The Alabama Supreme Court Clears the Way for Alan Miller to Kill Three Men in a 1999 Workplace Rescuing Robustly: What Do We Really Want to Do About It?

The Supreme Court is more than ready for abuse by the conservative majority. The question is whether the American public is willing, through its representatives in Congress, to discipline the court — to remind it of the actual scope of its power and relegate it to a less central place in our constitutional order.

By a 5-4 vote, the Supreme Court cleared the way last week for Alabama to execute Alan Miller, who killed three men in a 1999 workplace rampage. It was around three hours before Miller’s death warrant was set to expire that the court ruled. In a turn of events, the state wasn’t able to execute Miller before midnight because prison officials couldn’t access his vein to administer the lethal injection.

For the third time in less than a year, the justices gave permission for an execution to go forward despite lower courts blocking it.

The justices refused to explain themselves in the Miller case. Miller said that he wanted to be executed using nitrogen hypoxia, which is what he is entitled to under Alabama law.

The Thursday ruling was, unfortunately, not an outlier. The justices have relied on unsigned and unexplained orders, part of their shadow docket, in the past to grant requests for emergency relief, including whether to clear the way for executions, block state Covid-19 restrictions, or to allow federal policies to go forward.

The state claimed that it had no record of receiving the form, and so it believed it was free to use its lethal injection protocol. The District Court found that it was most likely that Miller had submitted the form and that the state simply didn’t misplace it.

It can only be overturned if an appeals court concludes that the factual finding was clearly incorrect. The trial court is allowed to be treated with some degree of deference. The lower court is not only closer to the issues but has had the chance to hear from witnesses and to assess their credibility directly.

No one disputes that the Supreme Court has the power to overturn a lower court’s conclusions, whether as to law or fact. The problem is the impression that the justices leave when lower courts have gone to great lengths to explain and defend their rulings, and, as in Miller’s case, the court overrides them summarily. The court appears to be acting for political reasons, rather than legal ones.

The justices gave a summary ruling in June in a challenge to Louisiana congressional district lines. After a lengthy evidentiary hearing, a federal judge issued a 152-page ruling explaining in detail why the district maps adopted by the Louisiana Legislature impermissibly diluted the votes of Black Louisianans in violation of the Voting Rights Act. The District Court ordered the Legislature to try again, specifically concluding that there was plenty of time to draw lawful maps before the 2022 midterm cycle.

There is no reason to think the Supreme Court should have to explain its actions. More than 5000 appeals are received by the justices every year but they can’t give a detailed explanation as to why they didn’t take most of them. One might even defend the practice of not typically providing an explanation when denying a request for emergency relief, including when a death row inmate asks the justices to block an execution that lower courts have allowed to go forward.

The First Three Years of the Reconstitution of the High Court: Observations from the Cases of Justice Douglas, Ruth Bader Ginsburg and Antonin Scalia

Justice Jackson has joined an institution of isolated chambers and archaic procedures. It is also a place that has lost the public’s trust. So, as she navigates the cloistered corridors, she’ll also have to watch her footing in the ongoing debate over the institution’s legitimacy.

The late Justices Ruth Bader Ginsburg and Antonin Scalia did not hold back in their arguments, and Jackson’s intensity in the first four arguments recalled them.

Jackson, who will take a ceremonial oath on Friday, began reviewing cases in June after officially assuming her position on the high court.

The cases were already under way when the three previous appointees were seated, with little time before facing difficult votes. Barrett and Kavanaugh were confirmed in October 2018 and 2020, respectively, after oral arguments had begun, and Gorsuch was seated in April 2017.

Stephen Breyer stated in a CNN interview last year that it took three to five years for Jackson to succeed. Justice Douglas said three years. Souter believes that it is five. … I was pretty nervous the first three years at least, and maybe a little longer … Can I really do this job? And then you begin to absorb the mores of the institution.”

There are mores in the atmosphere that is different to the Supreme Court, and it can be disconcerting even if your experience is on lower federal courts.

