Virtual Supreme Court Watch

Earlier this year, a divided Supreme Court gave the Trump administration the green light to enforce the “public charge” rule, which governs the admission of immigrants into the United States, while the government appeals orders by district courts in New York and Illinois that blocked it from doing so.

There was a conference on Friday and two orders rejecting a request to put the "public charge rule" on hold given the needs of the Big V.  This is another case where it would have been nice if they explained themselves, it not some run of the mill matter.  Maybe, it was a reasonable move, especially because the justices did allow the parties to petition the district court (which originally supported them anyhow) to do so. New York at least has reportedly announced plans to file an emergency order.

While this [Walmart] visit (which some might characterize as a stunt) may have made a valid point in this litigation, this court cannot help but wonder whether the Church in this case adequately appreciates the fact that this case is not just about itself and its own rights, but the rights of the members of the public and their families to stay alive.

Meanwhile, the lower courts continue to deal with the Big V in a variety of ways, including abortion and religious liberty claims. One Mississippi district judge compared two such claims -- one for internal services, the other drive-in.  Noting that even the latter very well is not without risk, including to elderly parishioners and the possibility of mixing, he made a Solomonic sort of judgment accepting the latter in the specific context.

Let it be noted that in general, from the Pope on down, religious institutions often have generally be sane regarding the need for limitations here. Then, there is the mentality shown in this Kansas story, where lots of people close together in close quarters, including many older people, is compared to a "strip mall" which is rather vague but likely small numbers of people at places for limited times and more spaced out.  It is doubtful that a place like Kansas was truly discriminatory against churches.

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The thing that stands out among the SCOTUS orders is a request for briefing in two (not the state case) Trump financial cases on the relevancy of the political question doctrine.  Basically, we will have to wait and see (until June, I guess) what happens there.  As usual, there are various footnotes there for those interested.  For instance, Alito accepted sending a bunch of cases back to apply the new unanimous jury case (Thomas dissented without opinion) with the proviso that SCOTUS wasn't stating any opinion on the matter if the question was correctly raised there. 

The justices also -- moving to the virtual order portion --  via a brief per curiam -- declared the big New York gun case moot since the state changed the law.  Kavanaugh agreed but also sent a message that he was with the three conservatives in dissent (via Alito) on the wider battle -- how strong to apply the 2A.  That does have to be eventually settled, especially given the lower courts have split somewhat on gun regulations outside the home.  Liberals might not like the personnel, but settling constitutional questions of that caliber is they should admit their job.

[More on the Kavanaugh Watch -- this is a good discussion on the 5-4 statutory immigration ruling referenced in a past entry, including shades of the gun case, how policy priors colors a statutory interpretation.]

Justice Alito in dissented started off thusly: "By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced."  Calm down there, Jan.  It is really the other way around: the docket was manipulated to settle Second Amendment questions by not declaring this moot and/or improvidently granted before oral argument.  Note that Thomas didn't join a small portion turning on a factual ground for mooting the case.

Alito was the sole dissenter in the big PPACA case (if not getting much press) but Thomas/Gorsuch also didn't join the portion relying on legislative history as a back-up argument.  A sort of petty sort of thing familiar to Scalia watchers.  The other opinion (by Roberts) jumbled the usual wings some and held that an annotated legislative code could not be copyrighted, the dissent (Thomas/Breyer/Alito & RBG/Breyer -- not a good day for Alito) treating judges and legislators differently.  Thomas threw in a footnote that Breyer didn't join.  The website originally mixed up the hyperlinks in the Georgia and New York cases (wave over the links, you get a summary) but this was eventually fixed.

Here are two analyses before and after the health care ruling, which suggest it is a positive development that works against one of many Republican attempts to screw over PPACA.  Yes.  Not that slang term.  The Medicaid ruling was very problematic and the birth control mandate rulings confused things but I guess after this and King v. Burwell, we can give Roberts a partial clap for some sanity in the litigation thus far.  And, we will next have to deal with an argument even some backers of that last stupid lawsuit think is really stupid.  Maybe, the end is nigh?

The Georgia copyright case also is an interesting little case, including again that atypical split.  There is a reference to ta circuit court ruling by Justice Harlan with then Circuit Judge Taft -- this was before he was President; Taft would eventually be Chief Justice.  And, other than the usual trend in recent years to try to find a clear rule, the opinion promotes an equity approach.  There is a concern the average person would only have access to an "economy-class" vs. "first-class" version of the statutory code, the latter being a more up to date and accurate (such as court action that protects consensual sexual behavior that on the books appears criminal).  It makes sense that the justices would find this specific matter of special interest though the dissent differentiated judges and legislators in their own way.

(Breyer didn't join a footnote that spelled out some details, but Thomas in dissent in part noted: "Setting  aside  summary decisions, the reader of a judicial opinion will always gain critical insight into the reasoning underlying a judicial holding  by  reading  all  opinions  in  their  entirety." I gather the majority would be willing to sign on to that.) 

This entry was edited primarily to add the copyright content but as I said before, after the opinions dropped, rules of procedure material was as well.  And, eventually, there was an edit to the copyright case.  OTOH, though the opinion provides one, the Online Sources Cited page has not been updated to reflect the Georgia case citation.  There will be a conference on May 1st.