito, and Gorsuch recused themselves without stating why.  Sotomayor, for the liberals, flagged a troubling jury/capital case. 

Gorsuch said he is open to incorporating the Seventh Amendment. If so, go all the way, since the grand jury is also quite important, and the Third Amendment also has its importance. 

Alito (for Thomas and Gorsuch) also added a short statement noting his concern that schools do not notify parents about children transitioning. Such things, unlike abortion or birth control (Thomas), are a fundamental right. 

ETA: Both Sotomayor and Alito used the word "tragic."  We were able to hear the full opening material (e.g., bar admissions) on the first day of the term. Not so this time, apparently, since the C-SPAN audio starts with the first oral argument, with a tiny bit of Roberts swearing in lawyers. 

I also skimmed (it's too long for me to read; it might have been back in the day) the famous Learned Hand biography. There's a lot of interesting content, although some chapters are tedious. A nice anti-originalist quote:

[I]f our Constitution embalms inflexibly the habits of 1789 there may be something in the point. But it does not; its grants of power to Congress comprise, not only what was then known, but what the ingenuity of men should devise thereafter. Of course, the new subject-matter must have some relation to the grant;  but we interpret it by the general practices of civilized peoples in similar fields, for it is not a strait-jacket, but a charter for a living people.

Reiss v. National Quotation Bureau, 276 F. 717, 719 (S.D.N.Y. 1921).

His Bill of Rights lectures, however, simply go too far. Judicial review is part of our constitutional system. Yes, you can be quite wary about applying it. But it is a thing. His career as a whole wasn't such "judicial restraint on steroids" as all that.  

Two Executions 

It also marked the beginning of a busy week of executions. 

Texas, which has its moments, stopped (for now) an execution. It involved discredited shaken baby evidence. But we still will have a busy week.

Lance C. Shockley was sentenced to death for the murder of a Missouri police officer. That was twenty years ago, which (yet again) gives me a chance to cite Stephen Breyer's concerns that delays at some point are unconstitutional. 

Murder of police officers is one of those crimes even those wary of the death penalty might make an exception for. However, as usual, some red flags arose. For instance, the jury split on whether to give him the death penalty, with the judge deciding. 

(He also had a failed religious liberty claim regarding what he wanted at his execution.  The Supreme Court rejected it without comment, though it waited until sometime late afternoon execution day or so to do so.)

If there was going to be a busy week of executions in 2025, obviously, Florida would have to get involved. Samuel Lee Smithers murdered two women around thirty years ago (1996). He was the subject of "Deacon of Death," a true crime novel.

(He was a church deacon. He was also connected to church arsons. The murder victims here were prostitutes. Is there some twisted religion angle?)

Smithers was executed when he was in his early 70s. The question remains if it is legitimate to execute him after all this time. Mental issues were flagged, and a victim's father said she would not want him to be executed. What of the other victim?

An execution at this point does have shades of involuntary euthanasia. In fact, the final appeal (as usual disposed of by SCOTUS without comment) argues it is unconstitutional to execute the elderly. The long time that has passed is mixed in. 

Odds and Ends: Peace, Judges, and Sex

I discuss the winner of the Nobel Peace Prize.

There are three types of judges that are elected by New York City voters, rather than appointed by the mayor or governor. 

Supreme Court justices oversee state trial courts for felony criminal cases and some types of civil cases, including ones that involve large amounts of money. 

Civil Court judges in the city preside over consumer debt, landlord-tenant disputes and several other kinds of civil cases. 

Surrogates’ Court judges handle cases related to deceased people’s wills and estates.

I think judicial elections are dumb, partially since the average voter knows nearly nothing about the people on the ballot here. Here's a helpful explainer with links for information.

I still think they are dumb.

This is a book (over 500 pages) from early 2017, so it can do for an update. Then again, it ends with a reminder that the law and social norms repeatedly changed and could change again, especially with new SCOTUS personnel. 

It starts from ancient times. A quick read overall. It argues that morals legislation tends to overlap with religion, so it is a separation of church and state issue. As Justice Brennan realized with obscenity:

Like the proscription of abortions, the effort to suppress obscenity is predicated on unprovable, although strongly held, assumptions about human behavior, morality, sex, and religion.

The final sections cover sexual speech, reproductive liberty, and gay rights. It is not totally comprehensive (it should at least reference Mormonism and polygamy), but it covers a lot of ground. Good book overall. My copy had no cover. 

Roy Lee Ward Execution

And Also: I discuss Justice Kennedy (who has a new book) and related subjects here.

Ward brutally murdered Payne in her Dale, Indiana, home after knocking on her door and pretending he was looking for a lost dog. His attorneys spent the next two decades angling for new trials and appeals until his execution was finally set for Oct. 10.

This sums things up. 