The justices on the bench seemed to have different opinions on the direction of the court this week, either in favour of the rightward trend or against it. After the most tumultuous term in decades that included the reversal of abortion rights, the new jockeying gives a further meaning to a reconstituted court.

The court’s reputation will be damaged by the New York Times article. Americans want the court to be above partisan politics (less than 20% polled recently by Pew think that the court should bring their political views into decision making), but a growing number of voters think that the court is a partisan institution.

Similarly, speaking to an audience at Northwestern University Pritzker School of Law, Justice Kagan warned that the court’s legitimacy was at risk if its decisions were seen as an “extension of the political process.” The Supreme Court must “act like a court,” she remarked, as if the gravest sin of the law is when it seems like politics instead. When a body departs from precedent or proceeds by leaps and bounds, the court does not succeed. She seemed to be supporting her fellow justice John Roberts, who has drawn praise from legal commentators for his methodical approach to judging rather than his more frenetic approach to judging that is popular with conservatives.

Choosing the Cert Pool: A Case Study with the Help of Judicial Assistant Roberts, L.J. Rehnquist

One of the most daunting tasks involves the screening of hundreds of appeals from people who have lost their cases in lower courts.

The “cert pool” began in the 1970s as a way to ease the court’s workload, and not all justices have joined over the years. Some justices thought it would add a level of bureaucracy or lead to manipulation of the review process. For instance, Justice John Paul Stevens, who served from 1975 to 2010, never joined the pool.

The justices take up less than 1% of the cases that come their way, hearing and resolving only about 60 each annual session. Justices primarily look for instances in which lower courts have issued conflicting decisions (seeking to resolve those conflicts) or cases that test the reach of federal power.

More often than not, however, justices have joined the pool through the years, including Roberts, who himself was part of it when he served as a law clerk to then-Associate Justice William Rehnquist in 1980 and 1981.

Three of the four clerks in the chambers of Ginsburg, Breyer, and Kennedy have previously worked for the justices, so Justice Elena Kagan enlisted their help in appointing her to the bench. She said she depended on them – up to a point.

The Semi-Real Electoral Conference: What happens when you decide to make a decision, and how you feel about it, how you will respond to it

Whenever she would have to make a decision regarding an internal procedure, she would inevitably get three “entirely different” views. “So I would sort of listen to them, and say, ‘Why don’t we do that one.’ … Sometimes I would be happy with my choice, and other times we would do it that way, and I would think: that is the worst way of doing things.”

The conference is consequential and can be boring. The justices proceed in rigid order of seniority, and no justice is allowed to speak twice until each justice – in order of rank – has offered his or her view.

Jackson has the junior-justice job of taking notes of the proceedings. Nine people are allowed into these sessions. If someone knocks on the door, to deliver a book, document or forgotten pair of reading glasses, answering the door falls to Jackson, too.

Her first session of oral arguments will be Monday, and she will take the freshman seat at the end of the bench, to the chief justice’s far left, next to Kavanaugh. Barrett will now be on Roberts’ far right. The justices sit at the bench in alphabetical order of their rank, with the justice closer to the chief justice in the center chair.

Beyond the new patterns in the justices’ consideration of cases, a delicate dynamic can emerge among the nine in extracurricular matters when a new justice arrives. Roberts himself told C-SPAN in 2009 that the arrival of a new justice can be “unsettling,” and in 2017, he and Gorsuch fell into some early squabbles, including over Gorsuch’s decision to skip a private justices’ session, soon after his confirmation, because of a previously scheduled commitment.

In the beginning, Alito also had trouble with the microphone in front of him, sometimes accidentally hitting it with his hand or bumping his head against it. “It is in the way,” he told me in his early months regarding the placement of the microphone. “Then you can’t help hitting it when you gesture. It’s kind of awkward. Alito used to sit on the bench. He now sits back a bit.

