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

Monday, May 16, 2016


The oral arguments are over; now it is time to clear the deck by the end of the term.

The fact that things other than normal decisions will matter even at this late in day -- thus even a full Court in May 2017 will matter -- was seen in the recent refusal to overturn a stay of execution (4-4).  Today is also a scheduled "orders day" and the continued low granting of new cases clearly grows out of the realization that a final settlement can be hard without a full Court. This includes various cases where the result is narrower than it might be to avoid division.  Some might like the resulting weaker results, but that doesn't erase the net effect of the whole thing.

The Supreme Court website, SCOTUSBlog and other places can be sought out to get information on the multiple opinions and orders handed down today.  Other than not taking a lot of things (Thomas dissented regarding a favorite target of Scalia et. al.), the opening gambit was a per curiam, which unsurprisingly -- the usual subject of such things and more often than not against the prisoner -- involving a federal habeas matter.  The technical question at hand was settled 6-2 with Sotomayor/RBG dissenting for the prisoner.

The "big" news of the day opinion-wise was that the Supreme Court (later orders applied it to other cases) punting on the contraceptive mandate case. They foreshadowed this result with a special order requesting further briefing that appeared to try to find a way to settle the matter.  A possible option was suggested in the request, which might not have been the best solution, but it would have at least settled the matter and probably would be mostly workable. Maybe, especially with only eight justices, the decision really wouldn't have done that -- it would have left things open for yet more objections. Now, it is up to the courts of appeals in the cases (most of which at first held against the challengers), and maybe we will see this back later.

Breyer and Kagan, for whatever reason, silently went along. SS/RBG wrote a short concurrence (everything was nine pages, pages of captions included) to remind that the Court's per curiam wasn't really deciding anything. The Court noted it wasn't saying anything to interfere with the government providing approved contraceptives without cost.  This is nice, but the ultimate problem here is that the exemptions will in some fashion "cost" something -- it's why they are exemptions, not standard practice.  And, this level of micromanaging for each potential issue imho is simply impractical.  In practice, certain views and subjects will obtain more concern, which results in religious freedom problems in itself. Religious freedom is a comprehensive thing.

Update: Upon reflection, a 4-4 evenly divided Court might have been the best approach.  Nearly all of the lower courts rejected the accommodations. Now, that is up in the air, Sotomayor's concurrence aside, one or more of them might take a "hint" from the request for further briefing etc. A split like that could have led to a few courts to accept the challenges (one or more currently; hard to keep track of all these lawsuits -- need a spreadsheet with these mass litigation efforts) but the government there might offer the tweak suggested in the order. OTOH, perhaps the parties would try to re-open things themselves but a 4-4 Court would suggest four justices didn't think further accommodation was necessary. Who knows.

There were other cases decided of more limited concern if having some importance in the long run given jurisdictional matters having a broad possible reach.  One case that might be most approachable for the average person since they might be familiar with the search engine involved appears to be fairly limited (Ginsburg/SS dissented, but RBG noted she agreed with much of the majority's position) without more. In reply to the link -- she's a good resource and pleasant Twitter presence (lots of tweets this morning) -- RBG notes how wrongful detail that wrongly pads one's resume can be a problem.  The case though very well might be the sort of overly easy case taken to draw boundaries without helping much long term. Sotomayor (a bit roving lately) concurred with Thomas in one of these opinions, maybe a first.

A couple other cases (with but one justice dissenting in one) helped start to clear the 30 or so cases still to be decided. One somewhat interesting involved using state letterhead when private parties are used to collect debts owed to the state.  This was unanimously found not to violate a federal law against deceptive debt collection practices.

Note: I added to my comment on the contraceptive mandate case and SCOTUSBlog has an interesting discussion of this one, which will logically get less attention today. The bit about the conservative appellate judge (probably on short lists for a Republican President) is interesting inside baseball; Sutton wrote the one appellate ruling against supporting SSM rights while also an earlier one accepting the constitutionality of PPACA.

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