ETA: One of my regular reads to keep track of court news covered this action and suggests maybe Thomas was involved. Intriguing. Remember, e.g., Thomas was the fifth vote in allowing a state to refuse a Confederate themed license plate, even when they had a low threshold to supply vanity plates. Back when he spoke, he also had an extended colloquy in more than one cross related case. So, she might be right.
It is likely a mixture of thinking his claim (a sympathetic district judge, a black Obama appointee who in details discussed the racist origins of the flag, still dismissed his standing claim fairly strongly*) a long-shot and not wanting to make too much of an attempt in these times to defend things. The appellate court skipped the history and in a shorter opinion reaffirmed that his "stigma harm" was not enough for standing purposes. It didn't accept a sort of reasonable observer endorsement test approach ala religious displays. And, his daughter doesn't have standing either from the honoring the flag at school. So, the state doesn't really need to defend the flag as much of the lack of standing to make an equal protection argument.
The district opinion briefly referenced a Thirteenth Amendment argument, which you can find some outlier arguments made (badge of slavery) but the district court judge leaves that to Congress: "Congress alone has the right to pass legislation regarding the Thirteenth Amendment." States cannot do so to enforce the barrier in place? That seems overboard though the second second does specifically provide it special power to enforce. Anyway, specifically, the Thirteenth Amendment on its own was not enough to provide standing here. And, though arguably it could, Congress didn't act. (See a discussion here for some ideas on using the 13A in a school context.)
I would not put too much notice on the Supreme Court simply requesting a reply, especially if it turns out that it rarely is the case that the state does not offer one in such cases. Also, again, the problem below was standing. Maybe, a few justices at least are concerned about that. Then, they need to actually grant the case. But, we can think about things academically here. I do think there is a case to be made that state action is present here regarding a racist symbol that violates the Thirteenth and Fourteenth Amendment. Someone who regularly faces it should have standing if someone who does so regarding a Ten Commandment display does. This isn't merely a citizen. He and his child have special cause to be exposed. But, even this sympathetic article highlighted congressional legislation.
If the Supreme Court actually took the case, of course, maybe it would push the state to change the flag on its own. Sometimes, the point is that something is a constitutional wrong, not that it necessarily is something the courts will or even should be the ones to fix. Still, at least for the purposes of standing, probably would grant him a hearing on the merits.
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* For instance: "Moore also claims a right to "equal dignity" based on the Supreme Court's recent same-sex marriage decision, Obergefell v. Hodges.138 [lot of footnotes] "Prior to Obergefell," he said at oral argument, "I had no knowledge that I had a right to equal dignity under the law." I wouldn't be surprised that such overheated stuff doesn't have a "really?" implied. I would hope as a lawyer that he is aware that the Supreme Court protected the "equal dignity" of everyone before 2015.
The district court judge did not buy that somehow the flag makes the lawyer fear for his life or affected his livelihood since he has to face it when he goes to court. No specific concrete injuries were found and unlike viewing a religious display, purely emotional harm or "stigma" isn't enough.
According to the petition, “The message in Mississippi’s flag has always been one of racial hostility and insult and it is pervasive and unavoidable by both children and adults, with the flag flying ‘atop the state capitol, on state property, in all state office buildings, . . . at or near all public school property’ and in state courtrooms. The state’s continued expression of its message of racial disparagement sends a message to African-American citizens of Mississippi that they are second-class citizens and ‘encourages or incites private citizens to commit acts of racial violence.’”I saw a reference about a request by the US Supreme Court to Mississippi to "defend Confederate emblem" on its flag, the last state flag with that Confederate battle flag. There was no separate order on the page for that sort of thing. Doing some digging, found the docket page (can do a search by litigant). The lawyer who made the claim lost at the first two levels and the state originally waived a response. Justices want one.
It is likely a mixture of thinking his claim (a sympathetic district judge, a black Obama appointee who in details discussed the racist origins of the flag, still dismissed his standing claim fairly strongly*) a long-shot and not wanting to make too much of an attempt in these times to defend things. The appellate court skipped the history and in a shorter opinion reaffirmed that his "stigma harm" was not enough for standing purposes. It didn't accept a sort of reasonable observer endorsement test approach ala religious displays. And, his daughter doesn't have standing either from the honoring the flag at school. So, the state doesn't really need to defend the flag as much of the lack of standing to make an equal protection argument.
The district opinion briefly referenced a Thirteenth Amendment argument, which you can find some outlier arguments made (badge of slavery) but the district court judge leaves that to Congress: "Congress alone has the right to pass legislation regarding the Thirteenth Amendment." States cannot do so to enforce the barrier in place? That seems overboard though the second second does specifically provide it special power to enforce. Anyway, specifically, the Thirteenth Amendment on its own was not enough to provide standing here. And, though arguably it could, Congress didn't act. (See a discussion here for some ideas on using the 13A in a school context.)
I would not put too much notice on the Supreme Court simply requesting a reply, especially if it turns out that it rarely is the case that the state does not offer one in such cases. Also, again, the problem below was standing. Maybe, a few justices at least are concerned about that. Then, they need to actually grant the case. But, we can think about things academically here. I do think there is a case to be made that state action is present here regarding a racist symbol that violates the Thirteenth and Fourteenth Amendment. Someone who regularly faces it should have standing if someone who does so regarding a Ten Commandment display does. This isn't merely a citizen. He and his child have special cause to be exposed. But, even this sympathetic article highlighted congressional legislation.
If the Supreme Court actually took the case, of course, maybe it would push the state to change the flag on its own. Sometimes, the point is that something is a constitutional wrong, not that it necessarily is something the courts will or even should be the ones to fix. Still, at least for the purposes of standing, probably would grant him a hearing on the merits.
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* For instance: "Moore also claims a right to "equal dignity" based on the Supreme Court's recent same-sex marriage decision, Obergefell v. Hodges.138 [lot of footnotes] "Prior to Obergefell," he said at oral argument, "I had no knowledge that I had a right to equal dignity under the law." I wouldn't be surprised that such overheated stuff doesn't have a "really?" implied. I would hope as a lawyer that he is aware that the Supreme Court protected the "equal dignity" of everyone before 2015.
The district court judge did not buy that somehow the flag makes the lawyer fear for his life or affected his livelihood since he has to face it when he goes to court. No specific concrete injuries were found and unlike viewing a religious display, purely emotional harm or "stigma" isn't enough.
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Thanks for your .02!