How the High-Energy Judiciary Left Texas After the Civil War and its First Amendment Constituents Legal Right-Handedness

Back in the early 1980s, after Sandra Day O’Connor, the first woman justice, joined the bench, she inadvertently irritated Justice Harry Blackmun by settling into a small justices’ private library.

Blackmun had been the only justice who used the private quarters at the time, and once O’Connor began using it, the sometimes-prickly Blackmun made sure she and the rest of the justices knew he considered it an intrusion.

Blackmun was succeeded by Breyer in 1994. “Justice Blackmun told me “You’ll find this an unusual assignment”, Breyer replied this week.

President Biden called on Americans to stand against the assault on democracy by extremists, in a recent speech at Independence Hall. He insisted that we are not powerless in the face of these threats. We are not in this together.

This theme of philosophical inconsistency has continued into the current term, with the court’s newest member, Justice Jackson, receiving near-universal acclaim from liberals for her use of constitutional history in support of affirmative action and voting rights. During oral arguments for both sets of cases, Justice Jackson’s forceful insistence that the 14th and 15th Amendments accommodated race-conscious remedies after the Civil War worked to show that the stated commitment to originalism among right-wing justices was at odds with their political agenda of inventing a “colorblind” constitutional law.

She said in New York in September that the public has a right to expect changes in personnel don’t send the entire legal system because judges are extension of the political process.

The way the court went about eliminating the federal right to abortion is a prime example of this misuse of its power. First, the right-wing justices used the court’s “shadow docket,” which refers to orders issued in response to emergency applications without open hearings or any public explanation, to allow an obviously unconstitutional anti-abortion law in Texas to stand. They will hear a different challenge from Mississippi that didn’t ask them to overturn Wade. When they chose to do so anyway, the majority opinion, by Justice Samuel Alito, cherry-picked its historical examples and dismissed Roe as “egregiously wrong,” disdaining the work of earlier justices who had weighed the same constitutional questions carefully for decades.

Chief Justice Roberts, whose middle-ground approach in the abortion decision attracted not a single colleague’s vote, said the court’s role in the constitutional structure must be respected.

The law professor at the University of Chicago said the chief justice missed a chance to compromise in the abortion case.

I’m not suggesting that anything about the Dobbs decision would be different had Justice Samuel Alito had to explain in court why Roe v. Wade was so “egregiously wrong” that it needed to be overturned. He would have been overjoyed to have the chance, and his announcement on the computer screen could have been a bloodless representation of it. Justices Breyer, Sonia Sotomayor and Elena Kagan, who dissented jointly, would have been something to hear, their 66-page dissent boiled down to a few pithy points.

Or, as Justice Amy Coney Barrett said last year while speaking to an audience at the McConnell Center at the University of Louisville, “this court is not comprised of a bunch of partisan hacks.”

Supreme Court Justice Ketanji Brown Jackson basked in the celebrations of her historic investiture as she became a dynamic presence at oral arguments in the newly reopened courtroom.

Now, on Friday, in a small, oak-paneled room off the chambers of Chief Justice John Roberts, she will be the ninth and last justice to have her say on how the cases heard should be decided. She is one of three that is on the court, which is dominated by a 6-3 conservative-liberal majority.

She pushed back against arguments by an Alabama state lawyer who pressed a “race neutral” approach to redistricting that would gut a remaining portion. the landmark 1965 The Voting Rights Act of 1972 was enacted to protect minority voting rights.

Jackson was documented by the author of argument data for the Empirical SCOTUSblog. In a Twitter post after the Tuesday voting-rights case, he observed that Jackson spoke more than anyone else, noting of her total 2,269 words, “very seldom do we see a justice eclipse 2,000 words.”

The justices don’t discuss cases with each other before the conference. The first time justices can use a lawyer is in public sessions, even if they use the lawyer as a foil.

This week’s sessions were fast paced, with palpable tension, some of which may have flowed from the public attendance for the first time since March 2020 and the Covid-19 outbreak. The justices allowed only a few lawyers, journalists and other selected spectators into the room when they took the bench in the previous session.

