The First and Third State of the Court’s Emergency Request to Execute Alan Miller: A View from a Judge’s Intensity

For decades, the Supreme Court has tied its legitimacy at least in part to its ability to offer principled explanations for its decision-making. The idea is not that the court’s legitimacy flows from whether it’s getting these cases “right”; it’s that it flows from public acceptance that its decision-making is informed by principles – even principles with which many of us might disagree. Justice Amy Coney Barrett succinctly summarized this idea in an April speech at the Ronald Reagan Presidential Library: Before we become too critical of the court for handing down decisions that we think are wrong, we all need to “read the opinion.”

The Supreme Court voted last week to allow the execution of Alan Miller, who killed three people in a 1999 workplace rampage. The court ruling came around 9 p.m. Thursday, about three hours before Miller’s death warrant was set to expire. The state was unable to execute Miller before midnight because they couldn’t get his vein to open.

Nonetheless, it was the third time in less than a year that the justices have granted a state’s emergency request to allow an execution that lower courts had blocked to go forward.

The final day of the term was undecided and it was the last one. The future of the right to abortion, as everyone in the crowded courtroom knew, was about to be revealed. When I heard the three-point announcement the justices had made, I was in a daze, fighting my way through the brain fog to comprehend that the court had actually affirmed the merits of the case.

Indeed, the ruling was the 17th of the current term (which began October 4, 2021) in which the justices used unsigned orders to undo lower court rulings – and the 14th of those 17 in which they provided no explanation. (During the court’s previous term, 20 of its 24 grants of emergency relief likewise came with no opinion.)

The state believed it was free to use its lethal injection protocol because they didn’t have a record of receiving the form. The District Court, after conducting an evidentiary hearing, found that it was “substantially likely” that Miller had in fact submitted the form, and that the state had simply misplaced it.

That kind of factual finding is usually given significant weight on appeal, and can only be changed if an appellate court concludes that it was clearly incorrect. The trial court should be given some deference, according to the idea. 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 impression is that the justices leave when the lower courts go to great lengths to explain and defend their rulings and so on, like Miller’s case. The court at least appears to be acting for political reasons rather than legal ones.

To take another example, consider the justices’ summary ruling in June in a challenge to Louisiana’s congressional redistricting. 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.

The Supreme Court should be required to explain it’s actions, but no serious argument can be made about it. More than 5,000 appeals are received by the justices every year, but they can’t give you a detailed explanation of why they wouldn’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 dynamic on the bench this week suggested some justices feel a sense of urgency regarding the court’s direction, whether in favor of the rightward trend or against it. The new jockeying adds a dimension to a reconstituted court, reconvening after the most tumultuous term in decades that included the reversal of a half-century of abortion rights.

As Justice Elena Kagan said in a talk this month at Northwestern University School of Law, “When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as trying just to impose personal preferences on a society irrespective of the law, that’s when there’s a problem — and that’s when there ought to be a problem.”

The misuse of the court’s power is exemplified in the way it eliminated the federal right to abortion. 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 also agreed to hear a Mississippi challenge that does not seek to overturn the Supreme Court decision on abortion. 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.

The Reopening Conference on Supreme Court Cases Tagged with Black Holes: The Case of the Highest Order of Seniority in the U.S. Supreme Court

During the past seven days, Supreme Court Justice Ketanji Brown Jackson has basked in celebrations tied to her historic investiture and, in the newly reopened courtroom, become a dynamic presence at oral arguments.

She will be the ninth and last justice to give her thoughts on how the cases should be decided on Friday, in a small room off the chambers of Chief Justice John Roberts. She is one of three women on today’s court who are conservative and liberal.

She countered arguments by an Alabama state lawyer who pressed a “race neutral” approach to the relegating of districts that would make it harder for blacks to get jobs. The landmark in the 1960’s Voting Rights Act.

Jackson’s intensity in the first four arguments of the session recalled some junior members of the past, such as the late Justices Ruth Bader Ginsburg and Antonin Scalia, who declined to hold back among their more seasoned colleagues.

Jackson’s active role was documented by the author of the Empirical SCOTUS blog. He observed that Jackson spoke more than any other person, and that it was very rarely that a justice spoke more than 2,000 words.

The justices typically avoid discussing cases with each other before hearings and the conference. The public sessions give justices the first chance to convince colleagues, even if they have to use the lawyer as a foil.

The conference, as consequential as it is, can be stilted. 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.

The sessions were fast paced, with tension, and maybe it was for the first time since March 2020 when there was the Covid-19 outbreak. Only a few lawyers, journalists, and selected spectators were allowed into the room when the justices took the bench for the previous session.

Jackson sits to Chief Justice Roberts’ far left. Her addition has made the bench more pointed on the left side. Immediately next to Roberts on the left is Alito, then Elena Kagan, Brett Kavanaugh, and Jackson. (The justices take their tall black leather chairs in alternating order of seniority, with the chief justice at the center of the bench.)

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. She seems to have plans to try to pick up votes in the conference.

Source: https://www.cnn.com/2022/10/07/politics/supreme-court-ketanji-brown-jackson-voting-rights-act/index.html

The Alabama Controversy: What Have We Learned About Dobbs’s Decision? The Case against Real-Time Audio

The Alabama controversy centered around standards for voting change claims to state plans under a section of the law that forbid anyone from denying a citizen the right to vote because of race.

She said that she understands that the framers and the originals thought about history and traditions, and not race, in creating the Equal Protection problem.

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. For all I know, he would have relished the opportunity, and his announcement might well have been as bloodless in person as it appeared on the computer screen. 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.

I agree with the critics of the court’s decision not to show hand-down arguments live. For years the justices resisted releasing real-time audio, only to realize at the end of the case that it did nothing to harm the court. 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 Justice William O. Douglas in his article on the history of opinion announcements, which showed how Justice Felix Frankfurter’s hand-down deviated from the text 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. As we headed out, Stone said that he would never have consented to it if he had been told about it.

These are not classified, and the public already gets access to them when the court releases audio files at the end of each term through the National Archives, then posts them as part of its archive of every decision. So the justices can be under no illusion that they will not in fact be speaking to the world, even if the courtroom they address is nearly empty.