The final cases of the term today:
Glossip v Gross, the Oklahoma lethal injection case, 5-4 with Alito writing the decision for Kennedy and the conservatives, saying that the drug midazolam, which Oklahoma uses to put death row inmates into a coma state before lethal injection, does not violate the Eighth Amendment on cruel and unusual punishment. SCOTUS ruled in a previous case that pentobarbital or sodium thiopental are no longer available for that purpose, the plaintiffs in the case argued that midazolam wasn’t as effective and the court basically rejected that argument.
Breyer and Ginsburg apparently asked for a ruling on the constitutionality of the death penalty itself, not enough votes to take that up. Blistering dissents from Sotomayor and Breyer on this one.
Arizona redistricting case, 5-4, Ginsburg’s opinion, joined by Kennedy and the liberals, holds that Arizona’s commission for redistricting created by a state referendum is valid, and that Arizona’s legislature does have standing to sue but that the case was rejected on the merits, upholding a lower court decision.
Multiple dissents by the conservative justices. Â California has a similar commission, and the question was if only the legislature could redistrict based on the Elections Clause of the Constitution, which says “Times, Places, and Manner of holding Elections for […] Representatives, shall be prescribed in each state by the Legislature thereof.”
Michigan v EPA case, 5-4 with Scalia writing the opinion, Kennedy joining the conservatives. Â The EPA must take costs into account before deciding what regulations are necessary, but it is up to the agency to make that decision. However that effectively means the EPA has to justify the cost of President Obama’s EPA power plant rules, which the industry says will cost tens of billions of something ridiculous. Â It effectively means the power plant regulations have to be 100% rewritten. Â Whether or not that will happen before the end of this administration, who knows.
That’s all, folks.
MomSense
Ugh. I was really hoping this would have gone the other way.
Omnes Omnibus
It is appears to be a fairly narrow ruling though. They did not hold that the drug is okay. They held that the district judge did not commit clear error when he found that the prisoner had not shown that the drug does cause pain.
Zandar
@Omnes Omnibus: Very true, and Breyer and Ginsburg wanted a far, far broader ruling.
Zandar
By the way, pretty much everybody is reading their opinions from the bench, so this is taking some time before we get to the other two decisions.
Elizabelle
I think the death penalty is going to go away, in all but Texas and Oklahoma and a few other backward (politically) states over the next decade.
Nebraska is showing the way.
peach flavored shampoo
To all the lawyers — are the tone of these (meaning, this term) dissents more caustic and vitriolic than normal, or is what Scalia and Roberts and now Sotomayor spewing considered the norm? I dont remember dissents being this passionate/vehement in the past, but I’m not a lawyer and I dont read them all.
IOW, has the polarization of America seeped into SCOTUS enough to explain these rants, or have these always been the M.O. of the losing side?
JPL
@Omnes Omnibus: This statement doesn’t sound so narrow…
And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. After all, while most humans wish to die a painless
death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.
burnspbesq
RBG has the AZ redistricting case.
JPL
@burnspbesq: Kennedy joined the majority.
burnspbesq
AZ use of an independent commission to do Congressional redistricting is kosher.
Elizabelle
@burnspbesq: Ohhhh! Please! That’s the big one. Go RBG.
Omnes Omnibus
AZ result is good.
D58826
Well at least they didn’t approve of burning at the stake:-)
Elizabelle
Redistricting commissions is how we eventually get rid of the death penalty and even take on guns.
Thank DOG!!! Get it away from the legislators.
burnspbesq
Did i miss it, or has there been no disposition yet of the motion for a stay in the TX abortion case?
Omnes Omnibus
@JPL: But that was not the Court’s holding in the case.
burnspbesq
I’m pretty happy about this, as we use a commission in CA and it seems to work well.
JPL
@Omnes Omnibus: In future cases can they cite from the majority opinion?
mai naem mobile
Very very happy about.the AZ redistricting case. We would have very possibly lost 2 to 3 Dem seats. Awesome.
Roger Moore
@burnspbesq:
Thank FSM they got that one right. That also gives me some hope on the other redistricting case, Evenwel v. Abbot, about whether districts should have approximately equal total population or approximately equal numbers of voters.
Elizabelle
@burnspbesq: Yeah. I really like California’s lead on that issue. Take it nationwide.
Suzanne
Ugh, a mixed result. Happy about the AZ redistricting, as they are all that stands between us and the abyss at times. AZ has a majority D congressional delegation for this reason. Sad about the death penalty case.
Omnes Omnibus
@JPL: Of course they can.
OzarkHillbilly
@D58826: Only because that question wasn’t before them.
burnspbesq
Fuck. Scalia has Utility Air.