But those drugs came at a high cost, more than $1 million for four doses. In June, Braun said the state wouldn't immediately buy more, raising questions about if Indiana would consider a new execution method. The first-term Republican cited the high cost and short shelf life.

The final appeal concerns the drugs used for the execution. The state, at significant cost, resumed executions last year after a 15-year hiatus. Obtaining drugs and ensuring they are of adequate quality is a continuing problem, as discussed by Professor Lain in her book. Lethal injection continues to be a dubious method of execution for various reasons. 

States also do not provide transparency, including “whether they are expired, how they are transported and stored, or their potency and sterility.” Furthermore, there was evidence that a recent execution was botched. 

Such claims, sometimes for procedural reasons, have not received much success. The Supreme Court overall has not been sympathetic. He also raised other claims over the years, including arguments that his autism and learning disability mitigated his crimes. 

I think that over twenty years raises the unconstitutional delay concerns cited by Breyer and others. The delays are significantly a result of criminal appeals. But appeals ensure justice. And, at least some of his claims did have some merit.  

Overall, he committed a horrible crime. A long prison sentence serves both penal and public safety purposes. I understand many won't be concerned that he was executed. However, it was neither necessary nor proper.

The article notes that his lawyers dropped final appeals after negotiating an agreement regarding the execution procedures. The media were not present during the execution. This is troubling.

Meanwhile, others campaigned for the end of capital punishment. Busy week ahead. 

SCOTUS Back

Welcome Back (not really) SCOTUS. 

The Order List to dispose of a bunch of petitions rejected by the Long Conference at the end of the summer came first, with eight of nine (not Jackson) recusing from something & only Kagan saying why (why Sonia?).

Fix the Court tells me on BlueSky that this is Sotomayor's practice. The only time she did explain, she did so along with one or two other liberals. 

I don't recall a solo case since Kagan/Jackson started citing the Code of Conduct, where Sotomayor didn't say why, though clearly might have missed it. 

Since I have made it an issue to single out conservatives here for criticism, fair is fair. Bad justice! To really go into the weeds, she didn't even completely stay away. She granted a request for a delay. (Checked the docket page.) 

Fix the Court summarizes:

OT25 just started & we've already had some recusals

— All justices but Jackson have recused

— Kagan is the only one to explain hers

— Alito leads with 4 (of 11 total), all due to his/Martha Ann's stocks

— 5 due to prior judge/SG work

— 2 due to a justice being sued

After a lower court judge recused in a big Trump case (it didn't help the Administration, so far that a Trump appointee took over), Fix the Court compared how Thomas did things.

The Supreme Court then formally announced the opening of the new term. You can now hear live audio of the oral arguments. Anything else, including opinion announcements, had not been included. 

For the first time, they did not skip over the motions portion, so we were able to hear bar admissions. I appreciate this. I don't know how much they will continue to do it. I would be more surprised if they included opinion announcements. We shall see. 

The opening material is still not permanently on the website. You can only access the oral argument audio files. I did not see the audio button on the website until after the argument had been going on for some time. So, you had to be listening on C-SPAN. 

Of course, we still do not have video, as is present in many lower and foreign courts. Justices can be seen on news programs and late-night shows promoting their books. So, that's okay, right? 

The first oral argument was a law school hypothetical type of case that had cross-ideological implications. Don't worry. The Roberts Court will better show itself tomorrow. They need to be reformed now.

ETA: An "order in a pending case" involving Google was separately dropped. Here's the whole thing:

(ORDER LIST: 607 U.S.)

MONDAY, OCTOBER 6, 2025

ORDER IN PENDING CASE

25A354 GOOGLE LLC, ET AL. V. EPIC GAMES, INC.

The application for partial stay presented to Justice Kagan and by her referred to the Court is denied.

==

Sometimes, instead of the usual "in a short order" language, you can simply quote it. The order does not provide a link to the docket page. That would be nice.

Also: On Wednesday, another order dropped on a pending case involving Alabama requesting a stay in a capital case. The stay request was denied, but there was a bit more discussion than usual. 

SCOTUS Watch

New Term Arriving

The Roberts Court is part of the problem. Trump 1.0 made it worse. A new term begins on Monday. 

It will look normal, though we should not forget how corrupt (Thomas and Alito's ethical problems have not disappeared) and horrible they have been. Reform (including court expansion) should be, must be, part of the plans of a new beginning when it arrives. 

They will hand down the usual 9:30 Monday orders and then start a new set of oral arguments are about 10 A.M.  Don't pretend all is well. 

Chief Justice, sounding reasonable, will announce the first oral argument. It will be a law school hypothetical affair. 

Robert Court Is A Problem 

The horrible conversion therapy case, which is fake as a three-dollar bill (or a praying coach), comes on Tuesday. A tainted Court is predicted to provide one more harmful decision against trans people. 

