The Supreme Court cleared the way for Alabama to execute Allen Miller, the 1999 workplace rampage perpetrated by an African black man and a black man

Yet that role — bystander — is exactly the one Mr. Biden seems to have assigned himself when it comes to the Supreme Court, which is posing a more profound challenge to the American system of self-government than any violent mob has managed. Conservative justices have ruled that it is more difficult for citizens of color to vote, that it is easier for partisans to make decisions and that it is almost impossible to counter the influence of money. This is only a partial list — and is, most likely, only the beginning. The conservative bloc, which is strong and feeling its oats, will decide in October whether an Alabama congressional map discriminates against Black voters and whether state legislatures should have a free hand in setting rules.

Last week, the Supreme Court cleared the way for Alabama to execute Alan Miller, who killed three men 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. 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.

Since the beginning of last year, the justices have granted a state an emergency request three times to allow an Execution that had been blocked by lower courts.

The Miller case highlights the costs of the justices’ refusal to explain themselves. Miller said that he wanted to be executed via nitrogen hypoxia, something he was allowed to do under Alabama law.

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 previous term, 20 of the 24 grants of emergency relief came with no opinion.

The state claimed that it did not have a record of receiving the form which allowed it to use its lethal injection protocol. 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.

A trial court’s finding that it was clearly incorrect can be overturned if an appeal court concludes that it was wrong. The idea is that the trial court is entitled to 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 that people think the justices leave when lower courts explain and defend their rulings, and that the court ignores them. The court at least appears to be acting for political reasons rather than legal ones.

Nearly two years earlier, Alito had written in a Pennsylvania ballot dispute: “The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”

There is no serious argument to be made that the Supreme Court should be required to explain all its actions. The justices receive more than 5,000 appeals every year and quite obviously can’t provide a detailed explanation of their decision not to take up most of those cases. One might argue that it’s unfair to deny an emergency relief request if the justices are going to allow a death row prisoner to be put to death.

The High Court: What’s next? A Brief Review of the First Three Years of Justice Scalia’s Reconciling

Jackson has joined a hot bench but when Scalia came on, Justice Lewis Powell wondered if he knew the rest of us were here.

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.

In June of this year, Jackson assumed her position on the nation’s high court and was able to begin reviewing cases for the 2022-23 session.

The three prior appointees – Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch – were seated as cases were already underway and had little time before facing difficult votes. After oral arguments had begun in October of 2020 and again in October of 2018, both nominees were confirmed.

“I do think it takes three to five years,” Stephen Breyer, whom Jackson succeeded, said in a CNN interview last year. “Justice (William O.) Douglas said three years, (David) Souter thinks 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 look at the bigger picture of the institution.

It is difficult to know, more broadly, how Jackson may interact with fellow colleagues, beyond the geniality she showed at the Senate confirmation hearings last spring. She was a judge in the federal trial court in Washington, DC. Her few months on the US appeals court for the DC Circuit, hearing cases in three-judge panels, did not test her as dealing with eight colleagues on all cases will.

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 reconvening of a reconstituted court after the most tumultuous term in decades contained the reversal of a half-century of abortion rights was made more interesting by the new jockeying.

The public is increasingly skeptical of the court’s power and influence because the conservative majority has gone far past where the public is. A recent Gallup poll shows that a startlingly low number of Americans trust the judicial branch of the federal government and that they’re not all that fond of the Supreme Court. Forty percent of Americans believe that the court is too conservative, but 38 percent think the court is right in its ideological leaning.

She is similar to two of her Justices who referred last year to the “stench” of politics permeating the court.

The Cert Pool: Justices Who Joined the Pool During the 1980s and 1990s, or How Justices Survived Trial Arbitration

At the outset, one of the most daunting tasks involves the screening of the hundreds of appeals (known as petitions for certiorari) received each week 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. Courts that have issued conflicting decisions or cases that test the power of the federal government are what justices look for.

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.

Kagan, who had not been a judge on any bench before her 2010 appointment, succeeding Stevens, described recently, at a judicial conference in Big Sky, Montana, enlisting three clerks with prior experience, from the chambers of Ginsburg, Breyer and now-retired Justice Anthony Kennedy. She said she depended on them – up to a point.

The Seniority of the Supreme Court: a Delicate Dynamic among the Nine in Extracurricular Matters, when a Justice is on the Bench

She would inevitably get three completely different opinions when making a decision about an internal procedure. I would say to them, “Why don’t we do that one?” Sometimes I wanted to do something a certain way, and sometimes I wanted to do it that way. I think it is the worst way of doing things.

