SCOTUS Watch

Affirmative Action

The big thing this week was the two college affirmative actions cases scheduled for oral argument on Halloween, the beginning of the November Sitting (oral arguments).  

The new oral argument style with a two minutes uninterrupted introduction, general questioning, and then a chance for specific justices (in order of seniority) to ask questions already encourages longer oral arguments. These two went on for nearly five hours.  Justice Thomas, for both rounds, has continued his openness for asking questions after years of not doing so.  The telephonic arguments apparently permanently opened up the gates there.

The arguments excite some liberals given that the women liberal justices seem to be if anything more firm this term, Justice Jackson a strong questioner right out of the gate.  Some people are like "what does it matter, they are in dissent," but there is some value apparently (so say in part the sort of liberal law professor types some of these people would normally respect) in spreading the message.  

I don't know how much it will matter in immediate decision making (I think along the edges at least it will), but these things are long term affairs anyway.  Plus, the "end of affirmative action" assumptions are misleading. Race is still going to somehow be used.  If the deciding opinion gives somewhat more wiggle room there, it matters too. 

Order List

Before the arguments on Monday was the usually scheduled 9:30 Order List (after the conference on Friday). These order lists are a collection of various "orders" ("Miscellaneous orders" are usually unscheduled one-offs) of the Supreme Court.  They tend to be banal such as "The application for bail addressed to Justice Thomas and referred to the Court is denied." 

The order lists often have little tidbits (such as asking the solicitor general for their opinion, which makes it more likely the case will later be granted for argument) that court watchers find at least somewhat notable. Others, like some nuance suit that only two members of the Court can take part in, are more quirky. Others make some go "hmm" like why are such and such justices recusing themselves?  A FAQ page would be helpful.

Trumpy Orders

Chief Justice Roberts temporarily held up an order to give some Trump tax returns to the House committee granted permission to see them. Some pointed out that this was merely an administrative stay.  The bottom line (see here) is that this matter has been pending since 2019.  20 fucking 19. 

And, the returns are still not there yet. This is fucking absurd.  It is but one instance of that asshole being able to obstruct justice for years.  This is related to the emoluments issue, which is actually covered by more than one clause of the Constitution. So he not only should not get emoluments from foreign sources while in office, but the only means of compensation is his salary. This is relevant in a recent news story (not really new) involving Secret Service protection and costs applied to his hotels or such.

Sen. Graham's battle to not do what basic civic duty requires regarding testimony to the special grand jury in Georgia over election wrongdoing involving the 2020 election has not lingered as long as the tax issue yet.  But, it has been going on for an extended period of time, involving three levels of litigation.  

The Supreme Court, after a temporary administrative stay by Thomas, rejected him again.  They vacated Thomas' stay this week without noted dissent in an unsigned order.  It did not firmly do so, but they listed the basic limitations the lower court put on the questioning, and then noted Graham still had a right to challenge specific questions in district court.  

Graham has to show up but just what he will answer will be unclear.  I think the constitutional line here is likely somewhat hazy though probably the rule is a bit too generous.  But, I'll say this again, it shouldn't really matter.  He should voluntarily answer.  The whole thing is more game of delay and obstruct. 

The Supreme Court basically did the right thing here. I am wary of them citing the details -- that implies (without full review of a difficult question) that they agree with the limitations -- but it does on the other hand provide a small safe harbor for subpoenas. 

Protest

The big gate that was put in front of the Supreme Court building was removed some time during the late summer. There was  smaller gate still up as I recall. The major reason for the change originally was protests over abortion. And, protesters interrupted an actual argument on Wednesday.

On the live audio -- I wasn't listening since it was a boring case -- you could briefly here it.  Then, it was cut off, as if the person in control of the audio cut off the audio.  Amy Howe later noted that in the final audio that the protesters was totally edited out.   

A conservative over at Reason (Volokh Conspiracy) suggested this would further turn the justices against televising arguments or even maybe live audio. I think overall the chance of some protester coming in (and back in the day, I know of at least one anti-abortion protester interrupting an argument, and it wasn't totally edited out) is not a good reason against that. I don't think the justices as a whole are just on the cusp anyway.

Courts throughout this country and abroad, including supreme courts, have video and the possibility of protests are still present. I doubt one never happened. One or more justices might use it as an excuse, but as with all possible abuses of the privilege, free speech and open government still should win overall in the end.  

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The big thing next week is the Election Day, which surely will have some implications regarding the Supreme Court, the courts in general, and the things they do and did.  Including abortion. Note the Trump taxes order includes this: "further ordered that a response to the application be filed on or before Thursday, November 10, 2022, by noon."  After the election.

There will be orders and various oral arguments, including involving a law that involves Native American children.  

As is often the case, an order was dropped on Friday separately to announce cases were granted certiorari  (cert), which literally means "to make certain."  It basically means the Supreme Court takes a case for full review to take briefs, hear oral arguments, and decide the question with a full opinion.  The cases do not seem too ideological, dealing with patent rights, trademarks, and Navajo water matters.  More "law-ly" cases.