SCOTUS: Order Day

We had big news today but there were various other notable things in today's Order List. There were also two oral arguments, involving disclosure laws (current Court worse on this than the Kennedy/Scalia version) and a chance to get the feds to at least partially cover payment to clean-up a toxic waste dump of Guam (170K, no vote for POTUS, only a non-voting delegate in Congress, and maybe a t-shirt). On the former, Barrett was asked to recuse, including by one of the people supporting a court expansion bill.

Okay. Let's deal with some of the other stuff in the Order List.  There was a per curiam without a dissent that was one of those error correction cases that the Supreme Court occasionally takes.  Justice Sotomayor, for one, has flagged that sort of thing as liable to be biased toward prosecution cases. Back in 2016, there was already a clear trend toward that in habeas cases.  This one at any rate flagged what it held to be a mistaken interpretation of being "in custody" in a habeas dispute that below helped the defendant. 

The other written opinion was a dissent by Alito (and Thomas), whose position on the now decades long practice of avoiding taking disputes among states.  He very well might have a point that the Constitution warrants at least minimally substantively taking such cases, one of the jobs of the Supreme Court being to handle disputes among states.  For a different view, see here (I comment too).

The Court did not accept a state challenge to the Biden Administration's change in policy on the "public charge" rule, in part for not going thru the Administrative Procedures Act.  But, in an extended paragraph, it flagged the states still can bring a challenge later on.  So, this might be a red flag that Biden might (like Trump did a few times) get in trouble on APA grounds, which makes it harder to get rid of old policies and/or permanently put in place new ones.   

Separately, SCOTUS wanted to know the Biden Administration's plans regarding a more restricted family planning rule that Trump put in place.  Also, a request for comment in another case (Breyer did not take part -- like Alito in another case, this is likely a financial conflict issue).  

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The big news, which was just a matter of time -- especially on the Barrett Court (Roberts supported the punt in the last 2A case) -- was a case taken on this question: "Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment." The original question: "Whether   the   Second   Amendment   allows   the   government to prohibit ordinary law-abiding citizens from  carrying  handguns  outside  the  home  for  self-defense."  

I think after ten years that it makes some degree of sense really that the Supreme Court does more than drop a mostly forgotten punt (the eight person Court stun gun case) involving "arms" outside the home.  We can disagree with Heller and all that, but there were loads of lower court rulings -- with some disagreement -- on the general matter of regulating arms (mainly firearms).  A basic job of the Supreme Court is to provide some basic unity, and they are going to eventually decide this general question.

The basic problem for some is going to be the result.  But, another is the people making the decision.  A tainted Supreme Court, especially given on this issue there is a clear shift on liberal/conservative grounds (Roberts more to the center here) based on those new members. As with the campaign disclosure case (where the state might lose on narrow grounds with a different Court), if such a basic question is decided, we need a Court that we have a reason to respect on legitimacy grounds.  

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There were two other interesting grants -- something about the power of a local government to censure (huh) and a state secrets case, but one that feels like a glaring "state is going to win" grant since it involves active CIA goings on. On other facts, there might be hope that the tainted long rule where state secrets are used to deny justice (including in cases where the stuff is not really secret), but not sure this is a good grant there. 

(The case is the first GITMO case SCOTUS took for over a decade and involves "black sites" and torture.  Plus, here too, just how "secret" things are is rather unclear.  The Trump Administration asked for review and the Biden Administration has gone alone so far.  The cover-up has been something of a bipartisan effort though the Obama Administration did make some effort to bring out in the open reports of abuse.)  

ETA: Also, with COVID distancing and all that, even with them all being vaccinated, it was reported only the Chief Justice will show up at Biden's Wednesday address to Congress (saw a reference to only 200 members of Congress showing up too, at least in the chamber itself).  Probably will be a bit weird for him.