SCOTUS Order List

There are three basic things about today's Order List.

Kim Davis: Denied

Kim Davis's case was rejected without comment, even though some attention was given to it as if there was a real chance it would be used to overturn same sex marriage. Lots of people, including Mark Joseph Stern (gay, married, strongly anti-SCOTUS), were like "duh." See also, Chris Geidner (gay). 

As Steven Vladeck previously noted (linked here):

Third, there was a surge in media discussion about the pending cert. petition by Kim Davis, and what it means for the future of the Supreme Court’s 2015 ruling recognizing constitutional protection for same-sex marriage in Obergefell v. Hodges. (The surge seems to have been caused by the fact that the Court ordered the respondents to file a response to Davis’s cert. petition after they had waived their right to file such a brief. But such a move requires a request from only a single justice, and is in no way predictive of a grant of certiorari.)

This was one of those cases where a juicy-sounding case was on the docket, and too much attention was given. For instance, the Supreme Court doesn't grant a case, and a report suggests they decided the merits of the issue.

I am not going to disdain the average person being concerned here. The stakes are high, and people have a thin understanding of things. People aren't experts here. It's a learning opportunity. Anyway, hopefully, we are done with Kim Davis, who has been around for years. I have my doubts. 

Election Case Taken 

The Supreme Court granted review in a case for which the Fifth Circuit opinion was deemed "bonkers." 

The general idea appears to be that this was a "too much for the conservatives, at least two to three of them" Fifth Circuit ruling.  

Alito, Gorsuch, and Jackson did not take part in a case each. Jackson alone explained why. She and Kagan have consistently done that. Sotomayor, less so. Conservatives, never. Yes, this still bothers me. 

Gorsuch/Native Americans

Kagama helped usher into our case law the theory that the federal government enjoys “plenary power” over the internal affairs of Native American Tribes. It is a theory that should make this Court blush. Not only does that notion lack any foundation in the Constitution; its roots lie instead only in archaic prejudices. This Court is responsible for Kagama, and this Court holds the power to correct it. We should not shirk from the task. 

Gorsuch used a non-grant to dissent and provide some broad woke comments about our historical mistreatment of Native Americans and the Supreme Court allowing Congress to have plenary power over their affairs. Thomas joined him.

Thomas has gone his own way regarding Native American issues, including the proper rules for criminal justice. He has not been as woke on the merits as Gorsuch, which threw a few people.

Gorsuch has a point, though it's unlikely the Supreme Court is going to shift gears after over a hundred years. They won't frame things quite as crudely as some opinions back then. But changing over a hundred years of congressional discretion here?

I think not. Gorsuch's Native American stuff sometimes appears a tad too precious to me. Still, it is worthwhile to press the envelope given how much baggage there has been here. 

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Justice Jackson also dropped another order regarding the very accelerated SNAP litigation. To hint at the speed here, an appellate opinion was dropped late yesterday (Sunday). Legislatively, also in flux.