The denial of Alabama's emergency application in Lee has two possible explanations. But because it was unexplained, it's not clear which was doing the work.
My first thought with respect to Abouammo was the "investigation" of trans-care hospitals in Maryland, New York, California, out of the North District of Texas. I thought it's a good reminder that any cases brought will not be in the NDT.
First, is it incorrect to think that a silent (no opinion) order denying relief relies on the ruling of the last lower court to rule as sufficient such as to render unnecessary any further attention from the Court?
Second, given the nation’s celebration of its 250th birthday, should we be concerned that the remaining cases of real importance will be announced in a way that manipulates the timing for politically symbolic purposes?
To the first, I think that's *often* true, but not necessarily so.
To the second, no; although I think there are times when the Court *does* move a bit strategically, I think this is just hard and divisive cases taking a long time to resolve:
Interesting observation from your January post where you speculated that it might be too late even then for the Court to issue a ruling in the Louisiana/Alabama districting cases that would be early enough to affect the 2026 elections! I don’t recall if you recalled this observation or not after Court beat up on Pursell (sp) to a point beyond recognition now! I never thought of Alito as vengeful before. He was partisan but not vengeful I thought. Now, I think he is vengeful!
Thanks for sharing the excerpt from West Virginia Board of Education v. Barnette. I found myself comparing Justice Jackson's eloquence to the opinions we see today. Not so much eloquence now. I was also struck by seeing the Pledge of Allegiance in paragraph 2 of the syllabus. So very short, and it reads very well without "under God" to modify "one nation."
SCOTUS has been publicly shamed by the sharp Vladeck spotlight, and perhaps the one thing Steve is wrong about is that it can handle the load, and so now it withdraws to chambers to pen some mighty opinions for this year's close.
The quote from Justice Jackson (did you say 83 years ago?) is stunningly beautiful. At first I thought I was reading an opinion from our current justice Jackson., Who is also eloquent. Given that I am not a lawyer and I don’t know all of this history I would love to know more about the context in which justice Jackson was writing. Thank you for your wonderful posts.
I went to the link to see what this case was. Noticed that it occurred before “under God” was added to the pledge. I think the original version was stronger.
It was a case involving students who were Jehovah's Witnesses, and they claimed that their religion prevented them from saluting the Flag, which they viewed as idolatry, akin to worshipping graven images.
Barnette reversed an 8-1 decision from 3 years earlier that had upheld the mandatory flag salutes and recitation of the Pledge (which did not include 'under God' yet), against a challenge by Jehovah Witnesses (Minersville School District v. Gobitis, another misspelling as their last name was 'Gobitas'). Especially after the U.S. entered WWII, the decision was seen to cast JWs as "unpatriotic", and it led to beatings, tar-and-feathering, and at least one house of worship being burned to the ground. Perhaps this backlash led the justices to reconsider just three years later, with two new justices. Three justices switched their votes (Black, Douglas, and Murphy). Frankfurter, who wrote the opinion in Gobitis, complained that he was being reversed 'just' because of the change of opinion...
Another beautiful and famous quote from Jackson from the same opinion:
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
Peter Irons, in "A People's History of the Supreme Court", writes that after the Gobitis decision, in addition to the things you mentioned, the "chief of police and deputy sheriff had forced a group of [Jehovah's] Witnesses to drink large doses of castor oil and had paraded the victims through the streets of Richwood, West Virginia, tied together with police department rope." Also, "a Nebraska Witness was kidnapped, beaten, and castrated by vigilantes."
And we think we live in intolerant times nowadays!
I think very much that the people saying that an execution method is valid and not cruel and unusual punishment should be made to witness the effect. How supposedly-strict-doctrinal Catholics (potentially Opus Dei and pre-Vatican II supporters) can support which their religion teaches them is always unacceptable.
Also, the sheer irony that these methods are untested because research into the methods using animals would be unethical.