These cases suggest that tweaking things is not enough, even if people like Steven Vladeck will provide some well-analyzed ideas in that general direction. He's writing a book on the matter. 

Personnel ultimately is the problem. I acknowledge the difficulties with court expansion, including the realistic chance of it occurring. It has to be discussed. It has to be put on the table as a legitimate option. 

The issue has been raised for a few years now. It still is only something a small minority (as compared to term limits) supports. It is far from a "Democratic" court reform yet. It is supported by a small subset. 

Somehow, if only to move to the Overton Window, it needs to obtain more support. Nice sounding term limit proposals, which won't alter the Court for years (maybe decades!), are not enough. 

Chief Justice Barrett, with people who might make us pine for the days of Thomas and Alito, is not what I want in our future.  I don't want some tweaks so the car thieves will drive our car a tad more carefully. 

Orders

Okay. I started this entry expecting it would be a brief entry about some simple orders. It basically would have the next paragraph. As you can see, it expanded. 

It handed down some housekeeping stuff this week, including taking on some more cases. One is a significant Second Amendment dispute.

We had another Friday afternoon shadow docket (the dissent speaks of the "emergency docket," but they are still acting in the shadows) involving hundreds of thousands of Venezuelans seeking temporary protected status. 

The liberals dissented from yet another unexplained, shadowy diktat. Jackson wrote a dissent. She spoke of her "lower court colleagues," who in reams of pages did the work that the Supreme Court has overturned. 

They have done so in reasoned and thoughtful written opinions—opinions that, in the normal course, we would get to parse, assess, and embrace or reject, while fully explaining our reasoning. 

She speaks of the stakes:

What should happen to 300,000 human beings while our colleagues on the Ninth Circuit, and then perhaps we, do the job of judging? 

She notes her dissent:

Because, respectfully, I cannot abide our repeated, gratuitous, and harmful interference with cases pending in the lower courts while lives hang in the balance, I dissent.

We are not one of her colleagues or a lower court judge, who was sometimes yelled at by the likes of Neil Gorsuch. We need not be "respectful" regarding these assholes. 

Who are these clowns? Remember this when Chief Justice Roberts politely opens the new term as he and his colleagues are empowering the Trump Administration. Who they are empowering?

We also read (in a piece by Charles Savage, showing there are reasons to check out NYT materials) this:

U.S. Military Attacked Boat Off Venezuela, Killing Four Men, Hegseth Says

Savage bluntly notes that there is a clear belief among people with the expertise to know that these attacks are illegal. Trump v. U.S. blocked justice against the commander-in-chief. 

Everyone else, however, remains liable for what very well might be multiple acts of murder.  

This week, Mr. Hegseth forced top U.S. military officers from around the world to travel to watch him and Mr. Trump give speeches, and the president suggested using troops in American cities as “training grounds” for future wars.

Kavanaugh Conspirator 

Meanwhile, the person who planned (but at the last minute decided not to do so) to kill Justice Kavanaugh was sentenced. The article (correctly) cites the range of political violence present in this country, not merely the "left-wing" sort (except for victims), which some of the usual suspects cite. 

This includes, again, as noted in the article, an uptick of threats to judges. One tactic is to send pizzas in the name of the murdered son of a judge. 

Trump's attacks on judges, personal attacks far beyond simple disagreement, do not help this situation. Trump and his supporters incite violence. Judges are "rogue," or "deranged," or "tyrants." The link shows people like Attorney General Pam Bondi joining in. 

I strongly criticize the Supreme Court. I'm a nobody. I'm not the leader of the executive branch or the federal justice system. I don't have the platform or a segment of supporters that contains a dangerous element. I would be sometimes more wary if I did. 

I don't use the level of epithets that top Trump people use, though I might wish to do so. Unlike one member of Congress, I don't use wanted posters. 

“Violence is never a means to a political end in a democratic society,” said Judge Boardman, before delivering the sentence. “We cannot and will not tolerate it.”

Yes. The wrongful use of violence, from whatever source, is a poison in a democratic society. 

What To Do

We DO need to openly address what is happening, including bluntly calling out wrongdoing and illegal activity. We need to continue to resist, including using lower courts to delay, and obtain whatever wins (there will be some) possible on the Supreme Court level.

We need to support basic republican principles, including in the face of wrongful court decisions. We need to discuss possible reforms. Judicial nominations provide one avenue to address the issues. 

My skill set includes writing about things. Yes, there are other things I can do. But those who report and discuss our situation have a place in the campaign. Tom Paine wasn't out there fighting on the frontlines with a gun. Writing is part of resistance campaigns.

I appreciate Chris Geidner and all the others who report on the courts. I have been interested in the courts since I was a teenager. I still am. 

A new term is akin to a new baseball season for me in some ways. These days, it does sometimes seem that I'm a White Sox fan. Oh well. So is the pope.