The Court put out their schedule for the March argument, which is promoted as a low key set, but it does have a few important matters. For instance, there is a college athletics case of some note. Meanwhile, the change in administrations has already led to changes, with the acting solicitor general asking them to remove cases related to the border wall and asylum policy. Action regarding the PPACA case has not been reported yet though the Trump opinion there is surely not the same as the Biden one.
(SCOTUS then agreed in their Wednesday orders: "The motions to hold further briefing in abeyance and to remove the cases from the February 2021 argument calendar are granted." They also granted cert in another case, specifically noting that it will be assigned for argument in April, a specific scheduling move that they do not usually make.)
Bloomberg News (Twitter) summarized an order that dropped as February opened this way: "The Supreme Court lifted an order that would’ve required prosecutors to retry a murder case by May 4 or release the defendant, after the state cited Covid prompted trial delays." The order itself didn't explain itself, just a reference (usually telling in itself) that Sotomayor dissented from it. If SCOTUS is going to single out one case like this, during Winter Recess at that, maybe they can say why. But, this lack of clarification is old news by now.
"My passions and beliefs are likely shared with the bulk of you, but certainly not all. And sometimes the smallest matters can divide loved ones for too long. Let’s pledge to not let politics divide THIS family, and learn to speak more gently and knowingly across the divide.”Ginni Thomas privately apologized to her husband's clerk family for causing a "rift" arising from her strong pro-Trump advocacy, particularly involving the January 6th protest. Let's not a "small" matter like this cause trouble! She's pro-unity. It is not like she is saying she was wrong on the merits. But, the fact her advocacy -- which has been going on for years, including meeting Trump -- apparently crossed some line here suggests that 1/6 is rather sensitive. Good reporting of the details.
SCOTUS flagged on its website (not sure if this was a thing last term) of a possible opinion day on Wednesday. Last time, that was just a "dig" -- dismiss as improvidentially granted (for some reason they usually don't explain). This time there were two (a third was just a "see the other one") opinions, including a chance for the Robert/Kavanaugh wing of the conservatives to show themselves. This was a technical case to determine if a benefits dispute was granted judicial review pursuant to the relevant statute. Justice Sotomayor for the five said "yes," while Thomas and the others (included the newest member, here taking part) dissented.
The other cases involved rules regarding keeping a property dispute arising out of the Holocaust out of U.S. courts. The oral arguments suggested the cases raised various issues that concerned the justices, but CJ Roberts for a unanimous bench avoided some of them, finding a way to keep this one out. Prime sentence: "We would not place so much weight on a gerund." The ruling appears reasonable, even if you might find fault to some degree.
(Some wondered why SCOTUS took a break from Winter Recess for a pair of not very compelling cases, but I basically seriously see it as a way for them to get rid of some business while showing the world they are just ordinary folks. Don't bother us, we are just reasonable hard working judges! There are old lingering cases due to be decided and this cleans the slate, the remaining ones perhaps a bit more tricky to handle. And, now they can just drop the cases in. No one even has to show up.)
I dropped this shortly before 6PM. Let's see if it was too premature. If something else comes up, will add.
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Uh huh. I double-checked hours later and nothing new came. But, by now it is clear that would not necessarily settle things. Around 11 P.M., the Supreme Court handed down an order that overruled California's ban on indoor religious services, upholding (for now) the occupancy limits and ban on singing and chanting. Note the time stamp on the SCOTUSBlog summary. The summary from the more strident voice at Slate adds additional information, including why religious services in particular might concern California in particular. Why different rules for "California’s powerful entertainment industry " [to quote a concurrence that in general has five votes] is treated differently and so forth.
The Supreme Court (yet again) used their "shadow docket" to overrule a lower court without applying traditional rules that only does that is extreme cases. They did so in the middle of the night (again) without taking time to even in an accelerated way (compare Pentagon Papers etc.) to provide some form of full review. And, it did not explain itself, though nose counting will get you five votes this time. This is important: Barrett (with Kavanaugh) provided her first on the record comments in such a way that some accounts suggested were somewhat middle of the road. But, she basically AGREED with the Gorsuch trio except for a limited point regarding anti-religious bias on the current record.
[Her reasoning on how to flag wrongful targeting of religious institutions is not promising since she doesn't address the argument that even if a movie set is treated differently here, it is not the same thing because they aren't the same -- e.g., it is not realistic to require everyone who goes to a religious service to test three times a week or something. As Leah Litman, showing that blog still has life after Trump, notes here, basically notes, "identifying distinctions between religious institutions and
non-religious institutions that don’t really go to the reasons why a law
applies to them in the first place" is bullshit.]
What a lower court is required to do here still is unclear since the three put forth a "statement" as compared to a more normal "concurring in part" or something. Roberts added a separate concurrence restating his appeal to state discretion, but noting here it "appears" not to be warranted other than regarding certain limits. Alito separately would "would stay for 30 days an injunction against the percentage attendance caps and the prohibition against indoor singing and chanting."
But, the Slate article seems correct that a shift of the law on religious liberty is apparent. Anyway, Kagan is pissed, including by the lack of clarity ("No one can know, from the Court’s 19-line order, exactly why.") Shadows are hard to grasp, even if they seem better in some cases than more concrete results that have broader effects. People like Scalia railed against policy making courts ruling without clarity. These cases not only often have bad results, they do not provide clarity. The Supreme Court has a limited docket, usually picking cases from states to clarify disputes. Overruling lower courts and inhibiting state policy like this is bad.
Kagan might "respectfully" dissent, but she is clearly pissed off, basically going what some might say "full Sonia":
I fervently hope that the Court’s intervention will not worsen the Nation’s COVID crisis. But if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors. That would seem good reason to avoid disrupting a State’s pandemic response. But the Court forges ahead regardless, insisting that science-based policy yield to judicial edict.
Sorta be better if the majority didn't turn on three tainted seats.
ETA: It seems somewhat relevant here, especially when many responses are going to focus on the religion of the majority members here, that Justice Breyer's daughter (Chloe Breyer) is an Episcopal priest. I have referenced her book talking about her religious education in the past. She supports interfaith efforts and might also be called "Dr. Breyer."
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