KG
@peach flavored shampoo: not necessarily normal but also not uncommon for big cases. There have been chief justices over the years that always tried to get the big cases to be unanimous but that hasn’t always worked out well.
burnspbesq
But it’s not a complete disaster.
burnspbesq
Back to the drawing board for the EPA.
JPL
@Omnes Omnibus: ha .. What’s a little pain.
This is from Scotusblog
From the final paragraph of the majority opinion: “The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have âan habitual recollection of their dependence on the people.â The Federalist No. 57, at 350 (J. Madison). In so acting, Arizona voters sought to restore âthe core principle of republican government,â namely, âthat the voters should choose their representaÂtives, not the other way around.â Berman, Managing Gerrymandering, 83 Texas L. Rev. 781 (2005). The ElecÂtions Clause does not hinder that endeavor.”
Dave C
@burnspbesq:
Correct me if I’m wrong, but wasn’t there a lot of skepticism from traditional Democratic groups when the independent commission issue was being debated?
JPL
fk
burnspbesq
Take cost into consideration in deciding what the rules should be. Write a preamble to the regs that shows how thoroughly you took cost into consideration, in enough detail to satisfy the State Farm “hard look” standard, and you should be good to go.
Omnes Omnibus
@JPL: The reason it is a narrow ruling is that the question of the the use of drug wasn’t squarely in front of the Court. Because of the way the case came up procedurally, the issue isn’t settled. I would write more, but I am already running very late because sitting and waiting for these decisions.
burnspbesq
@Dave C:
There was, but i think it turned out satisfactoruily. The CA delegation is something like 35-18 Dem, and some formerly impregnable R districts are more competitive than they used to be.
debbie
@JPL:
I love this: “habitual recollection of their dependence on the people.” Not money, people.
mai naem mobile
EPA.administrator MCcarthy said that.most utilities had already started doing the upgrades but I’m guessing it affects other stuff the EPA regulates.
Elizabelle
@burnspbesq: They had to give Scalia something as a consolation prize.
I am going to be happy about Obamacare, and equality of marriage, and redistricting.
The rest: back to the drawing board. Issues will come up again. Maybe even with a better Supreme Court.
burnspbesq
And that’s it for the 2014-15 term.
Elizabelle
OT: Krugman today: vote no, Greece.
Greece Over the Brink
JPL
@Omnes Omnibus: Thanks.
Dave C
@burnspbesq:
Okay, thanks. Wanted to make sure I wasn’t misremembering. I’m glad it has worked out well!
burnspbesq
If you had told me before last Thursday that the good guys were going to 5-for-7 in the ninth inning, i would have asked for a drug test. On balance, the end of this term was pretty damn good.
MomSense
@burnspbesq:
Will health care costs be included in the cost considerations of regulation??
burnspbesq
One more list of orders coming out tomorrow.
burnspbesq
@MomSense:
I doubt it–at least not by the EPA in deciding what power plants have to do to reduce greenhouse gas emissions. Are they material in that context?
burnspbesq
Fingers crossed that there will be a stay of the Fifth Circuit decision in the TX abortion case entered tomorrow.
Frankensteinbeck
@peach flavored shampoo:
I was so curious about Scalia’s rants that I looked this up. Strongly worded, emotional, and sometimes jokingly written opinions are pretty common. Scalia’s dissents are becoming a joke because they’re so much vitriol, the substance is so shallow, they’re blatantly hypocritical, and the insults he flings are often copied from right wing web sites.
D58826
Doesn’t this put the cart before the horse? So the EPA decides that power plant emissions should be reduced. Under this decision they have to arrive at a cost basis before writing the rules. Since there are probably a number of ways that the regulations can be written and therefore a number of different costs associated with those rules it looks like its an open invitation of the industry to file suit time after time. The industry will always pick the MOST expensive option to argue that the EPA is out of control. The idea that the rule making process might result in less expensive alternatives seems to gotten lost in the shuffle.
Of course with a protect the corporations SCOTUS what else can you expect.,
trollhattan
The power plant ruling is not good news. They’ve successfully delayed replacement of obsolete plants going back to Reagan, and Dubya wrecked havoc as well.
Coal’s War on America.
Botsplainer
Pace on youngest daughter’s personal Grexit seems to want to speed up; sadly, circumstances on the ground are driving circumstances. Basically, she can’t get out until her original departure date of a week from tomorrow (for some reason I had it in my head as her coming back Sunday, but as Mrs Botsplainer frequently laments, I never listen).