That was a eloquent quote of Justice Jackson in his opinion in the 1942 case of West Virginia Board of Education v. Barnette. As an academic exercise, I read the one dissent by Justice Frankfurter, and it was not even in the same league with Jackson. It was a very tedious read, and one can conclude after slogging through it that Frankfurter would likely feel well at home with the likes of Thomas and Alito today. Economy of style or clarity wasn't his strong suit in this dissent, and after all those words used, it is hard to discern what really set him off, other than he thought the Supreme Court was injecting policy views into this decision, and not legal ones. Hmm. He should have looked in the mirror after writing it. Frankfurter's dissent is loaded with policy views.
Frankfurter was reputed to be tedious in person, too, and to lecture his brethren. On the other hand, Frankfurter is probably the only Justice for whom English was a second language, and it shows in his writing.
(Also, Frankfurter was rather bitter that he was being reversed after just 3 years, when he had written for an 8 Justices majority upholding flag salutes in Gobitis)
Thanks for an excellent explication of the 8th Amendment issues — especially how the Reactionary Justices have set up “doctrinal traps.” Why are these Justices making it more difficult for ordinary people to prevail in asserting their constitutional rights? It’s getting to the point where corporations have more rights than people … and “property rights” are protected more than human rights.
Not from the closing, but equally quotable and important (especially against claims of "overwhelming mandates" from an election won with a plurality), is another oft-quoted passage from Jackson's opinion:
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
I am saddened every time I read about the Court parsing the constitutionality of different methods of killing human beings. It strikes me that, at base, the entire discussion belies an admission that there is something inherently and inescapably wrong about taking someone we have locked in a cage and killing them. The search for a "humane" or "painless" way to kill a healthy person says far more about our lack of confidence in the morality of doing so than it does about any care we might have about the suffering of the person being killed. The search for such a method is the search to assuage our own misgivings, to make us feel better.
That's probably true in some cases, but I can imagine someone who sincerely believes in applying the death penalty in the case of a horrific crime to ensure that the person cannot commit such a crime again (otherwise there's always the possibility of a pardon), while also believing that it would be cruel to cause the person sentenced to death unnecessary suffering. That is, I don't see that as a morally inconsistent stance, though I personally oppose the death penalty.
Several readers expressed admiration for Justice Robert Jackson's quote. I also admire it, but it seems that only a small percentage of Americans nowadays share the beliefs he expressed in that quotation. The Trump administration is actively trying to suppress free speech and the free press, and Democrats widely embraced "cancel culture", which is fundamentally contrary to spirit of free speech.
Seems worth flagging that in your last sentence, the first actor is the government, which *is* subject to the First Amendment; and the second actor is private individuals, who are not.
That's a valid point, but it's why I referred to "the spirit of free speech" instead of the First Amendment. My view is that someone who truly supports the principles underlying the First Amendment should oppose suppression of speech even when it's done by authorities in academia or the corporate world. I don't object to content-neutral speech restrictions in the private world, but few attempts to suppress speech these days are content-neutral. FIRE (thefire.org) has documented the hostility to free speech on academic campuses, from both the right the and the left.
It seems clear to me, from surveys I've seen and personal conversations over the years, that liberals have become much more censorious over time. I find that very disturbing, especially because Republicans under Trump are actively hostile to free speech and a free press (not to mention civil rights in general).
I complain about liberals in this respect not because I support conservatives (far from it, and I never have), but because I've personally witnessed the changes I mentioned above and consider them a threat to our democracy, though I realize that the Trump administration is the greatest immediate threat.
Thank you!
My first thought with respect to Abouammo was the "investigation" of trans-care hospitals in Maryland, New York, California, out of the North District of Texas. I thought it's a good reminder that any cases brought will not be in the NDT.
Steve:
Thanks.
Two other questions.
First, is it incorrect to think that a silent (no opinion) order denying relief relies on the ruling of the last lower court to rule as sufficient such as to render unnecessary any further attention from the Court?
