SCOTUS Watch: Justice Jackson Has Her First Dissent

“Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kind of things that do not seem to people political or partisan, by not behaving as though we are just people with individual political or policy or social preferences,” Kagan said.

Justice Kagan spoke at a conference of judges and lawyers, trying like Sotomayor did in another event before Dobbs to retain respect for the Court.  Sotomayor had shades of Breyer, telling people you have to stay positive, even if you want to fight for change. I have not seen the video, but seems to have a slightly different vibe.  

I re-read Eric Segall's Originalism As Faith book, which I own, after skimming his Supreme Myths  book in the library a few months back.  I do not agree that the Supreme Court is not a "court," especially since he was not specifically talking about this one.  It very well is not acting like a good one.  And, that is a major problem.  Term limits won't solve it.

(Again, I'm fine with them. Good idea.  Sane idea.  And, I agree with the op-ed that it probably requires a constitutional amendment. That sort of addresses another fear -- that term limits will be seen as a way, mostly by itself, to lower the temperature, and nothing else really will be done.)  

The second book does more to address the reality that his preference of very limited judicial review can have problems with protecting minorities. The first book simply did not address hard questions, other than the usual "I'm consistent" bit on abortion, which recently he seems to have changed his mind about anyway.  The second, however, has issues, including again basically exaggerating the lack of "originalist" reasoning in certain cases or making shoddy mistakes like calling Griswold a plurality opinion.  

But, you are talking to the choir regarding the shoddiness of originalism. The whole enterprise is ridiculous. It also focuses a lot on 1787 and a bit on 1868 as if that is the only times when constitutional action took place.  One thing missed by the book, however, is that originalism claims to be an overall principle. That is, it isn't just for judges.  So, and Segall admits his way won't happen so pushes for honesty, judicial restraint isn't enough there.  Legislators as much as anyone else have to apply the Constitution sensibly.  Using what we know today.

The Trump Administration asked #SCOTUS for stays of district court injunctions in immigration cases 12 times from 2017–21. The Court granted *11* at least in part (but ultimately affirmed only one policy on merits).

Between this and MPP (which U.S. won on merits), Biden is 0-2. https://t.co/207stczrvE

— Steve Vladeck (@steve_vladeck) July 21, 2022

The Supreme Court decided to give Kagan an immediate example with another shadow docket ruling. You can read about it various places. Ultimately, a Texas district court judge (again) handed down a horrible decision restraining federal power, applied across the board, and the Supreme Court left it in place.  They will hear arguments in December, but we saw how that played with SB8.  

As noted  by the Washington Post:

In September, the Department of Homeland Security directed U.S. Immigration and Customs Enforcement (ICE) officers to prioritize the detention of recent border crossers and immigrants who pose a threat to national security and public safety, and to consider giving a break to immigrants with mitigating factors, such as farmworkers picking crops and grandmothers caring for American children.

Prelogar said the Supreme Court should at least limit Tipton’s order to Texas and Louisiana. Some justices in the past have criticized district judges for imposing nationwide remedies. “For most of our Nation’s history, a suit like this would have been unheard of,” Prelogar wrote.

The Solicitor General argued the whole thing was outrageous, and it is so much, as shown by the fact Barrett joined the liberals supporting a stay.  But, you need five for a stay. So the men beat the women here.  The order didn't explain reasons, neither side did (have to practice what you preach, Elena), but tossed this in, which almost came off as a troll:

The Solicitor General suggested that the Court may want to construe the application as a petition for certiorari before judgment. Doing so, the petition is granted. 

Perhaps, the author of the order is a fan of Princess Bride.  Anyway, this whole thing brings to mind the whole issue of national injunctions (which again conservatives selectively seem not to mind about) and the power of a single judge to apply them. The legislative change where injunctions would be assigned to a three judge court in D.C.  sounds appropriate.

===

Meanwhile, the House of Representatives passed a bill (with a lot of interesting findings) supporting contraceptives (eight Republicans joined)  and same sex marriages (forty-seven; this one likely will pass Senate).  The second involves federal benefits and recognition, and tosses in discrimination by race, ethnicity, and national origin. To toss it in there, good opinion piece against Dobbs by a male minister.  

The same sex marriage (and more) bill is an important statement by our national legislature in support of equality.  It is a reverse DOMA.  Congress has power under Art. IV to rule upon full faith and credit rules as well as a general right to regulate federal benefits. Only a strong state rights' position would hold what it did was unconstitutional.The protection of contraceptives is wider, though the bill spells out its backing.  

[ETA: The conservative Republican candidate for New York governor with an openly lesbian  running mate voted for the marriage bill -- sorta hard for him not to do so -- but voted against the contraceptives bill.  This made him basically par for the course regarding New York Republicans in the House delegation, but is a rather clear signal about what he stands for when people decide to vote this year.]

===

Welcome to the Supreme Court, Justice Jackson.  It is basically as expected that the first open decision you make is a dissent.

Another order dropped that split apart two affirmative action cases.  The reason is clear, if not expressly noted: Justice Jackson will recuse from one (she did not take part in the Harvard part of this order) as she said planned to do.  The likely result will be the one she will take part in will be decided 6-3 (or whatever), and the result will apply to the other per curiam. 

When Sotomayor recused in a case involving the Electoral College, this is what they did.  Anyway, three orders this week. Busy!