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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, October 18, 2014

Ipse Dixit USSC Texas Voting Decision In Wider Context

Update: Rick Hasen talks about Breyer's silence, offering some reasonable possibilities. The "dissent without saying" option seems lame, especially when Ginsburg was on the record.  Even if he could officially do that, it surely doesn't come off that way. People ignored when he actually publicly joined Stevens' (along with Ginsburg) dissent in Bush v. Gore. They actually aren't that wrong to not assume he dissented here
The Supreme Court opened its 2014 term this month with major actions on same-sex marriage, voting rights and abortion — all handled in private, without explanation or even a breakdown of how the various justices voted.
From time to time, the justices in effect brag that unlike some people, they explain their rulings via opinions. At times, they point to them when asked about certain subjects, the justices standing on the opinions.

This was always somewhat overblown, especially to the degree that the opinions were not really always a full account of what was going on. Justice Brennan, e.g., in Eisenstadt v. Baird rested on rational basis review in striking down a ban on contraceptives that applied to unmarried couples but dropped language hinting at a possible right to choose an abortion. It also noted that wider fundamental rights issues need not be decided, given the law was irrational, but covered such things in dicta anyway. 

This sort of coyness at least is somewhat explicit. The Supreme Court also denies cert or appeals, including in death penalty situations, usually without comment.  As noted here, it was even more complicated before recent days, when mandatory appeals actually meant brief orders expressly made law though a "summary affirmance" generally were given less respect.  The use of Baker v. Nelson, as alluded to there, shows, however, that the opening for broader implications were possible if desired like a loaded gun.

From time to time, justices dissented from these orders / denials, or perhaps added some sort of concurring statement noting a denial of cert. shouldn't be taken to have legal precedential significance and (maybe even if they thought the issue important) there was a reason not to take a specific case.  Likewise, I have seen a few opinions by individual justices writing "from chambers" about appeals to them directly in their role as circuit justices that explains why they did not grant a stay or some such thing. There are thousands of appeals to the Supreme Court annually and most deserve quick treatment. The practice of not even noting actions by individual justices (noted from time to time at SCOTUSBlog with links) is a bit much.

Nonetheless, from time to time, there is a case for more substantive comments. As expressed here, e.g., the to this somewhat more than causal observer striking number of without comment (with a few dissents) stay or cert orders of special significance this month involving the death penalty, abortion rights, voting and same sex marriage. Election Law Blog, e.g., provided ongoing coverage of various lower court rulings involving voting id and procedure laws that to me unfortunately wound up being deciding weeks before the election.  They should find a way to avoid that sort of thing, perhaps postpone new voting rules for a year and a set of appeals.
In a stinging defeat for the Obama administration and a number of civil rights groups in a major test case on voters’ rights, a divided Supreme Court told the state of Texas early Saturday morning that it may enforce its strict voter ID law for this year’s general election, with early voting starting next Monday.  Three Justices dissented from the ruling, which was released a few minutes after 5 a.m. following a seemingly lengthy study.
As noted here, regarding the latest "ipse dixit" voting law stay, the Supreme Court did set up a rule that looked askance at late minute judicial changes of voting procedures.  The three dissenters here, however, argued that the contours of the rule are unclear.  Does it apply when the district court ruling convincingly finds the law discriminatory and overall problematic on statutory and constitutional grounds?  Particularly looking at how they treated providing the more strict ids. Now, we can say, though now we might add a few names, that "Simply put, Justices Alito, Scalia and Thomas do not value the right to vote as strongly as the other members of the Court," but it's best to do so based on an opinion, not (accurate it might be) tea leaves reading of orders. 

This morning's action -- my leaving open mid-afternoon the chance the USSC (akin to "take out the trash" Friday politician news) would have late day orders was prescient if not quite expecting one early morning Saturday (when did this EVER happen?!)  -- does take the cake.  The best case is that this fits in to the "don't change rules late in the game" rule that has thus far (if again without explanation) applied to appellate rulings that went in both directions. This is so even if as noted by the dissent that such "foolish consistency" is ill advised. But, guys, at least explain yourselves.  Justice Breyer's silence (see also in the post-Hobby Lobby order) is particularly annoying, if perhaps part of his long term prudential strategy.

I have noted that not taking SSM cases is defensible and recognize how these orders/stays policies work.  Nonetheless, there is a point when it is taken too far. I was annoyed when the dissenters didn't state why they were for a stay of more than one execution recently, at least once probably because of concerns with protocols. It wasn't just one case. At some point, even if the USSC won't take the case, the dissenters should have made their concerns know. The importance of voting rights, including public opposition to Citizens United, makes this a special case too. 

The break of dawn timing adds to what I see as a black eye to the Court. Enough!

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