Texas Restricting
I started this blog in the middle of the first Bush43 Administration. Various shenanigans going on now, including mid-decade redistricting to obtain partisan ends, went on back then, too. A feeling of deja vu.
A 2-1 Fifth Circuit opinion provided a surprising win for the Democrats when the mid-decade Texas redistricting (which led to a retaliatory California effort) was struck down as an illegitimate racial gerrymander. Trump Administration shenanigans were involved. Their incompetence strikes again.
The Supreme Court earlier held that political gerrymanders are non-justiciable in federal court. The Rucho opinion ended a 4-4-1 stalemate where conservatives wanted to prohibit such appeals and liberals tried to get Kennedy to agree to join them the other way. Kennedy, while not giving a firm "no," never gave them that fifth vote.
The Supreme Court left such appeals open in the 1980s. I don't know how much the federal courts actually restrained the process.
I am not aware of any SCOTUS case that struck down a partisan gerrymander (racial gerrymanders were found). The blog discussions against Rucho tend to skip over that part. Not saying Rucho was meaningless. Curious how much it changed things.
There was a very unhinged (and somewhat counterproductive) dissent to the court of appeals opinion. Justice Alito on Friday granted Texas an "administrative stay" on Friday and sped up the briefing. A response is required by 5p.m. today.
Never-ending drama.
Order List
Today's Order List is the last thing scheduled until the beginning of December. It had some interesting bits.
As Chris Geidner noted on Bluesky:
The Supreme Court grants no new cases for merits review in today’s orders list, but it does summarily reverse two lower court rulings in criminal cases—one holding a constitutional error in a Mississippi trial, the other holding the Fourth Circuit improperly ordered a new trial in a Maryland case.
The Mississippi case struck down as unconstitutional a law providing a blanket ability to screen child witnesses. A split SCOTUS opinion earlier upheld the practice, but held it must be "case specific." The Court, in a five-page opinion, left open the possibility that the screen would be harmless error in this case.
The case first came last spring and was distributed to multiple conferences. This suggests some concern. I think the case should have been accepted for full review and oral argument.
The Court also (again) refused to take a case to reconsider the Feres doctrine regarding immunity regarding certain military claims.
Gorsuch would have taken it. Thomas again wrote to explain why he thinks so, too. Sotomayor is sympathetic but argues that stare decisis warrants leaving it to Congress to fix. She makes a good case.
The petition for a writ of certiorari is denied. The Chief Justice and Justice Alito took no part in the consideration or decision of this petition.
Only Kagan and Jackson (and somewhat inconsistently Sotomayor) deign to explain why they recuse.
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The justices will hold oral arguments in the first two weeks of December.
Then, there is an Order List scheduled for 12/15. That is the last thing scheduled for 2025.
Other stuff is likely to drop.
ETA: A reference in my daily SCOTUSblog email warrants an addendum.
plainly, courts “call balls and strikes”; they don’t get a turn at bat
The lower court explained how the Supreme Court allowed them to raise a problem with a trial that was not cited by the petitioners. So, it is unclear whether the justices were right to call them out here.
But, overall, the justices don't just call balls and strikes. The Supreme Court repeatedly gets a turn at bat, including changing the questions raised by the lawyers for appeal.
They also have a lot of power over the batters, including who will get a time at bat, when they will get a time at bat, and what they should do there.
The per curiam quotes an earlier opinion (by Kagan):
In line with our duty to call balls and strikes, we granted certiorari to resolve the split, 589 U. S. ___ (2019), and we now affirm.
Do umpires generally "call balls and strikes" by settling nationwide disagreements on strike calls via official statements of what the rules are?
Meanwhile, here's some more (from me) on judicial review, one of some new essays on that website.
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