SCOTUS Watch: Order List (and Bit More)

After a brief order on Friday, I thought maybe today's Order List would be particularly boring, but not quite. It wasn't like exciting, but it was over twenty pages. If mostly catching up end of year/new year refusals.

The U.S. Sentencing Commission is an independent agency in the judicial branch of government created by the Sentencing Reform Act of 1984. Congress enacted the SRA in response to widespread disparity in federal sentencing, ushering in a new era of federal sentencing through the creation of the Commission and the promulgation of federal sentencing guidelines.

Time for another Sotomayor statement (joined by Barrett this time), where she accepts a case should not be granted since that requires a higher test, but is concerned about something.  It has been years now (so bad, but starting to be accepted) of the Sentencing Commission not having a quorum.  Breyer loves sentencing guidelines. It's now a family business since the one person still there is his brother.  

One blog that is off my list that is about sentencing issue not surprisingly has flagged this and added it to his targeting (selectively) of Breyer. I'm fine with the criticism to some extent, but obviously at this point, it is a joint effort of avoidance. So, it is not just Breyer.  I was not along in saying this and him ignoring it is part of the reason I have stopped commenting at the blog. Also, a couple people "in the know" commented that the net effect has been limited. I don't know. But, yeah, that adds to things.  

Three cases were also taken for argument (doesn't seem like anything too notable) and you know the usual stuff.  Later, the multiple oral arguments scheduled this week began.  Sotomayor still took part remotely.  Will she just do this forever as a sort of self-isolation?  I can relate.  Mark Sherman, SCOTUS reporter for AP, notes Gorsuch alone is not wearing a mask during the Monday orals.  Troll.

And, it was announced that one or more opinions will be handed down on Thursday.  Meanwhile, we wait to see what they do with the emergency vaccine non-mandate cases, Trump issues, and more.  Sigh.  Meanwhile, some lower temperature orals. 

(Below was written after an earlier draft of this message; I updated and pushed the publication date up.)

After this was written, an miscellaneous order was dropped separately for whatever reason.  It was a request for stay in a pending [arbitration] case, which Roberts referred to the Court (suggesting it is of mild interest at least).  Rejected, as normal.  Likewise, as normal, no discussion, even to provide the basics.  

You can look up the docket number and the briefings can provide some detail about the case.  

... and on, Tuesday, Breyer (near Gorsuch) also is remote!  

This last part was added and originally it wasn't clear why he didn't take part.  Perhaps because they saw the comments or just as a matter of delay, it later was noted that the issue was that Breyer had a false positive.  The press office passed it along to reports, but it would have been better if they posted a message (like they did when Kavanaugh didn't take part).

So, he didn't take part as a matter of discretion. No clarification regarding Sotomayor.  Another bit of clarification I didn't add before was an edit of the transcript for one of last Friday's oral arguments. 

Gorsuch is now reported to have said "hundreds, thousands"  (comma/not "of") in reference to deaths by the flu each year.  The assumed larger number was used to ridicule him though his comments didn't need that to challenge his arguments.  

Meanwhile, conservatives have had a field day on some thing Sotomayor said.  My overall thought was it shows that justices should be careful trying to cite too much fact specific material when a more vague basic argument is enough and probably more appropriate (they are not fact findings).   As cited here, this also pops up in written opinions.  

Sotomayor could have correctly said that the number of children hospitalized with Covid-19 is at a record level, and she could have correctly said that the number has spiked in the last month as omicron has spread. But the claim that "over 100,000 children" are in "serious condition" is just false.

I cite here Daniel Dale here on specifics, since he is reliable (if in my view at times perhaps overcorrecting), and regularly reliably calling out conservatives (had a field day with Trump).  

As he in effect notes, her wider point is correct.  That to me is the bottom line here.  She had an overall argument and some single fact doesn't change it.  People are going to get specific things wrong from time to time.  The bigger picture is what we should be particularly concerned about, while it's fine to correct details. 

There is a lesson here -- be careful, both on the bench and off it.