Today in Supreme Court History: September 22, 2005

9/22/2005: Senate Judiciary Committee votes 13-5 to send Judge John Roberts's nomination to the full Senate.

Chief Justice John Roberts

Comments

[JoeFromtheBronx]

Whether the Supreme Court should vacate the United States District Court for the Middle District of Alabama’s injunction of execution of Alan Miller “by any method other than nitrogen hypoxia” and allow the state to execute him by lethal injection.

The women justices dissented from SCOTUS vacating the injunction on 9/22/22—Hamm v. Miller.

The first time nitrogen hypoxia was used, it reportedly didn’t go well. Nor did Alan Miller’s execution when the state tried lethal injection. The Supreme Court didn't hand down its final decision until the evening though Alabama still had a few hours. The state later changed the rules to give itself more time after a death warrant was signed.

Alabama will try again (in both respects) later this week.

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I agree with a contributor here that it is time for Roberts to resign. It can even help suppress term limit talk by showing that justices can voluntarily retire from the bench!

[Mr. Bumble]

[ReaderY]

Term limits would require a constitutional amendment. Nobody sees 2/3 of both houses in favor, let alone 3/4 of the state legislatures. I don’t think Roberts worries himself, or need worry himself, too much about idle talk. It’s a free country, and yappers got a right to yap.

[Hugo S. Cunningham]

(1) Congress and the President have leverage to force a SCotUS resignation by threatening to expand ("pack") the Court. Congress can set or change the SCotUS size by simple statute, something they did several times during the Civil War era.

(2) If the Democrats gain both Congress and the White House this year, we may see tense negotiations about SCotUS size. The only restraint is fear than, once the precedent is set, their opponents will pack the Court some more once they come back to power.

[Dan Schiavetta]

1) Democrats won’t get control of Congress
2) Even if they do, most do not support changing the Court
3) Even if they did, Republicans would filibuster

[not guilty]

Let’s hope that Democrats retain control of the Senate and abolish the filibuster at the beginning of the new Congress.

That rule change can be effected with a simple majority vote. The current 60 vote requirement was adopted in January 1975. Prior to that cloture required two thirds of those present and voting.

[Brett Bellmore]

It's rather telling, though, the exact procedure by which they've been getting rid of the filibuster. The major problem with our federal government writ small, as it were.

The Senate has a written set of rules, which STILL include filibusters for nomination. When the "nuclear option" is exercised, what happens is that a Senator raises a point of order that contradicts the actual written rules of the Senate.

The presiding officer then overrules the point of order, based on those written rules.

And then, in a move that's like the whole rot of current constitutional jurisprudence summed up for everyone to understand, the ruling based on the text of the rules is appealed, and overturned on a majority vote, so that going forward the written rule is interpreted to mean the opposite of what it actually says.

The written rule continues to have the same words, since the actual language of the Senate rules is awkward to actually change; According to those rules, changing them itself requires a supermajority.

[Dan Schiavetta]

Miller v. Hamm, 143 S.Ct. 50 (decided September 22, 2022): Court vacates District Court’s stay of execution (implicitly disagreeing with its evaluation that defendant would succeed on the merits) (Sotomayor, Kagan, Barrett and Jackson would maintain the stay); Miller had survived two attempts at execution by lethal injection, the executioners being unable to find a vein, and argued Equal Protection and Due Process violations; right after the Court cleared the way for execution, the State of Alabama decided to switch to death by nitrogen hypoxia but it took a long time to develop the protocol; Alabama Supreme Court later ok’d this method and execution is scheduled for Sept. 26, 2024

Pfeifer v. E.I. duPont de Nemours and Co., 530 U.S. 1300 (decided September 22, 2000): denies cert to review Nebraska Supreme Court decision holding that farmer’s breach of warranty claims against manufacturer for herbicide (sales person said it controlled weeds in corn but instead it killed the corn too) were preempted by federal statute limiting warranties to labels, 258 Neb. 756

Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 521 U.S. 1146 (September 22, 1997): denies cert to review Circuit Court holding that Seuss copyright was infringed by parody using Seuss style language to describe O.J. Simpson trial (“The Cat NOT in the Hat”), 109 F.3d 1394

[Mr. Bumble]

Happy First Day of Autumn. Coming soon a new Supreme Court season.

[Krayt]

Interesting. This is one of those equinoxes that isn’t on the 21st. Looking up how rare this is, it's not rare at all. The spring is on the 20th and the fall the 22nd, at least throughf 2030. It is the solstices that tend to be on the 21st.

[JoeFromtheBronx]

Some might find it surprising that a state is able to try to execute someone again after failing in the first attempt.

Francis v. Resweber (1947), never overruled, upheld the state executing “in installments” when the first failed attempt was an “accident, with no suggestion of malevolence.”

Five executions are scheduled from now until 10/1. One was performed on Friday.

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Some — including more than one retired federal judge — argue (yap?) that term limits of a sort (the specific duty period is limited; the tenure is not) can be done statutorily.

See, e.g., https://www.whitehouse.gov/pcscotus/final-report/ as well as discussions by retired judges like Diane Wood and David Tatel (in his excellent book).

https://www.brennancenter.org/our-work/analysis-opinion/why-term-limits-supreme-court-justices-make-sense

Multiple amendments clearly settle constitutional disputes — such as the unconstitutionality of certain income taxes — so an amendment can be useful either way.