After an unofficial mid-winter break, the Supreme Court came back last Friday with a conference and opinions. They continued to work this week with orders, two opinion days, and oral arguments. The Order List was atypically long, with multiple justices providing dissents and statements regarding some of the cases not taken.
Order List
Steve Vladeck once helpfully discussed the different types of decisions the justices make. An Order List is a usually scheduled collection of orders that rarely are explained. It is a type of housekeeping measure, though there can be little interesting tidbits. For instance, only the liberals explain why they recused themselves from a case. Opinions and opinions related to orders are found on separate pages.
Sometimes, a per curiam (unsigned opinion of the court) is tossed in, or a dissent is provided to a denial of cert. (full review). A few times a term, there are many such dissents, sometimes also including statements that show some concern but agree that a case is not suitable for full review by the Supreme Court.
Monday’s Order List was one of those times. Multiple relists were disposed of, nearly all of which were discussed here. Scotusblog defined the term:
When a case is “relisted,” that means that it is set for reconsideration at the Justices’ next Conference. Unlike a hold, this will show up on the case’s electronic docket. A relist can mean several things, including the fairly straightforward prospect that one or more Justices wants to take a closer look at the case; that one or more Justices is trying to pick up enough votes to grant review (four are needed); that the Justices are writing a summary reversal (that is, a decision that the lower court opinion was so wrong that the Court can decide the case on the merits without briefing or oral argument); or that one or more Justices are writing a dissent from the decision to deny review.
For instance, Thomas and Alito want the Supreme Court to take a case to reconsider Hill v. Colorado, which allowed buffer zones outside health clinics. Thomas specifically quotes the statute involved, which says just that, while claiming it was only about “abortion” protests. He cites Dobb,s but Alito’s misleading citation does not erase that Hill is not reliant on Roe v. Wade, underlined by the opinion not citing Roe.
For instance, anti-trans protests might involve people walking up to patients at such and such clinic and invading their personal space. The open-ended nature of the precedent and problems with overruling probably led to the other justices’ caution.
Sotomayor wrote two statements concerning a double jeopardy case (involving a retrial over twenty years later) and a Fourth Amendment matter. She explains there are procedural reasons not to grant the cases. Nonetheless, she is concerned about them. Other justices were also concerned about criminal justice matters.
Thomas continued his campaign against a precedent that limited tort claims brought by service members alleging medical malpractice. He has his moments.
Glossip Again
The major news was the (not too surprising) announcement (the only possible problem was procedural, and the Court can usually find a way around those things) that Richard Glossip deserves a new trial.
We knew it was a win when Sotomayor was the one who wrote the opinion. Barrett disagreed that a new trial was appropriate but agreed with the gist of the opinion. Thomas and Alito dissented. For those who go that way, here’s a conservative take.
The opinion holds that the state hid key evidence showing their lead witness lied on the stand. Oklahoma Attorney General, a Republican, sided with Glossip. Also, a special investigation on behalf of dozens of state legislators found many problems:
One investigation, conducted by the law firm Reed Smith on behalf of a group of several dozen state lawmakers, determined that a wide range of errors, destroyed evidence, and police failures “fundamentally call into question the fairness of the proceedings and the ultimate reliability of the guilty verdict against Glossip for murder.”
Also, two former Justice Department solicitors general argued against the Oklahoma court’s ruling (one from each party). The Court had to appoint someone to defend the argument below. It was a case where two conservative justices were reachable.
The special blatant nature of this case makes this somewhat a narrow affair. Nonetheless, Justice Sotomayor did manage to flex basic due process principles that could be used by other defendants in future less newsworthy cases.
Richard Glossip (alleged the mastermind though he didn’t commit the actual murder) has continuously claimed innocence, rejecting plea deals. There is some evidence that he covered up the crime, making him look guilty.
Sometimes, the state deprives people who did the crime of due process of law. I think that even if he did it, his over twenty-five years in prison is punishment enough.
Glossip lost his attempt a decade ago to challenge the method of execution. The result was 5-4 with Breyer (with Ginsburg) separately arguing the death penalty is probably unconstitutional. Oklahoma then had an extended moratorium before restarting executions once more. They should just cut bait in this case.*
Meanwhile, on Monday, the justices heard another capital case involving a defendant trying to obtain allegedly exculpatory DNA evidence.