There is seniority at the Supreme Court. The justices in their private conferences sit in an oak paneled room next to Roberts’ chambers and listen as they offer their views of cases and cast votes.

Jackson has to take notes of the proceedings and she also speaks ninth. There is no one other than the nine who is allowed in these sessions. If someone comes to the door and says he wants to deliver a book, document, or forgotten pair of reading glasses, it falls to Jackson.

She will take the freshman seat at the end of the bench, at the far left side of the court, next to the chief justice, when her first session of oral arguments takes place on Monday. Barrett will now be on Roberts’ far right. (The justices sit at the mahogany bench in alternating order of seniority: the more tenure, the closer to the chief justice, in the center chair, a justice moves.)

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 told C-SPAN in 2009 that there can besettling when a new justice comes onto the court, and in 2017 they got into a fight over his decision to skip a private justices’ meeting.

Alito had trouble with his microphone in front of him at times, such as 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 is kind of awkward. Alito used to lean in close to the bench. He now sits back a bit.

The First Lady Whose Private Quarters? Justice Kagan and Chief Justice John Roberts revisited after the Roe Reversal

After the first woman justice joined the bench, she inadvertently irritated Justice Harry Blackmun by staying in 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.

Breyer happened to succeed Blackmun in 1994. Asked this week whether his predecessor had any advice at the time, Breyer responded: “Justice Blackmun told me: “You’ll find this an unusual assignment.’”

She cautioned that her comments weren’t pointed to any one decision or series of decisions. But she reiterated that, in general, judges should abide by precedent – echoing sentiments the liberal justices made in a fiery joint dissent after the court reversed Roe last term, a landmark opinion that had been on the books for almost 50 years.

Justice Elena Kagan in several appearances did talk about the court’s legitimacy, and Chief Justice John Roberts seemed to push back on her comments without mentioning her by name during a talk earlier this month.

When courts become extensions of the political process, people see them as trying to impose personal preferences on a society regardless of the law, that’s what Justice Elena Kagan said in a talk this month.

She added that when they stray into places where they are imposing their own personal preferences then it looks like they are extensions of the political process.

Roberts said that it’s the court’s job to interpret the Constitution – a task that should not be left to the political branches or driven by public opinion.

The nine justices will meet behind closed doors on Wednesday to prepare for the new term to begin on Monday.

Predicting the Supreme Court’s Failure to Overturn a Right-Wing Amendment in Texas and Dobbs v. Jackson Women’s Health Organization

In a recent speech at Independence Hall, President Biden called on Americans to stand against an assault on democracy — the ongoing assault waged by insurrectionists and would-be patriots, by election deniers and other extremists. He said that they were not powerless in the face of the threats. “We are not bystanders.”

Skepticism for state courts in federal elections has been there for a while. Their legal theory was influenced by a 2000 opinion by Chief Justice Rehnquist in the Bush v. Gore case. (Rehnquist was appointed to the bench by President Richard Nixon in 1972 and then elevated to chief justice by President Ronald Reagan in 1986. When he died in 2005, he was succeeded by Roberts.)

This misuse of the court’s power is demonstrated by the way it went about eliminating 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 separate challenge out of Mississippi, Dobbs v. Jackson Women’s Health Organization, that didn’t formally ask them to overturn Roe v. Wade. When they chose to do so anyway, the majority opinion by justice Samuel Alito was unkind to the work of earlier justices who had weighed the same questions carefully for decades.

David A. Strauss, a law professor at the University of Chicago, said the chief justice’s failed effort to broker a compromise in the abortion case presented him with an opportunity.

It could happen to Dobbs. What we now see as a decision that ended a federal guarantee for abortion rights could eventually be a symbol of a Supreme Court that is indifferent to public opinion, or the beginning of the end for many of our rights to privacy.

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.”

Only Kagan seems to have any awareness that the court’s stature is a precious resource that can be lost if the institution runs too far away from the public, or if the court begins to treat the public and its representatives as mere subjects — bound to obey its judgments — rather than partners in the construction of constitutional meaning.

First High Court Justices in the Alabama Voting Rights Act – Their Controversy with the Alabama High Court’s Defensive Attorney General

The court was supposed to focus on the basic principles of the Voting Rights Act despite Tuesday’s controversy from Alabama. Their forceful, if defensive, position may foreshadow arguments later this month over racial affirmative action in higher education.

The Supreme Court justices on the right were inclined to set new boundaries for state judges when it came to election controversies.

