Order List

The Supreme Court dropped a basically no drama Order List today and now will take a bit of break until the last Friday of the month (conference) and then start arguments again on Halloween. 

The Supreme Court asked the solicitor general an opinion on a case involving (to quote Amy Howe) "eligibility for a patent for a method that would allow the Transportation Security Administration to screen airline luggage while at the same time allowing passengers to lock their checked bags."  The case does seem to be of some interest to the federal government though the Supreme Court itself would likely be more concerned about it being used to provide clarity in patents law in general.

Issue: Whether persons born in United States territories are entitled to birthright citizenship under the 14th Amendment’s citizenship clause, including whether the Insular Cases should be overruled. 

The Supreme Court did not take a case that in part asked them to reexamine the infamous Insular Cases, which treated overseas territories differently than the courts handled territories in the past.  The basic problem here was the racist idea that overseas territories should be treated differently because the people were unready to be citizens.  There was also some debate over how to properly regulate territories, especially territories that unlike traditional ones were not destined to be states at some point.  

In a recent case, Justice Gorsuch voiced his opposition to the Insular Cases, noting he was open to a case that would overrule them. The case involved a benefits scheme that treated Puerto Rico differently.  Sotomayor alone dissented, arguing it violated the due process by unreasonably treating residents differently.  She did not deal with the Insular Cases.  

A tricky issue in this case is that both the federal and American Samoa government does not want the Supreme Court to take the case. The latter in particular suggests certain outrage might be misguided on some level.  As the latter government noted in one brief:

As the federal government and the federal courts have recognized, that unique status distinguishes American Samoa from the fifty States and the other territories, and contributes to its ability to maintain its traditional cultural practices.

I am not quite sure how this follows except to the degree that current conservative opposition to race-based policies (though as with Native American cases, as least so far, you can frame them as not race based, but tribal or nation based) would result in problems. 

But, even there, I'm unsure. They still are "persons" under constitutional control. They cannot, for instance, ban freedom of speech or something.  What specifically about them being American "nationals" as compared to "citizens" do here?  Do residents of Guam do not have "traditional cultural practices" too?  I guess the issue is a sort of Pandora's box argument. If you change their status, something might happen.  

They are okay with the situation as is.  If so, is it really the national government's place to say "no"?  What this basically leads to is a question of what exactly is left of the Insular Cases.  The social security benefits case to my understanding was helped by but not fully reliant upon it being Puerto Rico.  And, Sotomayor's dissent shows an ability to protect benefits there without totally overruling the Insular Cases.  

Cases back to the 1970s at least also reaffirm that the old time idea that the precedents must be read to protect fundamental rights. So, unlike in the past, you cannot argue residents are unfit to be a member of a jury or something.  There is also the concern that "no difference" might result in complications when regulating federal zones like GITMO.  So, maybe, this case was not really an ideal case to re-examine the cases.  

The petitioner has repeatedly abused this Court's process, the Clerk is directed not to accept any further petitions in noncriminal matters from petitioner unless the docketing fee required by Rule 38(a) is paid and the petition is submitted in compliance with Rule 33.1. See Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992) (per curiam).

This statement is at the end of the orders list and it is one that you sometimes see.  In the original case, Stevens and Blackmun as a matter of equal access to justice would not have blocked future petitions without a filing fee.  I have not see a justice in recent years dispute one of these things, including Sotomayor.  Note the "noncriminal matters" part.

I looked up the petition -- you can do that via the docket page of the website by typing in the number, and many of these are frivolous -- and a brief perusal suggested the petition was at least somewhat legal sounding though it was hard exactly to see what the complaint was (I did not try that hard to delve into it).  

I am inclined to follow Stevens and Blackmun.  What is the test here anyway?  If you are going to block, at least explain why.  One more for the open government file.  BTW, there is a separate rule about "frivolous or malicious" petitions (39.8) where they can deny the benefits of filing as a "pauper." Sometimes cited.

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Order lists are often just the Supreme Court going about its business, if business important to specific litigants, but they have at least minimum interesting things mixed in.  For instance, as usual, one or more justices did not take part in certain cases.  Why?  Well, we are never told.  Some think we should be, especially if it is a financial conflict.  

I don't think that too important though trying to figure out why might be a fun parlor game. I think it might be helpful. Again, open government is a good policy.

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See you soon.