SCOTUS Watch: Order List

Barrett Article 

Jodi Kantor, who is a good get, has another long-form article on the Supreme Court. The article is geared toward the average reader, providing an easy-to-read narrative and tossing in some interesting details.  

It discusses Justice Amy Barrett (yes, I'm not going to do the no-label thing). The headline has the usual "confounding left and right" bit, while the article shows she is still rather conservative, if not knee-jerk. If her nomination was above board, she could have been a decent in-context option for the Kennedy seat. Instead, she was shoved on late.  

Two liberal law professors whom I like, Melissa Murray (Strict Scrutiny Podcast and cable news appearances) and Michael Dorf (Dorf on Law), are quoted.  

Order List 

A short Order List with two grants. 

Both are relists, one more so, suggesting an ideological nature. The government's brief argues (the briefing is linked to the SCOTUSblog page) that for multiple reasons, there is no compelling need to take this case as one of the few cases SCOTUS takes for full review.

The case involves a crisis pregnancy center, which would make it appealing for multiple conservative justices. Also, a judge below dissented, which provides a flag to invite review. A Trump appointee, even if he at times votes in a libertarian way. 

There is also a GVR, also involving abortion, sending a longstanding dispute back to the lower courts (grant, vacate, and remand). New York supported the move. So, not surprising, but shows the implications of the referenced opinion. 

(If you follow the link, it goes to the docket page, and there is a supplemental brief on the point.) 

So, yes, even in a short, otherwise bland Order List, there is something notable. Tends to be. 

Exaggerated Agreement

Two legal Substacks challenged the suggestion that the recent slew of agreements should be taken to mean the justices are not ideologically divided. 

We still have some controversial cases left. There is a tendency to backload such cases to the very end of the term. The emergency/shadow docket is repeatedly ideologically divided, including all the Trump cases.

The docket is also carefully selected, with the justices having near total opportunity (except for some election cases) to choose what they want. They can pick cases with certain fact patterns and legal issues. Sometimes, they goof, leading to multiple DIGs this term ("improvidently granted").

The justices also carefully decide the cases, which helps explain why it takes so long to write certain opinions. Divisive issues are sometimes avoided. 

The divisions are sometimes not totally papered over, as shown by concurring opinions. The justices in a few cases are firmly divided in reasoning. Other times, one or more justices flag issues that the opinion avoids, including possible routes for the future or attempts to limit its reach.  

Joan Biskupic flags a concurrence in one of these cases by Thomas with Gorsuch that tosses in a dig at DEI referencing a brief by a group started by Stephen Miller. Gorsuch, team libertarian. Yes, separate opinions have a personal flavor. 

The selection of a few key cases, this term was less hot-button than some others, is a prudential approach. The Supreme Court used to take many more cases. The current Court has more power to control its docket. It is also much more active in the shadow docket, including (much to Jackson's annoyance) granting relief in pending cases. 

This is inside baseball stuff. It still has some rather important consequences. More opinions on Wednesday. Hot-button cases coming up.