Order Day

The Supreme Court released an order list on Monday that was mostly mundane. The one exception was a dissent from cert by Justice Sotomayor in a death penalty case. I'll wait on that since two executions are scheduled later this week. Mark Joseph Stern (of Slate, sometimes a tad over the top voice) summarized one order on Twitter:

The Supreme Court vacates a lower court decision that had blocked the Trump administration from approving work requirements as a condition of Medicaid coverage. The Biden administration revoked approval, so SCOTUS says the case is moot.

Later on, a separate order (with the three High Federalists dissenting) on the "emergency docket" (shadow docket) -- again thanks to Amy Howe for adding details -- rejected another attempt to put on hold a military vaccine requirement. One thing flagged by Mark and others is that the claims in part make political opposition to the mandate into a religious claim:

I find it difficult to see how a fundamentally partisan hostility toward the COVID vaccine can form the basis of a valid religious objection. But Thomas, Alito, and Gorsuch are the philosopher kings, not me. https://t.co/owrTHhPLOP pic.twitter.com/nn5fggMuMc

— Mark Joseph Stern (@mjs_DC) April 18, 2022

The politically motivated or at least timed nature of the "religious" claim is notable if we still actually care about "sincere" being a check on religious liberty. A law professor once flagged it is. Uh huh. In practice, it has little teeth, mostly applied somewhat ad hoc in patently dubious claims. 

Maybe, this is one such claim, though the district judge (religiously?) seems not to think so. But, I think that is likely a limited guide, especially in these times.  You take what you are offered, but me personally, I think compelling state interest and public interest (such as public accommodations and here the military) should be major factors.  

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Religious faith alone is being used to broadly and the net result are arbitrary lines (see the Hyde Amendment).  This sort of blows into  Taking Back the Constitution: Activist Judges and the Next Age of American Law, which is discussed as part of a symposium on the blog he sometimes post on without (even when the blog had them) allowing comments.   

Most of the book is familiar stuff about how conservative judges operate, including how originalism is a conservative "shibboleth" (one of those fancy words ... turns out the idea is that two ancient tribes were fighting and they said that word differently ... so it's a sort of code word to see who your friends are) and so on.  

The book also seemed almost too optimistic about the limits of judicial power (this was before RBG died but it surely was a possibility to have 6-3 Court, which would change the dynamic).  It did seem to assume abortion rights were on the way out -- even with a 5-4 Court -- though you know, it wasn't seen as HORRIBLE that it would happen.  Guess there is a certain matter of fact about that, but you know, would a woman be so blase?

Still, overall, the first part is useful, if somewhat boring ... since I'm familiar with the whole thing.  The last two chapters were more interesting since they provided some possibilities for progressives in the future.  A basic approach being a sort of popular constitutionalism where the people overall say what the Constitution means.  If "health care is a right," well maybe it darn well should be.  Federal courts aren't god.

The book didn't really cover the next step -- what would happen if courts challenged this?  It suggested that local governments might accept it, which would make it "law" in practice.  The book also suggested some sort of popular constitutional convention.  This would at least put pressure actual governments.  

I saw a discussion on C-SPAN of A Constitution for the Living, regarding a thought experiment of actual conventions happening every twenty years or something (taking Jefferson's idea  of constitutions being for the living and running with it).  Sounds interesting though the library doesn't seem to have it.  Like the idea of fixing the Senate without amendment, this all is a thought experiment, but so was overturning Roe/Casey not that long ago.

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There are a few arguments (they seem like technical issues, but surely, none of these cases have no effect ... well most of them, at least) this week. There is also an opinion day on Thursday.  We will see how that goes as does two scheduled executions.