Thread by @chrisgeidner

#SCOTUS, Nov. 6, 2018.

Five minutes until a one-box day at #SCOTUS (meaning one or two decisions in argued cases).

The only #SCOTUS decision today is a unanimous one in Mount Lemon Fire District v. Guido. Ginsburg writes, affirming the 9th Circuit. Kavanaugh did not participate.

The decision in Mount Lemmon (corrected spelling) affirms that the coverage of the ADEA (age discrimination) in terms of covered employers is broader than Title VII of the Civil Rights Act. Opinion: supremecourt.gov/opinions/18pdf…

Headed up to arguments in Bucklew.

I’m biased, but that was the most interesting argument I’ve attended in a while. More once I get set up on the train.

OK. So! Bucklew did not go how I thought it would go. It also did not, apparently, go how Justice Sotomayor thought it would go.

Although Sotomayor started out pushing heavily for ways of getting rid of the case w no substantive opinion — likely, a DIG (dismissing the case as improvidently granted) — things quickly shifted as justices tackled SCOTUS's recent jurisprudence on method of execution challenges.

Most notably, Chief Justice John Roberts asked serious, carefully considered questions about particular execution procedures, the court's precedents, and the ramifications of those precedents.

For the past few terms, it's not really been clear where Roberts is at or is going on the death penalty. Here's what I wrote about it in January: buzzfeednews.com/article/chrisg…

Now, with Justice Kennedy off the court, today was one of the first times we've seen Roberts struggle with the death penalty without the benefit of Kennedy's presence on the court. What we saw was really interesting.

At one point Roberts said something along the lines of "if the death penalty is constitutional, as it now is ..."

I never would have expected those words to come out of the Chief's mouth until they did. (And I know I wasn't alone in the press corps to note that phrasing.)

Roberts wasn't alone. Breyer, Sotomayor, and Kagan really used the argument to dive into details, but also to step back and assess where things stand after Baze or Glossip. Kavanaugh, not on the court for those cases, also dove right in with a tough question to Missouri.

Kavanaugh asked Missouri's lawyer whether the state could still go forward w an execution under Baze/Glossip "even if" it would cause "gruesome, brutal pain."
Lawyer talked around it.
Kavanaugh: Is that a yes?
Lawyer: Yes.

For non-lawyers, under Baze/Glossip, the Supreme Court has said that if an inmate is challenging a method of execution, you must show the method has a substantial likelihood of causing severe pain AND provide a less painful, available alternative.

One of the questions — which Sotomayor pressed — was whether an as-applied challenge like Bucklew's, in which he says his rare medical condition makes Missouri's method of execution unconstitutional only as to him, still needs to meet that second requirement.

Another question had to do with what "available" means, which is an issue lower courts have addressed in different ways.

But, the bigger picture is that this argument was the first time in well over a decade when Anthony Kennedy wasn't holding the steering wheel on the Supreme Court's death penalty jurisprudence. And the justices—even Alito, though clearly on one side—were taking that seriously.

OK. For those who want it, I'm going to pull out some of those key moments from the transcript: supremecourt.gov/oral_arguments…

Here's an idea of where Sotomayor was ready to go in this case. [Also, fair warning, things got somewhat graphic in description today.] Here were her first two questions:

Here's the Chief Justice w/ that interesting aside, but also this is where Roberts is discussing with Bucklew's lawyer about the second part of the Baze/Glossip test — providing an alternative. (In this case, they offered nitrogen gas, which has never been used.)

Here's where Breyer got into that discussion — wondering whether a method having been untried is a "fatal strike" against it being proposed as an alternative under Baze/Glossip — with the state's lawyer.

Here's where Sotomayor really lays out why she questions (1) the alternative requirement at all but (2) particularly in as-applied challenges.

Here was the Kavanaugh exchange with the state's lawyer, when he asked if the state could go forward w/ an execution that could cause "gruesome and brutal pain" if the inmate provides no alternative.

Here was an interesting argument from Kagan about a reason for treating deference to the legislature different in an as-applied challenge like Bucklew is bringing as opposed to a challenge to the method of execution being used at all.

And, that's that. You can now return to your Election Day interests, obsessions, and/or concerns.

More from #SCOTUS today: The court ordered a response to DOJ’s petition in the Census case (about Ross’s deposition and other discovery) by next Tuesday. Also: Add’l briefing ordered on standing in a case about class action settlements that was argued on Oct. 31.

Recall, #SCOTUS denied DOJ’s request to stop the trial — buzzfeednews.com/article/chrisg… — but DOJ’s request for the Supreme Court to hear a case challenging the discovery sought in that case remains pending. This is an order for a quick response to that petition.