Second, given the nation’s celebration of its 250th birthday, should we be concerned that the remaining cases of real importance will be announced in a way that manipulates the timing for politically symbolic purposes?
To the first, I think that's *often* true, but not necessarily so.
To the second, no; although I think there are times when the Court *does* move a bit strategically, I think this is just hard and divisive cases taking a long time to resolve:
https://www.stevevladeck.com/p/202-the-timing-of-rulings-in-argued
Interesting observation from your January post where you speculated that it might be too late even then for the Court to issue a ruling in the Louisiana/Alabama districting cases that would be early enough to affect the 2026 elections! I don’t recall if you recalled this observation or not after Court beat up on Pursell (sp) to a point beyond recognition now! I never thought of Alito as vengeful before. He was partisan but not vengeful I thought. Now, I think he is vengeful!
Thanks for the reference to January posting.
Thanks for sharing the excerpt from West Virginia Board of Education v. Barnette. I found myself comparing Justice Jackson's eloquence to the opinions we see today. Not so much eloquence now. I was also struck by seeing the Pledge of Allegiance in paragraph 2 of the syllabus. So very short, and it reads very well without "under God" to modify "one nation."
SCOTUS has been publicly shamed by the sharp Vladeck spotlight, and perhaps the one thing Steve is wrong about is that it can handle the load, and so now it withdraws to chambers to pen some mighty opinions for this year's close.
"why the lack of any explanation for that outcome is, yet again, a pretty big problem"
On the shadow docket. Still a thing, Mr. Baude.
The quote from Justice Jackson (did you say 83 years ago?) is stunningly beautiful. At first I thought I was reading an opinion from our current justice Jackson., Who is also eloquent. Given that I am not a lawyer and I don’t know all of this history I would love to know more about the context in which justice Jackson was writing. Thank you for your wonderful posts.
I went to the link to see what this case was. Noticed that it occurred before “under God” was added to the pledge. I think the original version was stronger.
Ike added "Under God" during the Cold War, contrasting us with the Godless Communists.
See also my earlier post about the case:
https://www.stevevladeck.com/p/126-the-fixed-star-in-our-constitutional
I'd prefer that they also drop "to the flag of the United States of America and"; it's not even logical.
It was a case involving students who were Jehovah's Witnesses, and they claimed that their religion prevented them from saluting the Flag, which they viewed as idolatry, akin to worshipping graven images.
Barnette reversed an 8-1 decision from 3 years earlier that had upheld the mandatory flag salutes and recitation of the Pledge (which did not include 'under God' yet), against a challenge by Jehovah Witnesses (Minersville School District v. Gobitis, another misspelling as their last name was 'Gobitas'). Especially after the U.S. entered WWII, the decision was seen to cast JWs as "unpatriotic", and it led to beatings, tar-and-feathering, and at least one house of worship being burned to the ground. Perhaps this backlash led the justices to reconsider just three years later, with two new justices. Three justices switched their votes (Black, Douglas, and Murphy). Frankfurter, who wrote the opinion in Gobitis, complained that he was being reversed 'just' because of the change of opinion...
Another beautiful and famous quote from Jackson from the same opinion:
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
Peter Irons, in "A People's History of the Supreme Court", writes that after the Gobitis decision, in addition to the things you mentioned, the "chief of police and deputy sheriff had forced a group of [Jehovah's] Witnesses to drink large doses of castor oil and had paraded the victims through the streets of Richwood, West Virginia, tied together with police department rope." Also, "a Nebraska Witness was kidnapped, beaten, and castrated by vigilantes."
And we think we live in intolerant times nowadays!
Oh my God! Horrifying! How courageous the Witnesses must have been to defy that "mysticism" Jackson referred to!
The Secretary of Defense could certainly benefit from a reading of the Barnette case. Thanks for a reading that actually is appropriate for Flag Day.
I think very much that the people saying that an execution method is valid and not cruel and unusual punishment should be made to witness the effect. How supposedly-strict-doctrinal Catholics (potentially Opus Dei and pre-Vatican II supporters) can support which their religion teaches them is always unacceptable.
