SCOTUS Watch: Alito/Kagan/Thomas

Two somewhat related "administrative stays" (by Thomas and Kagan), which keeps things in place while the Supreme Court examines the case, were dropped this week. The general assumption by court watchers is that this is a standard thing that does not tell us much at all about the merits. 

Lindsey Graham

The first involves the efforts to require Sen. Lindsey Graham to testify to a special grand jury investigating Trump's attempt to criminally interfere with the vote count in Georgia.  The 11th Circuit, a conservative leaning court, agreed with a middle of the road path that required Graham to testify about certain matters.  Graham was given a somewhat generous amount of room to plead his congressional privilege that has never firmly been shown to even apply to a single senator doing his own investigation.

The general sentiments I have here is twofold. 

(1) Sen. Graham has a duty to testify and it's outrageous he isn't doing so.  The constitutional issues there are somewhat complicated but the 11th Cir. provided a fair middle ground. Anyway, it shouldn't matter.  He should voluntarily do it.  

(2) Thomas should recuse himself from all Trump election disputes given the appearance of impropriety.  As noted by more than one liberal minded law type, him not doing so makes his otherwise bland order here look much worse than it is.  

Steven Vladeck, who I usually agree with, on Twitter was more dubious about it being clear that current ethics requirements hold that he MUST do it since this is not a direct Trump case.  I find that overly fine tune parsing.  Vladeck still as I understand it thinks Thomas should as a matter of good policy not take part.  

Kelli Ward

Kagan's order involves the 1/6 Committee attempting to get phone records.  She put a bit more teeth in it by asking for a reply by Friday afternoon.  Thomas just stayed the lower court without a time limit though briefing by both sides has commenced already.  

Again, the docket page (it would be more useful if the order provided a direct link for people who read it on the website instead of needing to input the docket number on the docket page) has the various materials in these cases for people interested. 

One news article summarizes the issue at hand:

She gave the House committee until Friday to submit a response to an emergency application from Arizona Republican Party chair Kelli Ward, who was among so-called “alternate electors” subpoenaed by the committee.

The “alternate elector” plot from the former president and his allies relied on a bogus legal theory involving a slate of fraudulent certificates from key states that falsely asserted Mr Trump’s electoral college votes.

I'm not sure why this specific thing, among all the requests, resulted in this sort of order at this time.  I'm somewhat of the sentiment that it was timed to come down with Thomas' order to show a sense of rough even handedness.  I might be off there, but sorta looks that way.  

Anyway, as requested, the committee did submit a brief challenging the request for a stay.  

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Alito Interview 

We have heard from time to time reporting about justices giving speeches or being interviewed.  Alito has repeatedly been part of this coverage. 

The latest is more grudge Alito stuff, including the idea that leaking the Dobbs draft (which still very well might be conservatives; they surely leaked news of behind the scenes developments ... the coverage, including Thomas' own statements, also were rather anti-Roberts) increased a chance of "assassination."  

An unhinged person did show up outside Kavanaugh's house, but he turned himself in before doing anything, perhaps because he saw that the house was guarded.  Federal judges have been threatened in the past, including a family member being killed.  A judge was murdered when Gabby Giffords was attacked.  

Pending congressional legislation aims to help further protect judges.  It is not likely the leak added to this much, and strong opposition is well warranted, including because of the ruling's threat to women's life and health.  

Alito can't really be taken seriously, but it's appreciated that he is talking openly like this.  We even have video on C-SPAN's website and so on.  It would be nice if justices manage to use the Court's speech page, but hey, it is a form of open government.  And, though his concerns about people badmouthing the Court as the actual thing that is illegitimate is bullshit,  he basically is helping the cause here. A sort of Barbara Streisand Effect.

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Upcoming Affirmative Action Case

There was a conference today and orders will be dropped on Monday. Monday is also the beginning of the November arguments, including the two big college affirmative action cases.  

The cases were originally combined, but Justice Jackson's involving with Harvard led them to be split. So, there will be some overlap, and perhaps some will be satisfied with listening the first case's oral argument with Jackson's involvement. The Harvard case has the additional edge of an argument the policy harms Asian-Americans.

Both cases are still similar.  Both are products of an extended anti-affirmative action advocacy movement. The North Carolina case is skipping a level, in the Roberts Courts tendency in recent years to allow this in ideological cases.  Both are asking the Supreme Court to overrule cases allowing affirmative action (at the very least under current strict but not fatal scrutiny) and making claims it violates federal civil rights law. 

The North Carolina case also makes an argument that affirmative action violates equal protection.  So, one can imagine some frame that a "moderate" path is available that does not totally close off affirmative action (which involves a range of things) but make it real hard to use it in education and maybe other contexts. 

The net thing here is that this is yet another issue where the 6-3 Court will be able to push things toward the conservative side, even further than Justice Kennedy (who allowed affirmative action here in the end) wanted to go.  As a matter of principle, it's how law develops over time. The problem here is twofold: the merits and how this current Court was created.

On racial questions, this is a time old story.