Anyway, she and her supervising prof are now carefully hoarding their remaining Euros, probably meaning no delightful jars of Kalamata or Royal Green olives or Ouzo for me.
mainmata
@burnspbesq: EPA (and other agencies) have had to estimate the cost of their regulations (cost-benefit analysis) plus some risk analysis since at least the Reagan Administration. I haven’t read this decision but the quick summary sounds like they are saying the C/B analysis has to be applied to CO2 (and other emissions) from power plants. Climate scientists are already doing this though there is inevitably some disagreement about how damages and costs are estimated and discounted over time. The real problem is that there is no Kentucky atmosphere or US atmosphere there is only the global atmosphere.
Face
@burnspbesq: Help us out, Burnsie. IAN(even close to being)AL, so on a scale of 1-10, with 10 being the shittiest ruling possible, what’s this EPA ruling, realistically, in your opinion?
mainmata
@MomSense: Probably not directly. There are definite healthcare costs to increased GHG emissions (setting aside air pollution, particulates, etc., which are already regulated). Increased GHG emissions leads to warmer average temperatures, which affects rainfall and hence water supply (hello western US), which has a direct, long-term health impact and also changes the spread of disease vectors that are temperature-sensitive, e.g. malaria or dengue. These are just immediate examples but because they are due to global warming in general, tying them directly to US power plants would be more difficult.
Brachiator
@D58826:
Actually, this prospect was raised during the arguments:
burnspbesq
@Face:
I’d say six. The EPA gets to go back to the drawing board and fix what the Court found objectionable, but whatever they come back with will be challenged again, so power plant emissions regulation will likely be back at the Supreme Court in 2-3 years. Meanwhile the problem continues to fester.
raven
Hahaha Hermann Cain wants to know what the Q in LBQT stands for!!!!
trollhattan
@mainmata:
Important to add electricity generation and transportation are co-keystones of GHG generation and delaying dealing with either utterly cripples the effort. This shifts control back to congress,and we all know how that will turn out.
trollhattan
@raven:
He’s just afraid they’ll make him spell Quetzalcoatl.
opiejeanne
@Brachiator: why don’t we just give them a lethal dose of morphine?
piratedan
@Suzanne: Agreed, the AZ ruling is a BFD. All the voters asked for was a fair drawing of the Congressional districts. Sounds simple but our folks over at the GOP wouldn’t have it because… well because.
OzarkHillbilly
@raven: I’m not laughing. I’d kinda like to know too just out of curiosity. Hadn’t heard it until just recently.
Poopyman
@opiejeanne: Pure heroin seems to do the trick quite nicely.
ruemara
@raven: Q = questioning why Hermann Cain is a thing.
Bobby Thomson
Next term will see the final nail in the coffin of affirmative action. (Barring replacement of one of the conservative 5.)
opiejeanne
@OzarkHillbilly: pretty sure it’s Lesbian Bi Queer Trans.
Brachiator
@opiejeanne:
This Goldilocks and the Three Bears approach to lethal injection drugs, trying to get a dose “just right,” is insane.
Here, I wish the Court would follow the lead of Justice Harry Blackmun, who gave up trying to find a “rational way” of applying the death penalty:
However, aren’t the drugs used or proposed for assisted suicide supposed to be relatively painless?
Origuy
@Botsplainer: Someone on Twitter reports that an ATM at Pireus Bank gave him 20 euros on his American bank card, but wouldn’t dispense to Greeks at all.
rikyrah
Nothing like a good killing for this SCOTUS.
sigh….
ugh….
Iowa Old Lady
@Origuy: I read that cards issued outside of Greece would have looser restrictions on them because it would not help matters to kill tourism. The thing saw said that once they got up and running today, there’d be a limit for Greeks but the limit wouldn’t apply to outsiders. Things are changing pretty quickly though, so who knows.
Comrade Dread
I still say we should do away with lethal injection altogether.
If society wants to kill someone, it should have the balls not to hide the process away and sanitize it. Drag the prisoner out to the prison courtyard and put two into the back of their head and do it in front of the media.
Let’s stop pretending we’re civilized.
Iowa Old Lady
@piratedan: I’m glad over that one. Iowa uses an independent commission too, with rules like they have to follow country lines, so it would have affected us.
OzarkHillbilly
@opiejeanne: I always read/saw/heard LGBT- Lesbian Gay Bisexual Transgender. Recently some added a Q at the end, which if it is ‘Queer’ is kind of redundant, isn’t it?
khead
Great. Now I have to listen to the “War on Coal” bullshit at full throttle today.
tam1MI
@Origuy: According to the news reports, people with accounts at foreign banks can get money, but those with accounts at Greek banks can’t.
