SCOTUS Watch

Erratum: I regularly miss errors even for short posts. So, I guess when you have a bunch of people to catch errors, you will keep on finding them. Fulton v. Philadelphia (major case) was edited a third time this week! (You can see the date of the editing if not the timing of each edit.) Seems to be a few extra edits this term.

Order List: One pet peeve of mine is that the dates of scheduled summer orders are not put on the calendar on SCOTUSBlog (I flagged this in an email to them a few years ago and got an answer that they only do it for scheduled orders; but these are!) and SCOTUS itself. Well, I happened to look, and see SCOTUSBlog does it now! I emailed SCOTUS. Maybe, they will change in a few terms. Order list scheduled for next week.

Book: Dangerous Ideas: A Brief History Of Censorship in the West, From the Ancients to Fake News is sorta relevant given the job of the Supreme Court. Covers a lot of ground in interesting fashion with a light touch at times. Helpful summary. Last chapter on current times probably can be a bit shorter. For some reason, only has one (risque) photo. 

Late Night Fun:  West Coast baseball (Mets continue to lose, but maybe their fans can have some sympathy for the Padres, who have been in a nosedive recently and now are tied with the Reds for the Wild Card slot) is not the only thing that was happening late last night.  

This entry was originally posted at 10:10 PM last night, on the (by now repeatedly wrong) assumption that nothing else was going to happen. Usually, late night action these days tends to be to give liberals time to write out their dissents to Friday action.  So, this time was a bit different. 

The justices (or whatever the Trump appointees should be called; their court of appeals slots were to me legitimately filled -- though Kavanaugh's confirmation there was not totally  without issues -- so "judges" seems okay) might be on recess, but the court action continues to occur.  There was a bomb threat this week in D.C. and the Supreme Court building (judges not there) was evacuated.  And, briefs continue to flow.

Again, Amy Howe is a useful resource.  She discussed the continuing fight against eviction moratoriums.  But, the late night action was related to ... well, I'll let her tell you:

The Biden administration on Friday afternoon asked the Supreme Court for an immediate reprieve from having to reinstate a Trump-era program known as the “remain in Mexico” policy, which requires asylum seekers at the U.S.-Mexico border to stay in Mexico while they wait for a hearing in U.S. immigration court. Telling the justices that the lower-court order directing the administration to restore the program “threatens to create ‘a humanitarian and diplomatic emergency,’” Acting Solicitor General Brian Fletcher urged the Supreme Court to block the order, which is otherwise scheduled to go into effect early Saturday morning.

As you might recall, we have an "acting" SG because current law requires someone fill in pending confirmation of Elizabeth Prelogar. [This is a whole complex issue, including who is allowed to be appointed as an acting office holder, one that led to a lot of controversy during the Trump years to those who paid attention to such things.] As Amy Howe noted on Twitter, welcome Brian Fletcher to the shadow docket.

One complaint has been that the Supreme Court under Trump in the eyes of some (raises hand) too often interfered with pending litigation, granting stays to lower court limits on executive actions. However, here the 5CA refused a stay and the district court ruling is a very dubious reading of the law. And, the Roberts Court policy of letting executive power stand has a "what is good for the goose" quality:

Fletcher closed his filing with a pointed reminder that, during the Trump administration, the court “repeatedly stayed broad lower-court injunctions against Executive Branch policies addressing matters of immigration, foreign policy, and migration management.” The court should, he argues, “do the same here.”

Well, Justice Alito (circuit judge of the 5CA) granted a stay of the district judge's blocking of Biden's policy until Tuesday at midnight. This would allow the full Court to consider the matter. Also, the states challenging the policy should reply to the federal government's brief by five p.m. on Tuesday. 

Expect more action next week.