SCOTUS Watch: Orders

The "independent legislature doctrine" is stupid and liable to be a dangerous loaded gun. The case taken might have been the best possible one since the facts are so bad. So, it very well might not be a good thing that changing state developments might require disposing of the case. For now, SCOTUS wants more briefing.

SCOTUS might drop miscellaneous orders, but today's Order List is the last scheduled thing until the end of next week. The month will then end with two weeks of oral arguments and maybe more opinions.  The Order List was as expected not too notable, even if they granted one case for review about federal admiralty law.  

The order list was a bit long though and figured there was a reason.  And, yes, Gorsuch (statement) and Thomas (full dissent) did submit comments against "offended observer" (they should know though it's sad Alito didn't join in) standing in Establishment Clause cases. In the typical case, there is some holiday display, which endorsed religion in some fashions. The state of the Establishment Clause doctrine makes such things more and more academic.  

The case at issue here -- which even Gorsuch admitted isn't ripe for review (not that it stops Gorsuch and Thomas in other cases) -- is somewhat atypical. You can read the other side's (Freedom From Religious Foundation) take too.  A local government directly endorsed a religious event that was a response to a tragedy.  

The justices show empathy (it's okay; like packing the courts, empathy is okay when conservatives do it in this context) on the use of religion to address a tragic event.  But, the constitutional rule here is not only going to arise in that situation.  These cases repeatedly also turn on facts. So, if this was just a public event -- where religious leaders are but one participant -- it might be okay.  As noted in the FFRF memorandum, the situation has specific aspects that are concerning.  

The immediate issue is the use of the federal courts to address injuries that or emotional and psychological in nature.  It might be best to avoid doing that in various cases, but this is the same Supreme Court (8-1 with merely Roberts dissenting) upholding the right to allow standing with token monetary (even $1) injuries.  

Violations of the Establishment Clause will repeatedly not result in economic injury.  There should be a way to allow lawsuits in such cases though again if possible I would use state courts.  Gorsuch and Thomas, however, are not great prophets for consistently strict standing rules.  They are good at being outraged.  

Final tidbit: Thomas noting he dissented in one case "decades ago" was just a tad depressing.  

Meanwhile, I'm annoyed SCOTUSBlog did not have an article covering Justice Jackson's first opinion for the Court. It was (as usual for such an opener) a mundane case overall. But, it is a bit of an "event," and a SCOTUS blog should have immediately covered it.