SCOTUS Watch: Order Day/Shadow Docket

And Also: We have a new governor: Kathy Hochul was sworn in at midnight (Tuesday). She should announce her pick for lieutenant governor later in the week. One article noted: "Ms. Hochul has stood out for her affable personality, deftness in retail politicking and demanding travel schedule."

Order Day: Monday was a summer order day, which usually is a nothingburger. But, this time they granted two cases, held over for a while to wait for a related case to be decided.

The timing is curious: looking, both cases were submitted to the Conference (for a second time) on July 1st. There was an order day on 7/2. Why wait until now? The case involves the right of certain immigrants in detention to get a bail hearing, with an added question on classwide injunctions that could limit their rights more. (Professor Leah Litman was on person who covered this on Twitter.)   

The rights, either statutory or constitutionally, has been the subject of a few cases by now.  Justice Breyer repeatedly was on the dissenting side, rather passionately.  So, there is a good chance of this happening again. 

Meanwhile, the orders had various more mundane details, such as "The motion to substitute Richard Roe, authorized representative, as a respondent in place of John Doe Two, Deceased is granted." (The case involves the reach of a discrimination provision of PPACA, here disparate impact on disabled people.)  I also saw Fix the Court note that Alito now is taking part in some case, apparently (though we don't clearly know given current disclosure rules) because he sold some stock or something.

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Shadow Docket: To remind, the "remain in Mexico" policy was that matter that Justice Alito granted a partial hold to get briefing (due Tuesday).  Perhaps, not very surprisingly, the Court reject President Biden's request with only the liberals dissenting.   To quote one reporter, "The Supreme Court’s conservative majority on Tuesday reinstated a Trump-era policy that requires asylum applicants to wait in Mexico while their claims are evaluated by U.S. authorities."

The order said a relevant test was not met, citing 10 pages of a certain case as the "explanation."  OTOH, the dissenting liberals (who at least put their names on record; technically, all we know is five members of the rest voted the other way) said nothing.  Steve Vladeck, the shadow docket guy, continued his criticism of the Court's usage, which as he has noted, shifted considerably as the personnel changed.  It was not always thus.

"#SCOTUS's rejection of the Biden Administration's request for a stay in the MPP case is the 35th decision this Term from which the three Democratic appointees dissented; the 24th on the "shadow docket"; and the 21st shadow docket ruling from which only *they* publicly dissented."

The result is likely wrong, but the bigger problem is the usage over time with limited or no explanation.  For instance, in theory, a stay of the lower court is a special thing, and the Administration not getting it would be sensible.  But, looking at the Trump Administration record, normal practice was not followed.  

See this thread on the hypocrisy of a couple of them in particular, given a national injunction was at stake.  See here too, with more on how this is especially dubious since the Supreme Court usually gives wide discretion on foreign affairs. Worse, argues the analysis, the Court provides no clarity.  I would again blame the dissent in these cases for not providing some clarity too.  It only makes it easier for the majority. 

The conclusion seems to be that results, not reasoning is what is important.  Justice Breyer has ratcheted up his attempts to resist criticism of the Court as arbitrary and/or political.  But, people who you would think are on his side generally are starting to get tough on such reasoning.  I fear he is starting to really getting high on his supply.  His failure to retire has (rightly) bothered people, probably less will be charmed with his goofy antics.  

So, what exactly is the result here? Amy Howe notes:

In Tuesday night’s order, the court added that its decision not to put the district court’s order on hold “should not be read as affecting the construction of that” order by the 5th Circuit, which had emphasized that the district court “did not order the Government to restore MPP’s infrastructure overnight,” but instead only required it to enforce and implement the policy “in good faith.”

The tack-on of that caveat is but a part of the wider whole of the lack of appropriate judicial clarity here. The Supreme Court is supposed to explain itself carefully when it does significant things. They are not supposed to rule with koans. The caveat is important because (this might be missed with some of the commentary) the court of appeals cushions the blow in various respects. How this will ultimately factor in on the ground is hard to say. And, one is right to be pessimistic about this specific circuit making it too smooth for the Administration.

We will see if any more action will happen this week.  There is some chance the Supreme Court will act on one of the eviction moratorium cases.  The national one.  The next execution is scheduled next month.