Alito, a 2006 appointee of Republican President George W. Bush, and Kagan, a 2010 appointee of Democratic President Barack Obama, often enter through the crimson velvet drapes ready to make their (inevitably dueling) positions clear. Kagan, especially, seems to have a plan in mind to try to pick up any possible votes in the conference.

The Alabama Controversy: When Do Anti-Abortion Groups Tipped Off About a Supreme Court Justice’s 2020 Election Decision? An Analysis of Ginni Thomas’s Email

The Alabama controversy revolved around standards for vote-dilution claims to state redistricting plans under a section of the law that forbids any practice that denies a citizen the right to vote on account of race.

“I don’t think we can assume that race is taken into account when it comes to an equal protection problem because we looked at the history and traditions of the constitution,” she said.

The author of the book “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment” is a law professor at the University of California, Davis. The views she expresses are her own. Read more opinion on CNN.

The New York Times released an article about a possible violation at the high court, which was already going to negatively affect the Supreme Court’s reputation.

Earlier this year, there had been revelations that Ginni Thomas, a conservative operative married to Justice Clarence Thomas, repeatedly urged former White House chief of staff Mark Meadows to overturn the results of the 2020 election.

Clarence Thomas didn’t reassign himself to cases concerning the 2020 election, despite some legal experts suggesting so. (In a statement before meeting with the January 6 committee, Ginni Thomas said she never discussed her campaign activities regarding the 2020 election with her husband.)

In May came the unprecedented leak of a full draft of an opinion in Dobbs v. Jackson Women’s Health Organization dismantling federal protection of abortion rights.

It seemed that the two things that were true were true at the end of the summer. First, this series of revelations had wreaked havoc on the court’s public image, convincing many Americans that it was a profoundly partisan institution.

This latest bombshell about anti-abortion groups allegedly getting tipped off in 2014 about a yet-to-be-released blockbuster ruling will test if the justices have to care about the court’s legitimacy after all.

Schenck wasn’t present when his sources allegedly received news about the ruling, but several acquaintances report his telling the same story about the 2014 Hobby Lobby decision, the Times reported. Schenck’s emails from 2014 and beyond also reinforce that he had some kind of inside information about the case and expected his side to win it, according to the Times.

TheAffordable Care Act requires employers to provide contraceptives for female workers that are approved by the Food and Drug Administration. Some for-profit businesses argued that these forms of birth control were abortion-inducing drugs, and that forcing them to care for them violated their rights.

The Trump White House: How Justice is the Court? An Address to the Schenck, Alito, and other Conservatives during Donald Trump’s Decay

The Supreme Court provided a statement to CNN on Saturday which stated the allegations regarding the dinner conversation are completely false.

The woman cited by Schenck denied receiving information regarding the Hobby Lobby ruling in spite of her admitting that she and her spouse dined at the home of Alito.

The opposite is definitely true in terms of the public’s perception. Trust in the Supreme Court is at a record low. Only 4% of Americans approve of how the Supreme Court is handling its job, according to Gallup, while nearly 6 in 10 disapprove.

On former President Donald Trump’s watch, that view was to change dramatically. Trump kicked things off by promising not just that his nominees would be conservative originalists but that they would guarantee the reversal of Roe.

According to an NPR report, the justices delivered the most conservative wins since 1931, thanks to three Trump nominees on the court.

And it wasn’t just the number of wins — it was how far to the right the court moved. Public school teachers and coaches were allowed to display their religious faith by the justices.

The court undermined the EPA’s power, created a super-right to bear arms that would make it difficult to pass gun regulations, and even cast doubt on the power of other agencies when it came to abortion restrictions.

The court’s conservative majority made no apologies for the revolution it was working in the law even though it was unpopular.

It’s true that the justices hold lifetime appointments — and that no justice has ever been successfully removed through impeachment. The court could be held accountable by threatening to remove the court of jurisdiction, changing the number of justices or ignoring the rulings.

It seems that the justices have developed relationships with conservative organizations and are delivering policy wins to both sides of the aisle.

