SCOTUS Watch: Order List

The fact that the Supreme Court's Order List (last scheduled action until later in the month) was eighteen pages flagged further writings. 

Thomas dissented with Alito regarding an interstate dispute the Court avoided even to accept for decision. As the dissent frames it:

The plaintiff States allege that the defendant States are attempting to “dictate interstate energy policy” through the aggressive use of state-law tort suits.

Those two justices have shown some consistency in opposing that approach, which they argue ignores the Court's duty to settle a question over which they have some special responsibility. 

They might have a point, though the Court has had this policy for over fifty years. The Court has noted in the past that often the disputes did not require them to use their original jurisdiction power since there were other ways to handle things. Sometimes, it is not warranted for procedural reasons. 

It also is an avoidance tactic. The Court could simply allow the filing of what is called a "bill of complaint" and then, without comment, reject it on the merits. Many of these disputes are meritless policy-laden complaints, including during the 2020 election controversy. A back of the hand response is understandable, if somewhat unsatisfying. 

It would have been helpful if the Court provided an explanation. It is sensible not to require them to do that for the thousands of appeals they do not take. OTOH, for the much smaller subset involved here, with two justices specifically dissenting on principle, it might be different. 

Thomas (with Gorsuch) also dissented in a cert denial involving disparate impact discrimination suits. 

The true news was two cert. grants, particularly one concerning banning conversion therapy for minors as applied to licensed therapists. Or, you can say:

Issue: Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the free speech clause of the First Amendment.

A loaded summary. The laws do not apply to all "counselors" (e.g., unlicensed religious personnel). Also, regulating medicine will regularly limit what people can say, including based on medical knowledge. For instance, informed consent laws. 

There is also the framing about how a "Christian" consensually wants to obtain certain therapy, suggesting it is some sort of free exercise issue. The case involves minors, limiting the consensual nature, and there should not be religious exemptions to neutral health regulations. I worry about this case.

(More on how Thomas, Alito, and Kavanaugh got a fourth justice. The case will be heard next term.) 

Gorsuch and Barrett didn't take part in the decision in two cases without saying why. Only liberal justices deign to tell us that. And I don't like it.

Amy Howe, as usual, has more.