OzarkHillbilly
@Comrade Dread: That also has the benefit of being fairly painless.
ruemara
@OzarkHillbilly: Questioning. It means questioning.
catclub
@Botsplainer:
well, the news SAID that if you have a foreign bank credit card, payments and withdrawals will not be limited. But I understand your concern.
Suzanne
@OzarkHillbilly: I use “LGBTQI”, but I have also seen “QUILTBAG”, which I love for its acronym-iness.
catclub
@Comrade Dread: How about Nitrous oxide until unconscious, then reduce oxygen to zero?
Not your idea, but why don’t they do this? any dentist (or street tuner) can get Nitrous
sharl
@Frankensteinbeck: A private practice defense lawyer in NC who goes by kept_simple on Twitter (the background image there cracks me up every time) wrote about Scalia’s frequently emotional dissents: Scalia Is a Twitter Egg
Anyone who has been on twitter for awhile knows immediately what is meant by the term “twitter egg”, but the author explains it at the link (think recent B-J troll “A Guy” with a twitter account…).
OzarkHillbilly
@ruemara: Thank you, I could ask “questioning what?” but I think I know and besides, I really don’t care. A persons sexuality is their business and means nothing at all to me. That’s why I can’t even begin to get into all the cis stuff. At my age, I just don’t need to know.
Face
Wow, the Usual Suspect Southern States are really going out of their way to publicize their bigotry and intolerance.
I’ve seen 3 year olds who dont act this immaturely when they dont get their way.
cahuenga
Anyone know whether the EPA is allowed to balance cost with externalities?
shell
So, now the SCOTUS disbands and disappears to….where? It’s a mystery. I suspect it’s not like the idea for that TV show at the end of ‘A Mighty Wind.’ where they all get together and play folk music.
Poopyman
@shell: Well, you won’t hear “Kumbaya”.
I suspect they all go off to await further instructions from Pope Ratz… uh-oh.
Comrade Dread
@OzarkHillbilly: Just give the prisoner a Xanax or a bottle of whiskey with his last meal and it would probably be completely painless and less stressful too.
Itâs just way too visceral and personal for our society that likes to pretend weâre noble and civilized and dispassionate in the way we commit murder.
@shell: I can’t imagine any of the other justices want to spend a second longer with Scalia than they have to.
piratedan
@Iowa Old Lady: it shows that if citizens do it the right way, you can actually have the gerrymander taken out of hands of the political parties and tbh, I think that simply makes sense. I hate seeing the game rigged, for either party.
Jack the Second
It must rock to be Kennedy.
Roger Moore
@catclub:
IIRC, Oklahoma is talking about using pure nitrogen as an execution method, since it’s well known to cause painless death by oxygen deprivation. This is part of the reason I think it’s important to have more avenues of challenge to the death penalty than just cruel and unusual punishment. Killing people is wrong even if the method we use is quick and painless, so we need to challenge the whole principle rather than just the methods.
Roger Moore
@Face:
It’s exactly the same line of thinking that led places to shut down public schools after Brown v. Board of Education. They’d rather do without than have to share with Those People.
opiejeanne
@OzarkHillbilly: when I looked at the site I found first the terms seemed to be defined as female, queer/female was one of them.
The Q seems to replace the G.
Brachiator
A case the Court did not rule on will come back in the future:
Maybe the cops aren’t the best group to use when dealing with mentally ill people. Maybe more training is necessary. Some background:
https://www.aclu.org/blog/speak-freely/supreme-court-leaves-americans-disabilities-act-intact
Doug R
@burnspbesq: Yeah, they’ve probably got a few clauses ready to insert and delete ready for just this eventuality.
Belafon
@Face: I don’t quite know what’s going on in the other states, but here in Texas, all the large metropolitan areas are issuing licenses. His statement is allowing a few to get away with it, but gay marriage is going on throughout the state.
Frankensteinbeck
@OzarkHillbilly:
I suspect it’s for ‘genderqueer’. The whole ‘you’re male or female’ thing leaves out a lot of people. I know some of them. Gender is at least as complicated as sexual orientation, which is vastly more complicated than most people think.
D58826
@burnspbesq: Sounds like a receipt for never ending litigation. Which follows the Roberts pattern of being pro-corporation and leaving a law in place but adding procedural roadblocks that make it imppossible to enforce.
opiejeanne
@Frankensteinbeck: I can’t wrap my head around your statement, but I’m not disputing it. I’m just old I guess, and LGBT covers it in my mind.
Lurking Canadian
@Poopyman: as I understand it, massive doses of opiates would work if the objective was “make it painless”. The prisoner might actually enjoy it.
