Thread by @chrisgeidner

BTW: I’ll be listening to these #SCOTUS arguments, starting at 10a, and tweeting anything notable I catch.

https://twitter.com/dispositive/status/1458063003274858496

First up is the Puerto Rico SSI case, which I wrote about for @MSNBC here: msnbc.com/opinion/puerto…

An amici brief from DC and other territories and states questions the federal government's position that you can discriminate against states so long as you meet rational basis:

Gorsuch presses Gannon (from the SG's Office) on why SCOTUS shouldn't overturn the Insular Cases! DOJ says elements of the decision are "anathema" to the government's current views — but the cases aren't at issue here.

Breyer ... working through it!

Kagan asks if PR could be excluded from any benefit program — then says the government's argument would lead to a ruling that would mean Congress could exclude PR from any benefit.

DOJ responds that the SSI exclusion actually gives Puerto Rico more autonomy to do what it wants with its revenues (even though it pays more into the federal treasury than a handful of states).

Sotomayor highlights the elements of equal protection—talking about Puerto Ricans being politically powerless, noting they are "routinely denied a political voice."

More: "Needy is needy, whether in Puerto Rico or the mainland. ... I do think restrictions need to be rational."

Amazing, again, that the Biden administration is fighting this case.

The Biden administration's lawyer at the Supreme Court: "There's no fundamental right to [SSI]."

REMINDER: The Supreme Court is meeting in a city that also lacks full voting congressional representation.

José Luis Vaello Madero's lawyer is now up.

Thomas asks about equal protection principles—noting that EP protects individuals, then asking if you can transfer (mis)treatment of a territory to the individual. Ferré, Vaello Madero's lawyer, responds that the individual is treated, effectively, as a non-citizen when in PR.

Barrett asked if Torres and Harris — two earlier cases — need to be overturned, and Ferré sorta jumped around but eventually said (I think incorrectly) yes.

Sotomayor is now coming back to it ... to help him clean up.

Kavanaugh: "You make compelling policy arguments, but" ... he goes on to talk about other differential treatment based on things like having two senators per state and the Electoral College. "Big picture thoughts on that?"

Response: "An indefinite state of territorial status" creates a lack of full participation for Puerto Rico in the country. "The Court in the Insular Cases ... stopped the clock ..."

After Ferré mentioned the constitutional guarantee of a republican form of government, Roberts asks if that is judicially enforceable. Ferré doesn't really know, but nor do the justices, who say they'll go back & look.

One of those "great Constitution you've got here" moments.

Roberts (who I presume got a note from a clerk) now says possible violations of the clause present a nonjusticiable political question!

Here is what the National Constitution Center says about the clause, FWIW: constitutioncenter.org/interactive-co…

Now up: Ramirez v. Collier, the religious liberty death penalty case.

WILD: Thomas questions whether Ramirez is "gaming the system" and whether that should be considered as part of questioning "the sincerity of his religious beliefs."

Would love to see ANY other instance of Thomas asking ANY similar question in ANY other religious liberty case.

I'm rarely surprised by Thomas's thinking, regardless of what I think of it, but that was NOT something I would have expected.

Kavanaugh [corrected] says the state's compelling interest is in making the risks to the execution process as close to zero as possible — and how can the Court analyze that.

Kavanaugh now says that his concern is this will mean everyone will be asking to go further and further, and there will be more and more cases, saying someone might say they need two spiritual advisers in the execution — or need to be hugged.

Alito: THERE ARE SO MANY CASES! THEY MAKE US LITIGATE EVERYTHING BEFORE WE LET THE STATE KILL PEOPLE! IT'S SO OVERWHELMING!

I know it's a religious liberty case, but Jesus Christ.

Cross-apply these questions to Hobby Lobby, for example. There was no concern from the majority about litigation that would follow! That's called: The Law!

Alito is worried about "the unending stream of variations."

Is he new to the Supreme Court (or the law)? Does he have no clue how things work? Are we really supposed to take this whining at face value?

OK: How do we say it?

Kavanaugh: What about the victim's family?

This question should go to Texas, as well, for its refusal to allow Ramirez's pastor to act in accordance with his religious beliefs — which is why the execution was stayed.

Kagan, in questioning the DOJ lawyer, notes that in 11 of the 13 recent federal executions, there were spiritual advisors present. She's now asking how the requests were managed. "We resolve them informally," the DOJ lawyer says. None of these issues went to court like this case.

DOJ filed its own brief in the case: supremecourt.gov/DocketPDF/21/2…

Gorsuch wants a "bright-line rule" if Ramirez is to succeed, he says.

DOJ says they accommodated presence of spiritual advisors, but would have "vastly" greater concerns with touching.

"It's a very fraught circumstance," DOJ lawyer says of ... an execution.

There's no better way to understand the absurdity AND the horror of modern executions than listening to the feigned concern conservative justices are showing today that they just ignore in other instances.

Interesting. Barrett pushes back on the idea that the Court should accept "zero risk" as the compelling interest because that would mean prisons could stop any exercise of religion under RLUIPA.

"This is a very sensitive area of law," Texas SG Stone says, continuing a new sensitivity that conservatives have shown today in the Supreme Court about the death penalty.

Lol. OK. @gabrielmalor is "ARE-LUPA" and I am "RUH-LUPA," so, thanks for nothing, y'all!

"You have to think about the risk and the harm," Kavanaugh says of the analysis, noting that prison lawyers are worried (today) about "catastrophic" harm that could come if something goes wrong with a spiritual advisor in the execution room.

"We responded in 36 days," Stone says, noting that the manual says they had 40 days to respond. Sotomayor pushes back, suggesting that couldn't you argue that Texas is the one delaying here.

Judd Stone has a habit of being a bit of a jerk in arguments (see also, SB8 arguments): "He should have done everyone a favor and sued in May."

The case is submitted.