SCOTUS Watch: Welcome Back!

More On Chief's Report

Since there was not much activity this week -- things will speed up next week -- it's a good time to add a bit to my discussion of the Chief Justice's End of the Year Report.

(Well, there is now, but I started this earlier.) 

The theme was the usage of artificial intelligence. In this context, it made sense that he mentions humans are not machines. A comment calls to mind his infamous comment during his confirmation hearings about calling balls and strikes: "legal determinations often involve gray areas that still require application of human judgment." 

The umpire reference was far from new. For instance, James Madison spoke of the Congress being an "umpire" to settle competing sides. Thomas Jefferson spoke of the law of nature being an "umpire." The implication that there is not much discretion here is another matter that sports fans will find amusing (among other things).  

The other thing to flag there is that language is a tricky thing. The word "umpire" has various nuances. He was craftily using the word in misleading ways. This also shows that people in the past could use a word that is somewhat like the word used today. They can use it noticeably differently too.

Steve Vladeck also flagged that John Roberts changed the policy of his predecessor (and former boss). Rehnquist used the report as a type of policy statement, engaging with Congress. Roberts used the report as more of a one-way statement to address certain themes. 

Vladeck is correct that something is lost in this transfer. Roberts refused an invitation to appear (or have someone else appear, including two justices of different views) in front of the Senate Judiciary Committee. This was in part deemed a threat to the separation of powers. A bit of bullshit.

There is a possibility of engagement between the branches. It does not end with confirmation hearings. Members of the executive, for instance, testify to Congress. The courts are not such rare birds above the fray that they can never directly engage with the other branches. 

Roberts' hubris -- I will use that word -- was a lost opportunity. He has some actual concern for the sanctity of the Supreme Court but was unwilling to step up. The resulting disdain for the ethical guidelines voluntarily provided (which in various ways weakened the rules) is a self-inflicted wound.  

Chief Justice Charles Hughes went another way when court expansion was in the air. Not every colleague was a big fan, but he found a way (with the help of liberal Justice Louis Brandeis) to answer the challenge. His predecessor played an important role in legislation and the building of a court building, which involved engaging with Congress. 

A yearly report is one way, which can be done softly, to engage with Congress and the nation as a whole. Roberts does so in his own fashion. Nonetheless, more engagement would be a good idea and not improper. 

The report also had a silent memorial to the recently passed Justice Sandra Day O'Connor. The photo at the head of the report is a courthouse named after her. The photo makes it look quite modern looking. 

Docket Updates 

The Supreme Court has "docket pages," which provide updates on developments of pending cases. This page includes various briefings, which can be useful to get a sense of what the case is about. 

There is a page to do a docket search (type in a party or docket number). Court watchers find this very helpful. We would find it more helpful if orders would provide links to the docket page. Now we have to look up cases separately. 

A Supreme Court report flagged a new feature. Again, it would be helpful if things like this were promoted more, including by providing a statement on the press release or media information page. Anyway:

Users can also sign up to receive email notifications of activity in pending cases. To do so, visit the docket page for an individual case and click on the envelope icon that is just above the case number. You will be asked to enter an email address. When you click “Subscribe,” an email will be sent to you with a link for you to confirm the correct email address. Once you click that link, you will receive email notifications every time there is a new filing or action by the Court in the case.

(The chief's report also noted there is a phone number you can call for case information: 1-866-222-8029.) 

Court watchers, particularly reporters, have spoken of constantly updating docket pages to find out the latest. The Supreme Court sometimes drops "brief orders" (in the lingo, even if the orders are totally boilerplate with no real content; the phrasing makes it seem like they said something specifically more than "denied"), including granting or rejecting a stay. 

Nonetheless, the orders usually are quite limited, and a lot of action takes place only on the docket pages. The docket pages provide more insights. John Elwood provides a "relist" watch" to talk about cases taken up in multiple conferences. 

We still do not know a lot about what is going on behind the scenes. For instance, an NYT feature on the development of the Dobbs opinion provided insights into how justices gamed the system to delay handing it down. Still, the docket page provides some helpful information. An email notification system is a helpful resource. 

Friday 

A vague reference was made on the daily calendar found on the Supreme Court website:

The Court will convene for a public non-argument session in the Courtroom at 10 a.m. 

Seating for the non-argument session will be provided to the public, members of the Supreme Court Bar, and press. The Supreme Court Building will otherwise be closed to the public.

One court watcher online suggested to me that this was a time to swear in people to the Supreme Court bar. Sure. The reference to the Supreme Court Bar is right there. Nonetheless, why cannot the Court simply say so? 

They also had a private conference and an order list is due on Monday. John Elwood notes they have over four hundred petitions to examine, a particularly large number. Welcome back, guys and gals. 

They released three orders. One provided some bookkeeping regarding various cases. One granted Trump's petition for review in the Colorado insurrection case (February oral argument). And, one granted a case involving the limits of an Idaho abortion ban, including a Biden Administration guidance involving emergency situations. 

A Fifth Circuit case just was handed down that blocked said guidance. Chris Geidner notes that the district court ruling blocking the ban was stayed. So the law will be allowed to take effect. The oral argument is in April. No public dissents to that stay. The abortion pill case is also pending.

Maybe, they shouldn't have stripped abortion rights. 

Next Week 

We will have that Order List, which is usually not too exciting. Then, we will get back to oral arguments, for three days next week, and two (after the holiday) the next. 

Plus, with only one opinion (a short punt) released so far, they should get around to them too. 

And, remember, if you want to learn more about all those cases referenced in the Monday Order List (a list of court actions), take the docket number provided, and look them up. 

Meanwhile ... The Israeli Supreme Court blocked a move by the government to limit their power. The vote to decide the matter was not close. The merits were very close though as discussed here, not quite as close as some say. 

The decision should be understood in the context of the constitutional system in that country. Constitutional review is a common approach worldwide. Nonetheless, how different countries go about it is often the rub. We should spend more time examining how that works. It provides helpful insights.