Roberts’ broader view, as stated in a 2007 case rejecting school integration plans: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The Alabama controversy was caused by the standards for vote-dilution claims and the state’s requirement that all citizens have the right to vote.

They were trying to make the freedmen equal to everyone else in society, because they had been discriminated against in the past. She said it was not a race-neutral or race-blind idea.

Justice Sonia Sotomayor, the court’s first Hispanic justice, stressed that Section 2 was intended to ensure that “a particular racial minority … can equally participate.”

The high court’s conservatives held their fire. Justice Neil Gorsuch asked not a single question. Justice Clarence Thomas posed two relatively modest queries to Edmund LaCour, the Alabama solicitor general, but did not ask the attorneys challenging the Alabama plan, or to the US solicitor general, if they wanted the justices to affirm the lower court.

The First Justices to Reopen the Courtroom: Justice Ketanji Brown Jackson and the Affirmation of the Voting Rights Act

Thomas, who is Black, has argued that racial remedies violate the Fourteenth Amendment guarantee of equal protection and, in practice, stigmatize the groups they are intended to benefit.

The Voting Rights Act was narrowed as he and Roberts joined in the court’s decision to kill Section 5, which required states with a history of discrimination to get federal approval before changing election practices.

“I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem,” she said, “because I understood that we looked at the history and traditions of the Constitution, at what the framers and the founders thought about.”

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 final justice to give her opinion on how the cases should be decided in a small room off of Chief Justice John Roberts’ chambers. She will be confronted with the reality that the court is dominated by a 6-3 conservative-liberal majority and she is one of them.

She countered arguments by an Alabama lawyer that a race neutral approach to redistricting would gut a remaining part of the state. The landmark is from 1965, The Voting Rights Act was enacted to protect the right to vote.

Adam Feldman, who compiles argument data for his Empirical SCOTUS blog, documented Jackson’s active role. He observed in a report that Jackson spoke more than anyone else, and that justice rarely eclipses 2,000 words.

The justices don’t discuss cases with each other before hearings. So the public sessions offer the first opportunity for justices to persuade colleagues, even if they have to use the lawyer at the lectern as a foil.

This week’s sessions were fast paced, with tension, and may have been the first time since the Covid-19 outbreak that the public attendance has been present. (The justices had taken the bench for the previous, 2021-22 session, but allowed only a few lawyers, journalists, and other selected spectators into the room.)

The two appointees to the Supreme Court often enter through the velvet drapes to make their positions clear. Kagan, especially, seems to have a plan in mind to try to pick up any possible votes in the conference.

The Case for a Proposed Amendment to the 14th Amendment, and the Democratic Voting Rights Act of 1965: Can Voters in Kentucky Usually Vote Black?

Alabama officials have refused to create more than one Black-majority district among the state’s seven congressional districts, even though about 27% of Alabama’s population is Black.

Washington. At her confirmation hearings in March, Ketanji Brown Jackson declared herself to be an originalist, meaning, she explained, that she would interpret the Constitution based on how it was understood at the time it was adopted.

She spoke during an argument over the meaning of the Voting Rights Act of 1965, a civil rights landmark. The immediate question in the case was whether a congressional map drawn by Alabama lawmakers had violated the act by diminishing Black voters’ power.

But a larger question loomed in the background: Was the act itself in tension with the 14th Amendment’s equal protection clause, which was adopted after the Civil War?

Editor’s Note: Mary Ziegler is the Martin Luther King Professor of Law at UC Davis and author of the book “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.” The views expressed here are her own. More opinion on CNN can be found here.

But can Democrats really manage the same feat across the country? There are limits on the plan of attack. It is harder to get a proposal before voters in key states like Virginia, Wisconsin and Texas. And voters in conservative states have not become full-blown supporters of reproductive rights overnight. If Kentuckians had been asked to vote, their answer might be different than the one that we heard Tuesday night.

None of this was likely to be popular. Rape, incest and health are exceptions for most Republicans. So far, Dobbs has seemed to mean bans on abortion that go further than most voters want. It’s not surprising to see some backlash to that.

Voters were reacting to what the Supreme Court did. There is no real precedent for the court to destroy what was long recognized as a constitutional right – much less to do so in a way that was mocking and dismissive. Justice Alito said in his opinion that half of the electorate was female. If people didn’t like what the court had done, he suggested, they could just go out and vote. Last night, voters certainly took Alito’s advice.

Most of the time abortions were banned in most of the states even though there were exceptions for rape or incest. State laws made it harder for physicians to defend themselves when they intervened in cases of medical emergency, narrowing the kind of health threats to which physicians could respond or requiring physicians, rather than prosecutors, to prove that they needed to save a patient’s life.

