Supreme Court Watch: Title 42 Edition

"Title 42" refers to a specific section of the federal code regarding the power to block immigrants for health reasons. The specific reference in recent years involves doing so with respect to COVID. It is controversial and argued to be basically an excuse to have a more strict entry policy.

The whole matter is complicated with various moving parts.  The question often came up during Psaki's press briefings and likely still does though I'm less interested in watching her successor.  It also is the subject of multiple lawsuits, which results in various complications with one court blocking it while another blocking an attempt to wind it down.  

Chief Justice Roberts earlier this month put in place an "administrative stay" regarding a court blocking it, on the petition of some states (yet more state usage of the courts to fight policy, which has gone in third gear or whatever the metaphor is in recent years).  Some carefully noted this was just a procedural move.  For instance, Sotomayor this week lifted her temporary stay in a more minor dispute involving public trial questions.  

[I will continue my campaign here regarding the importance of clarity. Sotomayor should have briefly explained what the case was about and why she chose to refuse the stay request.  If something is going to be in the lightly used "order list" page -- not some catchall order list or mere docket tick-off -- we should get some clarity on what is happening.]  

Nonetheless, the people might not be too surprised (to the degree they pay attention or are not just lost -- the number of moving parts, in this case, makes that quite possible) that the Supreme Court DID grant states' request for a hearing.  The net result might just be to kick the ball forward -- and cynics might argue [see the first link] that Biden is not overly in a rush here specifically -- but delays matter.  See, e.g., the Trump financials.  

The specific grant here is for "procedural questions" regarding the right of states (which critics argue have no real grounds to do so) to intervene in the lawsuit.  The question does not only affect this one case.  IF the states get to do so here, there will be an increased ability for states to intervene, and thus more policy disputes will be decided in key ways by court action, currently with more conservative judges in various circuits.  

The immediate effect (though the brief order is vague and critics argue misleading on the point) is to hold up the ending of Title 42 as applied.  Again, the presidential statement noting the time will give Republicans a chance to join with Democrats to formulate a sound immigration reform (good luck with that ideal result) doesn't change one's mind too much, it is unclear how much this really bothers the Biden Administration.  A few Democrats support keeping Title 42 as I understand it, and you only need two senators (coming up) to matter after all.   

There is a joker.  The vote was 5-4.  Now, the expectation there would be that Roberts would be the fifth vote since at times he opposed what he argued to be procedural or substantive (see Dobbs) overreaching.  Barrett was the fourth vote with liberals in a few cases with religious or death penalty aspects.  No, the fourth vote here was Gorsuch.

Gorsuch penned a short dissent joined by Jackson with Sotomayor and Kagan simply noting they would not grant the petition.  He ends with a statement that they are not "policymakers," which is a bit hard for me to take given the various things he did.  I'm inclined to agree with one analysis that notes that it seems on par with his general opposition to federal COVID policy. This includes by use of the policy-making "major questions" doctrine.  

The cert grant after all will block the carrying out of a D.C. court order to end the Title 42 policy.  Gorsuch notes the federal government terminated Title 42 orders because of a finding the health need elapsed.  So, any opposition would merely be based on concern for immigration generally.  But, that is not the grounds for Title 42.  So, the states have no case.

His position is tempered granting he is stating no opinion on the claim that the administration did not properly follow the rules in ending the policy. A telling point!  If the process was too slipshod, how do we know the determination that the health need is no longer in place was correctly obtained?  He also notes his sympathy for the disruptive consequences of ending the policy but that is not enough.  I'm not sure.  Maybe, the law factors that in when ending this specific policy.  

I am unsure if there simply is no argument for the states to make here though agree they should not have taken the case.  Some reason to doubt should not be enough here.  There should be a very clear case before you hold up actions of the lower courts that in this matter the Biden Administration did not oppose.  I do think besides selective Gorsuch sanctimoniousness, there are some dubious "merits" arguments mixed in.

I think Sotomayor and Kagan were correct not to join in though I understand why Jackson did give the overall effect.  Got to ally with those conservatives when you can -- you will be hanging with them for a long time. Still, I fear Gorsuches bearing gifts and as some note, his language might come back and bite ya in another case where we want to uphold administrative action.  And, I question if the two-page dissent adequately addressed the complexities of the case.   

