SCOTUS Watch: First the Cases Less People Care About

The voting rights/disclosure cases will be handed down on Thursday. Tomorrow is the Presidential Supreme Court Commission's first substantive session. An execution is also scheduled. But, there were three notable, split, rulings handed down today.  Even if less care about them. 

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Two had the "moderate" conservatives (Roberts and Kavanaugh; Barrett sometimes will fill in here) joining the liberals. Kagan took a patent case. Barrett writing one of two main dissents she had today. The judge who shouldn't be there seemed to spend more passion (multiple footnotes) addressing Alito's dissent, which wanted simply to get rid of the case. 

Kagan writing helped to make the technical issues more readable. And, we are dealing with an important matter: "the  invention  sparking  this  lawsuit  is  a  device  to  treat  abnormal  uterine  bleeding,  a  medical  condition  affecting  many millions of women."  The case split the Court by a vote of 5-4 (4-2 non-tainted) so a basic point here was to find a solution. The outsider should probably look at it that way unless they have some technical interest on the particular patent law issue involved.

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The second 5-4 split of that nature which sometimes will arise involved federal eminent domain power involving pipelines, which also raised sovereign immunity issues.  Roberts wrote the opinion, the dissent focused on the latter constitutional issue.  Using the (for those into this sort of thing) familiar "plan of the constitution" lingo that arises in these case, Roberts explained the federal government had the power there using original understanding.  OTOH, those who care the most on that dissented.  

This case appears somewhat notable since it provides an exception to the expansive state sovereign immunity jurisprudence which in recent years often split by clear ideological lines.  Putting aside that I think the liberals were correct as a whole, we have another exception involving application of the federal eminent domain power.  I'm not really sure why it is clearly different from other powers, such as the Commerce Power, so on some level understand the dissent's sentiments.  Still, you take the limitations of overbroad doctrine when they are available.   

One thing that appears less controversial is that government "authorized the private condemnation of land for public works."  Kelo v. New London upset many since property was seized to give to private groups for a public purpose.  A pipeline is an easier case, but still, this shows that private parties will be involved in takings.  A case involving the contours of Kelo is now being examined by the Supreme Court to see if they want to take it.

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The fear from some is that Alito would have one of the two cases involving election regulations.  We shall see.  He did have an opinion involving the procedures required for the removal of "aliens" with Justice Breyer dissenting for the liberals.  Thomas/Kavanaugh would have simply declared the Supreme Court didn't have jurisdiction.   

Breyer labels the people involved "noncitizens" upfront but then goes back to calling them "aliens" (is this because that is the language of the statute? the Biden Administration has flagged they rather not use "alien").  Breyer notes the issue involved:

The question in this case is whether respondents are en-titled to a bond hearing while immigration authorities engage  in  the  lengthy  process  of  determining  whether  respondents  have  the  legal  right  (because  of  their  fear  of  persecution or torture) to have their removal withheld.

This general issue has arisen in the past and has both statutory and constitutional implications. The broadest argument would be that as "persons," the people here  have due process rights while being detained for a long period of time.  The back-up is that the statutory language leaves open this.  The Roberts Court have shown some concern for the rights of those that fall within the immigration law, but have their limits.  

And More: An amicus was appointed to defend the ruling below in one of the cases taken for review.  

More importantly, only four judges (five need) voted to grant an end of a stay in an important Biden Administration shadow docket affair.  As Kavanaugh, not one of the four noted:

"I  agree  with  the  District  Court  and  the  applicants  that  the  Centers  for  Disease  Control and  Prevention  exceeded its existing statutory  authority  by  issuing  a  nationwide  eviction moratorium."  

But, the Biden Administration said it won't be extended past the end of July.  Kavanaugh (who shouldn't be there) frames this as "only a few weeks" (or a month, you know, framing it differently), so doesn't think intervening now is necessary.  Roberts and the liberals didn't comment.  So, the denial of the stay is 5-4 with a sort of asterisk.  

I have seen some suggestion that unlike some sort of lack of Commerce Clause power or something, the statutory argument is more reasonable. How much is unclear to me.  As a general matter, the longer an emergency of sorts goes on, the stronger an argument that more specific legislation is needed in cases of this sort.  The details are up to debate.