SCOTUS Watch: Opinion Day

The Supreme Court is back and getting busy again. After two notable orals, we had more orders. I added a few details in the last entry. 

Opinions 

Two opinions dropped today. Gorsuch wrote a short opinion while Alito (with Kavanaugh) wrote a short concurrence. Amy Howe summarizes:

The Supreme Court on Tuesday ruled that a lawsuit filed by an Oregon man who was placed on the No Fly List can go forward even after the government has removed him from the list and pledged not to return him to it “based on the currently available information.”

Sotomayor had the second case, which involved the limits of the immigration judges to weigh certain evidence. The majority, largely appealing to an earlier case, held the immigrant here should win.  

Jackson concurred in judgment, wary about the precedent, but going along. She did emphasize that courts should respect when Congress limits their jurisdiction. They are allowed to do that. 

Roberts briefly noted he still supports the earlier case. Nonetheless, he joined Alito's dissent (with Thomas) as applied to these facts. Roberts dissenting these days is rare enough to be notable. 

Alito/Thomas dissented in the original case. He granted it as precedent but said the majority went too far. Alito continues to use the term "aliens" while Sotomayor (and others) do not. She uses "noncitizens" here. Alito talks of "aliens," "illegal aliens," and "criminal aliens."  

This was all done (in total) in less than thirty pages. Nonetheless, it is somewhat interesting as a matter of inside baseball of Court dynamics. It's an example of the justices not merely always dividing in stereotypical ways. To assume that is a strawman without saying there are actual blocs. 

Also, this case was a win for Jaime Santos, in her first Supreme Court case. Santos was an original co-host of Strict Scrutiny, but for whatever reason (it's unclear why & they never reference her; when the case was previewed, she was barely referenced, in a wary tone.) 

RBG and Breyer

Not only current members are busy. There was some controversy involving Justice Ruth Bader Ginsburg. The poor woman cannot rest in peace. To summarize the latest:

An award given in the name of Ruth Bader Ginsburg has been abruptly canceled after the family of the late Supreme Court justice and others objected that this year’s slate of recipients do not reflect her values.

The Dwight D. Opperman Foundation last week announced that it would award the prize to Elon Musk, Martha Stewart, Rupert Murdoch, Michael Milken and Sylvester Stallone. Critics couldn’t help but observe that these “five iconic individuals” — as the awards news release described them — included among them convicted felons and conservative billionaires who own right-wing media enterprises.

Reading between the lines, it sounds like the second (?) wife of Dwight D. Opperman, whom he married five years before his death for whatever reason decided to "go another way."  The choices even on that front are rather extreme given the name of the award. The article notes the "biological" relatives had nothing to do with this and are embarrassed. 

Meanwhile, we have more stuff on Breyer promoting his new book, which criticizes originalism and textualism. He supports pragmatism, which some think is not "judge-like enough. But, if there is a debate over text, just reading the text won't solve everything. The problem is not just judges trying to be historians and doing it badly to boot.  

Justice Jackson seems sympathetic to some sort of liberal originalism while other liberals also have at times appealed to the text. So, though this is in large part a dissent addressed to the current conservative majority, it is not only about them.  

Breyer's book talks a lot about Dobbs, which overruled Roe v. Wade. One major concern now is the regulation of abortion pills, including under the 19th Century Comstock Act, which was updated, but some ban on illegal abortion pills left in. 

Mary Zeigler, who is an expert on the history of abortion, co-wrote a pending article on the history of the Comstock Act. It is an interesting read. One thing referenced is an over hundred-year booklet that holds up quite well. "The Sex Side of Life: An Explanation for Young People." 

More To Come  [Edited]

Okay. So, one of the updates yesterday (showing the value of posting these things at the end of the day) was an extension to Alito's administrative stay in the Texas border law case:

IT IS ORDERED that the stay issued on March 4, 2024, is hereby extended pending further order of the undersigned or of the Court.

Others noted that the stay notice wasn't on the website soon enough to clarify that the Texas law never went into effect. At best, it came on a few minutes late. Still, it seemed okay, especially the lack of an end date. Okay then.

This afternoon, after the oral arguments, a new joker dropped. The Court vacated Alito's stay in the two related cases. Now, the Texas law could go into effect, even though it appears clearly to violate federal power over immigration. 

(See here.  The links on the "Opinions Relating To Orders" page at first didn't work. They do now.) 

The order is unexplained. Barrett (with Kavanaugh) tries to argue they are reasonably letting the Fifth Circuit act. Steve "Shadow Docket" Vladeck pushes back. 

Sotomayor (with Jackson) dissents strongly, in part calling out the Fifth Circuit in general. Kagan does so in a softer fashion, emphasizing the foreign policy issue. 

Always something with these clowns. Granting Texas will eventually be stopped here, the Fifth Circuit still (again) is being allowed to cause a lot of mischief.  It's bullshit.

ETA: The Fifth Circuit now scheduled a hearing for tomorrow morning.  We will see what happens then. 

(Or before. I hold to the below.)

But, this should not "impress us much" as the old song goes. As Sotomayor noted, the Fifth Circuit has been gaming the system for quite some time. As each dissent notes, the law is crystal clear here in a particularly sensitive area. 

So, maybe, this time, eventually, the Supreme Court pushed the Fifth Circuit to act. Until it is clownish again. 

And, this all is not painless. Mexico already responded, rejecting the ruling. It is a foreign policy embarrassment. It encourages other saber-rattling.