Purcell Principle
On Wednesday, a stay was granted resulting in a Louisiana congressional map in this election cycle that contains two majority-Black districts. The latest in a long and winding battle has a short-term positive result for Democrats.
The longer effects are mixed. The liberals dissented with Jackson alone writing a short opinion. As Chris Geidner noted, it is helpful when liberals "lay out their vision for approaching this moment."
The whole thing involves the so-called "Purcell principle" (not the hand sanitizer) that bars change deemed "too close" to elections. Liberals have argued the principle was applied too strictly. Sometimes, a dispute arises in an election year (such as needs arising during COVID) warranting action.
Justice Jackson argued that there was still time to address the matter The district judge could have handled things by early June. That is not too close to an election.
The whole dispute is somewhat convoluted, including intra-party Republican disputes affecting line drawing. We also have (unrelated) two people named "Landry.” Is this a Friday Night Lights episode? Wait. That was Texas.
Here is another discussion about what is involved. It’s just a tad complicated!
Opinions
Standard gripes: back-ending all these opinions is bad policy. We still have around forty opinions and the end of June is quickly approaching. The main opinion handed down today was argued at the beginning of October. What took so long?
Also, opinion announcements should be available on the SCOTUS website, both audio and a transcript. Oyez.com will eventually have them. But, if SCOTUS thinks opinion announcements are useful, share them with all of the class.
Anyway. Kagan and Sotomayor each had short unanimous opinions involving minor issues of federal statutory interpretation. Sotomayor's opinion dealt with an issue where the oral argument was held in late April.
Thomas wrote the main opinion and used originalism to analyze a policy supported by Elizabeth Warren. And, it was good news. A broad attempt to attack the Consumer Financial Protection Bureau failed. Congress adequately provided authorization as required by the Appropriations Clause.
This is the ongoing saga of “going for broke” conservative attacks failing. The Supreme Court is not suddenly a liberal institution. It does have limits.
Kagan had a short concurrence (joined by Sotomayor, Kavanaugh/Barrett, the latter pair doing an O'Connor/Kennedy impression) noting she would also note that history and tradition as a whole (not just original understanding) made the case.
(Roberts likely agrees but he assigned Thomas the opinion and wasn't going to sidestep him. Roberts is not a dye-in-the-wool originalist.)
Kavanaugh and Barrett's silent concurrence here suggests their support of Thomas' originalism in the Second Amendment context has some shades of gray. The pair regularly join together to provide a moderate conservative approach. At least, modest as compared to the likes of Thomas, Alito, and Gorsuch.
Jackson concurred separately, noting that she thinks the Supreme Court should be particularly wary of limiting the powers of other branches unless there is a clear requirement. She has started to have a pro-democracy theme in her opinions.
Alito Follies
Alito (who still has no majority opinion) dissented with Gorsuch. We are left wondering what major opinion was assigned to him. Not likely to be ideal.
We later found out that the big Alito news was that for some unclear period in January 2021 (after 1/6) an upside-down flag was raised at his house. An upside-down flag (as shown in a 1970s Supreme Court opinion involving a “peace flag”) is a symbol of distress. The '“distress” here was a neighbor with an anti-Trump display.
Alito put the responsibility on his wife, noting she did it in response to some offensive neighborhood display. How a symbol popularly known as a “Stop the Steal” message did this is somewhat unclear. His wife appears to be as thin-skinned as he is.
[Scott L. reminds us of her role in his Supreme Court confirmation. Liberal advocate Goodwin Liu was filibustered after being nominated for the Federal Court of Appeals. A major allegation was the lack of judicial temperament allegedly being too mean to Alito during his confirmation. Liu had a soft landing: he is now on the California Supreme Court. It would amuse me if somehow Liu filled Alito’s seat.]
Kagan was never married. Sotomayor is divorced. I have not heard about any complications from Jackson’s husband. There was an allegation Roberts’ wife financially benefited from his job. I don’t know of any problems regarding the other spouses, putting aside — obviously — Ginni Thomas.
The Supreme Court has a policy that employees (they refused to say if justices count) must not display partisan symbols. I think this is problematic on First Amendment grounds. Nonetheless, judges have a clear need to avoid the appearance of bias, especially as they consider election disputes.
Of course, the Supreme Court does not have a binding ethics rule like other federal judges. Some Democrats want to pressure them by tying funding to the passage of a binding ethics requirement. These days, the conservatives do not even explain why they recuse. Kagan and Jackson have repeatedly shown them how.
The article notes that the flag dispute was not limited to a private neighborhood matter. The Supreme Court itself to some degree knew about it. I do not remember any discussion at the time. Why is it only coming out now?
ETA: If you have access, this is an excellent thread by Sen. Whitehouse.
I wrote this originally shortly after the story first came out. The exact details continue to be hazy. For instance, some are assuming why neighbors don’t want to say more. Are they correct that neighbors have a reason to be fearful? Maybe so.
Alito using Fox News instead of a neutral ethical complaint process doesn’t help.
An update on old Thomas news is almost "yawn" now, but his ethical problems have not gone away.
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Oh well. We will have more opinions next Thursday. They also had a conference today, which means an Order List next Monday. And, who knows what else will arise.