However, it doesn’t look peaceful because it involves a certain amount of thrashing about and gasping for breath. The patient’s too far gone to care, but the people watching would feel uncomfortable.
gene108
@D58826:
I seem to remember “cost-basis” being a basis for EPA decisions as common practice in Republican Presidential administrations, i.e. part of the merit of taking action to protect the environment has to be viewed on how it will impact the company involved or the economy.
http://www.c2es.org/federal/executive/george-w-bush-climate-change-strategy
GWB set back efforts to combat global warming by a generation, at least.
Emerald
@Frankensteinbeck: The “Q” in LBGTQ stands for “questioning.”
Peale
@opiejeanne: Yeah. It’s not the worst question, so I’ll give him a pass on that. 1/2 of us think it is “Queer” and the queer activists agree. The other 1/2 think its “Questioning”, which is kind of queer and no labels at the same time rolled into one, but no one is certain which group has banded together to support that. Our independent naming commission hasn’t been tested by the courts, so apparently anyone who wants to can define the letter.
Peale
@shell: I’m assuming that a few of the justices will be officiating at weddings. Scalia I have heard plans to “not gay marry” as many heterosexuals as he can find this summer whether they ask him to or not.
D58826
@gene108: The point I was tryingf to make was this decision requires that the EPA do a cost/benefits analysis before they have even gathered all of the relevant risk factors and possible solutions. Heck just knowing that the EPA is going to issue regulations might encourage the next Steve Jobs to invent a better and cheaper way to achieve the desired results
fuckwit
@gene108: Meh, that generation started with Saint Ronnie, who stated that trees cause pollution.
Ruckus
@Lurking Canadian:
Can’t have people being uncomfortable about killing someone.
jl
More decisions that IANAL me would like to read when I have time, and enough good commentaries come out so that I can learn up on the technicalities.
Questions for any of BJ legal team, if they find them interesting:
Going by what I have read of the dissents, and memory of oral arguments on death penalty case, seem like too much emphasis on ‘cruel’ and not enough on ‘unusual’. I am of school that thinks constitutions are carefully written and that qualifying words and phrases are put for a reason (edit: while textualist and original intenters, at least from 2nd amendment cases, oddly seem more willing to blow them off as ‘throat clearing’). So, seems to me that we are being forced by social convention to resort to ever more unusual procedures to implement death penalty. I notice that some dissents are nattering over those meany private companies that won’t sell drugs anymore that would make death penalty by lethal injection easier. Why is that at all a relevant argument, or an argument at all, rather than just whining? if there is a compelling social interest in death penalty, shouldn’t judges who area whining recommend legal recourse for obtaining the drugs somehow, regardless of what the mean private companies want to do?
Surprisingly I have concerns about the decision on redistricting. In the short run I like the result. But seems to me that the issue has to rest, legally, on the delegation powers of the legislature. Can argue that legislature delegated authority to people when allowed initiative/referendum process. And Madison’s idea about people taking power from corrupt legislature is relevant. But direct democratic decisions can be corrupted just like legislature. If that happens, does legislature have recourse to get power back? That seems an important issue to me.
Professionally I have most interest in EPA ruling since I R economist, but the legal and admin law technicalities are beyond me. Anyone have link to good primer and commentary, I will gladly read it.
D58826
Scalia is truly a work of pornographic art. On Thur. he said Obamacare subsidies were illegal because of the literal reading of 4 words. Today he invalidates the EPA air pollution rules because the phrase ‘appropriate and necessary’ must be INTERPRETED to include consideration of costs. Never mind what Congress meant when the law was passed. I’m surprised that Scalia can actually walk in a straight line given how quickly he twists and turns
jl
@D58826: IANAL, but from what I have read of the commentaries, and excerpts from the reactionary dissents, these guys are just BSing now on a regular basis.
jl
And I think the BSing by the reactionaries has real and dangerous consequences. An example is the hash of religious liberty they have made through a series of bizarrely inconsistent decisions that follow partisan political, or current drug policy, prejudices more than anything else.
Now reactionaries are claiming their religious liberty is infringed by merely having to abide by legal civil contracts in civil matters wrt to marriage in any way at all.
I am going to start a new Christian sect that puts great emphasis on evil of charging interest on debt. I will be able to clear up my credit card balance with much less pain, though that of course does not mean anything at all to me. My deepest religious principles are being violated.
swbarnes2
@Suzanne: I think part of the point of that acronym is that if you keep having to add more and more letters to classify everyone, putting everyone in a label is likely a hopeless endevor, so you should just stop, and not worry about labels.
julia
LGBTQ= lesbian, gay, bisexual, transgender, questioning. Some want to add an “I” for intersex.
The acronym would then be LGBTIQ. (via Wikipedia)