Monday, November 02, 2020

Reluctantly Not Being Evil

In Texas, a federal judge has thrown out an effort by Texas Republicans to invalidate over 100,000 legally cast ballots down via "drive-up" voting procedures in Harris County, ruling that the plaintiffs lacked standing. That's rightfully the headline, and it certainly puts this judge ahead of his colleagues on the 8th Circuit, but buried in the middle of the story we read that -- had he found the plaintiffs had standing -- he would have enjoined any further (i.e., today's) drive-up votes from counting. In other words, he thinks the plaintiff's crackpot theory is correct on the merits, he's just bound by technicalities not to give them what they want.

Meanwhile, the Supreme Court today reversed the 5th Circuit's decision that prison guards leaving an inmate in a cell overflowing with his own bodily waste and sewage deserve qualified immunity, concluding this was one of the rare instances where even general statements of law could provide fair notice that the relevant governmental conduct was unconstitutional. This is noteworthy on its own, as the Supreme Court virtually never intercedes to chide lower courts for being too willing to grant qualified immunity, but apparently this case was a bridge too far. Justice Alito concurred in the case -- which, again, puts him ahead of Justice Thomas, who dissented without opinion -- but wrote separately to chastise the Court for even taking the case, deeming it a matter of mere error-correction that was not worthy of the Court's time. Again, Justice Alito seems flatly annoyed that he was placed in a position where he felt compelled to be less of a schmuck than he'd like -- and anyone who voted for to intercede in Dunn v. Ray has permanently lost the ability to complain about the Court being too loose in hearing cases.

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