More Opinions
The “B” opinion on Tuesday involved attorney fees. Roberts for a 7-2 Court.
Jackson and Sotomayor dissented, concerned the majority wrongly interpreted a federal statute while hurting civil rights cases. Jackson’s dissent was longer than the majority opinion, providing another chance for her to speak to the future. Congress can change the law to fix what Jackson sees as a problem, though good luck with that.
The civil rights implications added to the dissent’s spleen, but the rule will not only apply to people liberals will be too sympathetic to. Kagan also joined the majority.
Wednesday was another opinion day. Two opinions (by Alito and Kagan) were handed down regarding civil procedure and trademarks. Each was a short unanimous opinion with Sotomayor adding a few pages concurring for one of them. Nothing too exciting.
The “let’s get out of here” spirit carried over to the oral argument, which felt like a somewhat halfhearted affair that took about an hour. The Court usually spends more than the allotted time, especially with its new oral argument format that allows individual justices to ask questions separately. They didn't linger this time.
Here are two liberal advocates discussing the case with quite different sentiments. The first one seems to match the tenor of the oral argument (FWIW).
Trump Watch
Chief Justice Roberts handed down an “administrative stay” on Wednesday to hold up a lower court judge’s order forcing the Trump administration to resume the foreign aid funding that it illegally halted. The caption suggests what is at stake:
DEPARTMENT OF STATE, ET AL. Applicants v. AIDS VACCINE ADVOCACY COALITION, ET AL.
He ordered any response to be handed in by noon on Friday. An administrative stay is typically a brief hold-up to allow the justices to examine an issue more closely.
The litigation started right away, and the Trump Administration is not willing to let it play out normally, which could involve an extended court of appeals review.
Steve Vladeck and Chris Geidner discussed the order with somewhat different perspectives. Both were concerned with Geidner somewhat more negative.
Administrative stays are open-ended but generally are addressed quickly. We might have some answers as soon as next week.
Meanwhile …
While speaking Saturday at an event for Princeton University alumni, Kagan said the public’s entitled to express views about whether the court “is doing its job properly, no matter how hard we’re working and seriously we’re taking things.”
Kagan reaffirmed the right of the public to criticize Supreme Court actions.
Chief Justice Roberts's end-of-the-year report might lead some to doubt it. His comments about following precedent might partially have Trump’s likely plans in mind, but Roberts also too easily slid between criticism and disobedience.
And Later …
The Supreme Court had another conference on Friday, to be followed by more orders on Monday, plus some more oral arguments.
More opinions are likely on Tuesday and Wednesday, though the calendar (found on the SCOTUS home page) always says they “may” come down. Welcome to March.
There are also six scheduled executions (so far) this month.
This book provides a tragic story with a touch of justice.
A black man likely wrongly prosecuted for rape in 1906 Tennessee obtained a stay of execution from the Supreme Court. An angry mob, mad that speedy justice (“justice”) was blocked (the crime occurred less than two months earlier), lynched him.
The Supreme Court was appalled that their authority was challenged. A contempt proceeding (which ultimately took three years) was brought against the sheriff, some of his deputies, and some alleged members of the lynch mob. The sheriff and a few others were ultimately convicted and received sixty to ninety days in prison.
The book was written in 1999, and some updates are available. Ed Johnson’s conviction was overturned. A photo of Ed Johnson is available as are more details about the life of the two African American lawyers who led his appeal.
The book, by a legal writer and trial attorney, also makes a few errors. For instance, a reference to an earlier instance of a state ignoring the Supreme Court and executing someone was not a few years back. It took place during President Jackson’s presidency. Also, the Supreme Court did not block execution for rape in 1972.
Nonetheless, overall, it is a compelling account of a little-known bit of legal history.
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Note: Supreme Court minutiae alert: There are now a few edits (typos corrected) to the opinions handed down. A separate link is provided to the new corrected opinions.
The Court began to stop doing this because posting of a draft copy of the final bound version of the opinion has been sped up, and that has a note of any changes.
For whatever reason, they have gone back to occasionally posting the edits immediately. I’m the sort who sees this and thinks, “huh.”