It’s a terrible idea for Americans to believe that the justices will be neutral arbiters of the law. It is a sign of deep corruption. However the Code of Conduct for United States Judges doesn’t cover Supreme Court justices.

Since Dobbs, the liberal justices have returned again and again to this theme. The justice encouraged her audience not to lose trust in the court system, and to hope that the justices could regain public confidence that the court has not lost its way.

Pointing out such hypocrisy is fair and even sometimes effective. The conservative nature of the dissent is the most striking feature. Bucking up an institution in crisis precisely because it continues to fail liberals is to choose not to do other things in dissent. So is owning conservatives by suggesting that their interpretive methods could serve liberal ends if there were more liberal votes.

Among the liberal justices, by contrast, reform is acknowledged only as something to pre-empt through exercises in self-restraint. They have locked horns with their reactionary colleagues while agreeing with them that the Supreme Court should remain the arbiter of its own enormous power to do good or ill — even though, as Justice Sotomayor disarmingly pointed out during the Dobbs oral arguments, “There is so much that is not in the Constitution, including the fact that we have the last word.”

I agree with the critics of the court’s decision not to stream the hand-downs live as it does oral arguments. For years the justices resisted releasing real-time oral argument audio, only to realize during the pandemic that it did the court no harm whatsoever. I think I understand the distinction the court is making: The argument is the argument, but the hand-down is decidedly not the decision. Tony Mauro quoted an article by Justice William O. Douglas about how Justice Felix Frankfurter left his opinion out of his majority opinion.

“Once Frankfurter, speaking for the court, ad-libbed at length, giving reasons for the opinion that had no resemblance to the opinion. Stone said if Felix had put that opinion in his mind, he wouldn’t have agreed to it.

The public has access to these documents through the National Archives when the court releases the audio files at the end of each term, and as part of its archive of every decision. The justices can’t under any illusion be lying to the world if the courtroom they address is nearly empty.

Raul A. Reyes: Investigating the Issue of Cameras during the January 6 Committee Hearings for Trump’s First and Second Impeachment Trials

This is an edited note. According to USA Today’s board of contributors, Raul A. Reyes is an attorney. Follow him on Twitter @RaulAReyes. The opinions expressed in this commentary are his own. Read more opinion at CNN.

Roberts and other justices who seemed to be open to the idea of cameras while nominated changed their minds after they were seated on the bench. In a TV interview, another justice suggested that cameras might help showboating, an institution that always has its back to the wall. Every decision is fully explained and laid out. But you can’t do that and maintain a show,” Sotomayor said.

But many people can’t or don’t know how to readily access those transcripts, which in any case, don’t convey tone of voice, body language and other nuances of the exchanges between the justices and attorneys appearing before them during oral arguments.

And competition for the limited number of seats can be fierce, often involving lining up in the early morning hours – or sometimes even camping out the night before – to be permitted entry.

Why should access to oral arguments be limited to the well-connected? Is that to people who live near DC or who might be able to spend hours at the Supreme Court?

And there can be little doubt about public interest in such proceedings: Americans have shown they’re willing to tune into politics when afforded the opportunity. The January 6 committee hearings for Trump’s first and second impeachment trials were watched by millions of people.

Source: https://www.cnn.com/2023/01/07/opinions/supreme-court-video-cameras-reyes/index.html

How much do we know about the high court? What did Roberts learn from his annual report on the state of the federal judiciary and the campaign for a democratic outcome?

In his annual report on the state of the federal judiciary, Roberts failed to address controversies swirling around the court, including last year’s leak of a draft copy of the Dobbs decision prior to its official announcement; a New York Times report alleging the leak of the 2014 Hobby Lobby opinion; and efforts by Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, to get Republican officials to challenge the outcome of the 2020 presidential election – which Thomas said after the fact that she regretted.

As the high court grapples with a profound legitimacy crisis, bringing transparency into its decision-making process would be good for the public – and for the court itself. It will only help the institution when it opens its deliberations to greater public scrutiny.