Order Day

The Amy Comey Barrett hearings starting on Monday notwithstanding, Monday was a governmental holiday. So, the Order List was released by the Supreme Court on Tuesday. Another constitutional appointment conflict will be reached regarding patent judges. 

Justice Clarence Thomas wrote a statement regarding the denial of review in which he agreed with the Supreme Court’s decision not to take up a case but argued that, “in an appropriate case, we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.” 

Tuesday and Wednesday involved a few oral arguments, including an interesting case involving the reach of the Fourth Amendment in a case where the police shot someone but she managed to flee the scene. Was this a constitutional "seizure" for constitutional purposes. As the telephonic arguments were ongoing, you could switch and listen to day long hearings for the latest not quite legitimate Trump nominee to the Supreme Court. A lot of b.s. there, including her repeatedly assuring us she had no agenda.

Meanwhile, on the shadow docket, the Supreme Court with only Sotomayor dissenting (or explaining herself) on the record, stayed an injunction of a plan to end the census count. The new announcement is now that things will end on October 15th. Sotomayor appears to have made a good case that the stay was inappropriate given the strong case is not present to intervene.  She also noted that even if only a small fraction (maybe less than one percent) of field work is to be done (though that is a factual issue), that could be hundreds of thousands of people particularly of minority groups. 

Some were appalled at the move by the Supreme Court here, seeing it as a basically illegitimate move to enable Trump's screwing with the census count which has implications both in congressional apportionment but for allotment of resources.  Again, I think Sotomayor is probably right, but also as noted I am a census enumerator.  The count seemed about done in late September.  I question how horrid it is that now it is being finished mid-October.  But, Sotomayor notes that even a small fraction matters and in 2010 that fraction was seen as warranting additional action.  Plus, overall, why should one not trust this Administration at all?  That is sound policy.

Still, on balance, this very well might not be a horrible result. At least relatively so.  One can only guess what is involved, including the mindset of Breyer and Kagan, since the justices do not deign to explain themselves. For instance, the administrative discretion allowed here can help the Biden Administration.  Rick Hasen of Election Law Blog suggests (again) there might be some horse trading involving one or more other pending cases.  After all, net, what value is supplied if the dissent is a firm 5-3 over one dissenter and in theory others possibly (though this is not how people see it) dissenting quietly?  

So, mixed bag.  The confirmation hearings will continue.   

More Census News:  The election might in the long run make this all moot, but the Supreme Court took Trump's appeal regarding not counting undocumented immigrants for purposes of apportionment. This not only violates the "person" rule of the 14A, but below was found to violate statutory rules.  Unclear what will come of this.