Also, the sheer irony that these methods are untested because research into the methods using animals would be unethical.
That was a eloquent quote of Justice Jackson in his opinion in the 1942 case of West Virginia Board of Education v. Barnette. As an academic exercise, I read the one dissent by Justice Frankfurter, and it was not even in the same league with Jackson. It was a very tedious read, and one can conclude after slogging through it that Frankfurter would likely feel well at home with the likes of Thomas and Alito today. Economy of style or clarity wasn't his strong suit in this dissent, and after all those words used, it is hard to discern what really set him off, other than he thought the Supreme Court was injecting policy views into this decision, and not legal ones. Hmm. He should have looked in the mirror after writing it. Frankfurter's dissent is loaded with policy views.
Frankfurter was reputed to be tedious in person, too, and to lecture his brethren. On the other hand, Frankfurter is probably the only Justice for whom English was a second language, and it shows in his writing.
(Also, Frankfurter was rather bitter that he was being reversed after just 3 years, when he had written for an 8 Justices majority upholding flag salutes in Gobitis)
Thanks for an excellent explication of the 8th Amendment issues — especially how the Reactionary Justices have set up “doctrinal traps.” Why are these Justices making it more difficult for ordinary people to prevail in asserting their constitutional rights? It’s getting to the point where corporations have more rights than people … and “property rights” are protected more than human rights.
Nice shout out to superstar research assistants!
They are the best!!
Not from the closing, but equally quotable and important (especially against claims of "overwhelming mandates" from an election won with a plurality), is another oft-quoted passage from Jackson's opinion:
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
I am saddened every time I read about the Court parsing the constitutionality of different methods of killing human beings. It strikes me that, at base, the entire discussion belies an admission that there is something inherently and inescapably wrong about taking someone we have locked in a cage and killing them. The search for a "humane" or "painless" way to kill a healthy person says far more about our lack of confidence in the morality of doing so than it does about any care we might have about the suffering of the person being killed. The search for such a method is the search to assuage our own misgivings, to make us feel better.
That's probably true in some cases, but I can imagine someone who sincerely believes in applying the death penalty in the case of a horrific crime to ensure that the person cannot commit such a crime again (otherwise there's always the possibility of a pardon), while also believing that it would be cruel to cause the person sentenced to death unnecessary suffering. That is, I don't see that as a morally inconsistent stance, though I personally oppose the death penalty.
Several readers expressed admiration for Justice Robert Jackson's quote. I also admire it, but it seems that only a small percentage of Americans nowadays share the beliefs he expressed in that quotation. The Trump administration is actively trying to suppress free speech and the free press, and Democrats widely embraced "cancel culture", which is fundamentally contrary to spirit of free speech.
Seems worth flagging that in your last sentence, the first actor is the government, which *is* subject to the First Amendment; and the second actor is private individuals, who are not.
That's a valid point, but it's why I referred to "the spirit of free speech" instead of the First Amendment. My view is that someone who truly supports the principles underlying the First Amendment should oppose suppression of speech even when it's done by authorities in academia or the corporate world. I don't object to content-neutral speech restrictions in the private world, but few attempts to suppress speech these days are content-neutral. FIRE (thefire.org) has documented the hostility to free speech on academic campuses, from both the right the and the left.
It seems clear to me, from surveys I've seen and personal conversations over the years, that liberals have become much more censorious over time. I find that very disturbing, especially because Republicans under Trump are actively hostile to free speech and a free press (not to mention civil rights in general).
I complain about liberals in this respect not because I support conservatives (far from it, and I never have), but because I've personally witnessed the changes I mentioned above and consider them a threat to our democracy, though I realize that the Trump administration is the greatest immediate threat.
For a humorous reason for "why Fed Courts matter" look at the Brendan Sorsby Texas Tech saga. Some potential spillover to Paxton's Senate race too.