Weekly Roundup – May 25, 2017

On Monday, in Cooper v. Harris, the Supreme Court upheld a lower court decision to strike down two North Carolina congressional districts as unconstitutional racial gerrymanders. Since the opinion’s release, the case has continued to garner attention. Linda Greenhouse of the New York Times argues that Cooper highlights the Court’s role “as a forum for electoral struggle,” and she notes the ways in which justices have invited parties to use it in that way. Greenhouse surveys other recent election- and voting-related cases, and she calls Justice Kagan’s majority opinion in Cooper “her most important since joining the Supreme Court seven years ago.” And commentators continue to debate the implications of the case going forward. Chris Elmendorf, for example, worries that the Cooper could lead to a weakening or even elimination of state obligations under Section 2 of the Voting Rights Act, insofar as it outlaws race consciousness in redistricting. And the SCOTUSblog symposium continues to have fascinating commentary from across the political spectrum. ISCOTUS co-director Carolyn Shapiro also discussed the case on WGN’s Legal Face Off this week. (For more information about Cooper and the other cases decided on Monday, see ISCOTUSnow’s post earlier this week.)

On Thursday evening, the Supreme Court also declined to grant certiorari or issue a stay in Thomas Arthur’s execution by the state of Alabama. Arthur, who maintained his innocence, was challenging the use of midazolam as part of the execution protocol. When the Court rejected his earlier cert petition in February, Justice Sotomayor, joined by Justice Breyer, dissented and laid out an extensive argument about why the Court should consider (and reject) the constitutionality of the execution protocol that uses midazolam. (The allegation is that midazolam does not render the individual unconscious, but does paralyze him, so he experiences tremendous pain when injected with the other two execution drugs but has no way to react or communicate what is happening.) In her opinion on Thursday, dissenting from denial of certiorari and denial of a stay, Sotomayor accused Alabama of worsening the situation by impeding Arthur’s access to the courts by refusing to allow his lawyer to have a phone with him during the execution. As a result, if the execution were botched or otherwise problematic, the lawyer would have difficulty seeking judicial intervention. The execution was carried out on Thursday evening.

In other news, Fix the Court released a report on transparency in the judiciary. The organization, which supports live video or audio streaming from both the United States Supreme Court and the federal Courts of Appeals, commented on video and audio access in the high courts of California, Iowa, Minnesota, Texas, and Utah. The report found that live-streaming is on the rise. Iowa provides live-streaming for cases of particular public interest, and video records all arguments. The Iowa Supreme Court even allows journalists to use social media in the courtroom. The Minnesota Supreme Court provides same-day video of its arguments, And in 2016, the California Chief Justice decided to live-stream all of that court’s arguments, joining Texas and Utah in doing so. The Texas judiciary has been particularly open to cameras in the courtroom, with Texas Justice Don Willett arguing that they help “demystify this inscrutable branch of government.” As United States Representative Ted Poe, a former judge from Texas, explains, “we have the greatest judicial system in the world for determining guilt or innocence…why would we not want the world to see it?” (The Fix the Court report also addresses tenure and mandatory retirement policies for judges in the five states.)

The Supreme Court will announce its Order List from yesterday’s Conference on Tuesday, and it may also release opinions. ISCOTUSnow will be back with a summary of that and other Court-related news.

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