SCOTUS Watch: Order/Opinion Day

Orders: SCOTUSBLOG has a "relist" watch and the Supreme Court took a case today covering an issue flagged there. The case's facts are sensitive: a mistaken child abuse report (turned out to be diaper rash) led to a heavy-handed police invasion of a home. A prime case of what "abolish the police" is about: police should not be involved in many cases and here it looked like a lot of the problems could have been avoided by handling the situation without sending multiple police to the home as compared to a social service workers. But, the issue here is more technical.

(SCOTUS clarified on Thursday they will not decide the 4A question raised in the petition.) 

Other than that, the order list did not bring much news though as usual having some interesting details.  Lin Wood was disposed of again, there apparently some lingering Trump election cases left.  Are we done now?!  The "Jane Doe" near the top of the order list involves a request for relief in a case arguing a vaccination requirement for children does not have a broad enough exception.  Rejected without comment as usual in these cases.  You have the standard rejections, including one by Jonathan Lovato, that looks like a penciled in print appeal ala Charles Gideon or something. 

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Opinion: When Chief Justice Roberts (who barely dissented at all last term) dissents alone for the first time in his career, you figure the opinion is of some note. How much? It's unclear. For instance, though focusing on how originalism is basically Calvinball (though being a bit more polite), Michael Dorf (a usual sane voice) said this about the idea paying nominal damages (let's say a dollar) could dispose of a lawsuit:

I agree with CJ Roberts and Justice Kavanaugh that the majority opinion is open to the reading they offer, but it is at least a little odd that Justice Thomas doesn't even mention the possibility. Moreover, in stating that nominal damages cases were a kind of early version of the more modern declaratory judgment action, Justice Thomas arguably implies that perhaps a voluntary entry of judgment against the defendant does not redress a plaintiff's wrong as well as actual proof followed by nominal damages--and could thus be rejected. Accordingly, the practical significance of Uzuegbunam remains to be seen.

Another law professor thought that avoidance approach was "absurd." Prof. Leah Litman, a liberal law professor that is one person I follow to get that view appears to think that not interfering with the rule in place is sensible. Justice Thomas defended the approach by noting that "the common law avoided the oddity of privileging small-dollar economic rights over important, but not easily quantifiable, nonpecuniary rights." That makes sense and to cite the dissent's concerns, that is both a "case" and a "controversy" per Art. III.

But, here, the wrong was addressed.  It wasn't really like the Taylor Swift example cited by Justice Kagan.  There Swift wanted to make a point about a wrong she felt was inflicted on her, but did not want compensation. So, she sued for a dollar to provide the bare minimum necessary to bring a lawsuit.  If the person paid the dollar, the person would be admitting guilt.  Here, the college changed the policies. Why should that not do it? It is a "remedy" to the wrongs (to cite the majority). The litigants wanted the court to legally determine it was wrong to help prevent wrongs in the future. This was seen by the dissent as opening up a wrongful advisory opinion approach, judicial avoidance not always a thing.

Roberts didn't deny that it was possible in this very case for the plaintiffs to just allege similar token damages tied to an actual thing like carfare.  The rule in place has been around for some years. Congress can put in a jurisdictional minimum too, if it cares to, but the issue is that sometimes you will have a wrong that might not translate into money damages.  Thus, though religiously conservative people are involved here, you had atheists and the like supportive of the ruling.  

I'm not sure how far that takes you since again the college changed its policies.  It is like nothing came of the whole process.  Finally, one thing I saw that came up was that the real issue really in these suits are attorney fees, but the majority put that issue to the side. Anyways -- noting I edited this portion of this post upon further thought -- it is unclear just what this case really amounts to as a bottom line measure. Just how often will this pure issue come up and even then will the payment of the dollar (or perhaps some other workaround) be able to avoid things even then?

The Court deciding the matter 8-1 suggests some wide agreement, but the bottom line point of Roberts' dissent (concerned about judges as advice columnists) appears to be a message to the new conservative (tainted) supermajority not to go too far. Roberts has already (a major example being the 2A case out of New York) played avoidance. A major 15 week abortion ban has been pending for months now without a decision on what to do with it. And, Roberts is no longer the fifth vote, right?

Anyway, here is a summary of the ruling, written by Thomas (commonly authoring technical opinions when not writing separately) with Kavanaugh briefly concurring to add he agrees with the Roberts nominal damages payment disposal method. 

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There are no more official actions at SCOTUS -- no conference either -- scheduled this week, but we might have something pop up.  If it is minor, might insert it below.  

ETA: SCOTUS has canceled oral argument in the case on the legality of Medicaid work requirements approved under the Trump administration. Since Fridays wouldn't be Fridays with none of this sort of thing, Amy Howe on Saturday flagged a Biden Administration request to dispose of a "gag rule" case (abortion), which was pretty much expected.

March arguments will continue by telephone.

Article again raising the problems of the shadow docket. 

Sen. Whitehouse starts special hearings to cover his pet concern, dark money and its effects on the courts.