One final tidbit.  The order and dissent are found in the lesser known "opinions related to orders" page (since Gorsuch wrote an opinion).  It is not in the more familiar (even to some court watchers) "orders" page.  The order is an important act that in a major way affects federal policy.  It should be clearly found on the website.  It actually probably should be announced in a press release.  One more bit of opaqueness.  

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There is an execution of a trans inmate scheduled next week unless things are held up.  I tossed in above the Sotomayor order.

ETA: The woman involved in that case has been found dead.

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I saw something interesting on C-SPAN involving a book (A Constitution For The Living) adapting Jefferson's idea that constitutions should be limited to a time period when statistically half living would no longer be around (19 years at the time). An interesting concept to have new constitutional conventions (1825, 1863, 1903, 1952, 2022), but I did not really find the writing and some of the choices that good.  Also, it seemed the author did not catch a few mistakes.  A worthwhile misstep as a whole. 

Chief Justice's Year-End Report

The other matter is the end-of-the-year report for the federal judiciary, put out each year as a sort of New Year's Eve present by the Chief Justice.  This tends to have a specific theme (a historical event provides a "cute" precedent) while ending with some statistics of cases tried and the like.  

The historical event in this report is not as quirky as sometimes used.  This time we are provided events arising from the 1950s Little Rock and the judicial protection of equal rights (did Breyer -- who sees Brown as the Supreme Court's greatest moment -- pick this?).  The reader can decide if this is any implicit response to the current controversy over the Supreme Court.

There is a bit about how the district judge was threatened and "the importance of rule by law instead of by mob."  Reference is made to a federal judge whose son was murdered.  "Congress enacted the Daniel Anderl Judicial Security and Privacy Act to help protect judges and their families."  Daniel was the murdered son.  

The end of the report is merely nine pages long (so it was last year) and by the chance results in a rare drop of something on Saturday.  The last five pages concern the workload of the federal courts.  As Amy Howe notes, nothing about the leak investigation or anything.  

[As House Democrats look toward losing control in a matter of days, some end-of-the-term stuff is dropping, including Trump's tax returns. These things will take a lot of time to fully process.  I surely haven't.  

This includes over a hundred-page transcript of Ginny Thomas answering questions for the 1/6 Committee.  As noted, it wasn't under oath, but it still was illegal for her to "deliberately provide false information to Congress."  I gather -- imagine this for the chuckles -- if this ever came in front of SCOTUS, her husband probably would recuse.  No promises there, however.]

One statistic is that "122,872 persons were under post-conviction supervision on September 30, 2022."  It is comical a release a presidential list of people fully pardoned that dropped yesterday had six names.  Something must be done to have an institutional system in place that provides much more than that!*

The year, if only part of the term, of the tainted court, thus ends.

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* At times, a few responses to my comments on the presidential pardon power argued it should not exist. 

This unnecessarily tosses the baby out with the bathwater.  Maximum sentences are not a great policy and facts arise that warrant commutations, pardons, and amnesty (a special category that includes something like taking away the threat of punishment of Vietnam protesters).

The "monarchial" to take one word used flaw is that there are not enough checks and balances.  The New York Constitution, for instance, allows for legislative limitations though it does not seem that the governor is blocked too much with the current procedures in place.  Other states have more strings as a constitutional rule.  

On the other hand, though you can find various "favorites" getting benefits here, I am not sure how much in practice that is a problem.  Still, as seen by the Trump pardons and various infamous ones over the years, problems arise.  A means to override a pardon (perhaps under set guidelines by some supermajority unless the guidelines are blatantly not met) might be a good idea.  As the link notes, there are already judicial alternatives and so forth. 

One op-ed accused President Biden of "cowardice" for not doing more to reform the pardon process. Congress could act here too, including putting in place a pardon board in a more independent location (there is a fear it now is too influenced by the prosecution side).  The president would have the final say, but the bureaucratic details matter.  

I think "cowardice" is somewhat unfair.  To me, it is more a matter of inertia and choice of political options. Also, it is in part that Biden is himself not fully concerned about change. That is not "cowardice," though you might oppose the weighing of values here.  Also, any citation of how horrible he is on criminal justice should factor in his judicial picks and what he did do, especially in the context of the median.