And some state lawmakers want to go even further. In Texas, felony charges have been filed against the CEOs of major corporations for reimbursing employees who traveled out of state for abortion. The Idaho Republican platform does not have any exceptions for abortion.

Concrete consequences are just some of the ones that are there. But Americans’ reactions to Roe v. Wade over the past five decades were about much more than what the Supreme Court said in 1973. For a wide variety of movements and individual Americans, Roe became a symbol: for equality for women, for judicial overreaching, or even for a broad idea of reproductive justice.

Four Supreme Court justices have been working on a decision that has the potential to change election practices nationwide.

They appeared to find support from the other justices when they talked about their positions during the oral arguments. The question is whether the trio’s most radical view – giving state legislators control of elections, without oversight from state judges – would prevail.

Although it might be attractive for some reasons, I think the worst thing we could ever do is to set a limit on state court action. So we have a standard but … it doesn’t mean anything.”

“I’d like to step back a bit and think about consequences,” liberal Justice Elena Kagan said, “because this is a theory with big consequences. It would say that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that, even if the courts think that’s a violation of the constitution. It would say that legislatures could enact all manner of restrictions on voting.”

It could allow the Legislature to give themselves a role in the certification of elections and the way they are calculated.

Against the Independent State Legislature: Two Years of Defending a State’s Gun Control Law in the Presence of the North Carolina High Court

Their sentiment emerged in cases two years ago from Pennsylvania and Wisconsin, as well as in preliminary action in the pending North Carolina case earlier this year. At times, they were joined by the judge.

Last March, Alito wrote that it was likely the North Carolina legislators would prevail once the justices granted and heard their petition. Thomas and Gorsuch signed onto his opinion.

As the high court cut off recounts to determine the state’s Electoral College votes back in 2000, it said county recount standards varied too widely to meet guarantees of equal protection and due process.

“This Clause could have said that these rules are to be prescribed ‘by each State,’ which would have left it up to each State to decide which branch, component, or officer of the state government should exercise that power, as States are generally free to allocate state power as they choose. Alito wrote that the Elections Clause doesn’t say that. “Its language specifies a particular organ of a state government, and we must take that language seriously.”

One of the justices who signed on to Rehnquist’s opinion was Thomas, the only one of the 2000 bench still sitting.

In Wednesday’s case, he did not retreat from his view, despite a personal plea by Neal Katyal, one of the lawyers who stood at the lectern to defend the North Carolina court action and reject the so-called state independent legislature theory.

“Justice Thomas, if I may, in two decades of arguing before you,” Katyal said, “I have waited for this precise case because it speaks to your method of interpretation, which is history.”

But Thomas, appointed in 1991 by President George H.W. Bush, suggested his alternative view of constitutional history would edge out state court judges.

If the state legislature were generous to minority voters in their reorganization and the Supreme Court agreed, would you be making the same argument? Thomas asked if he could.

He authored the New York State Rifle and Pistol Association v. Bruen, which was based on a historical reading of the Second Amendment. The court declared for the first time a right to carry a weapon outside of the home.

Joined by five other justices on the right wing, Thomas said a state’s gun control measures must be based on the nation’s history, not on public safety claims. The Second Amendment right to bear arms, he wrote, “requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding” dating to the late 18th century.

Lawyer David Thompson, representing members of the North Carolina legislature before the justices on Wednesday, invoked Bruen for historical view of legislative power.

“We think the way to think about this is consistent with the court’s opinion in Bruen last term, where it looked very focused on the time of the founding,” Thompson said.

Thompson told the court that Alexander Hamilton had written that the scope of legislative authority is governed by the commission under which it is exercised. Here, that commission is contained in the United States Constitution, and it is federal law alone that places substantive restrictions on state legislatures performing the tasks assigned them by the federal Constitution.”

Alito asked if the sentiment was related to the Independent state legislature approach and also addressed larger concerns raised by legal scholars who have cautioned against the approach.

Gorsuch, a 2017 appointee of former President Donald Trump, similarly took a page from his past views regarding the constitutional muscle of legislatures.

The justices have returned before to this theme many times. In her remarks, Justice Sotomayor expressed her hope that the justices could regain the public’s confidence that the court had not lost its way.

It’s good to point out hypocrisy. The most striking feature of all the dissent is how deeply conservative it is. liberals can choose to not do other things in dissent if they want to be Bucking up an institution in crisis. So is owning conservatives by suggesting that their interpretive methods could serve liberal ends if there were more liberal votes.