SCOTUS Update

Updates

The 5CA rather quickly (with a briefing schedule on steroids) partially overturned the really really bad abortion pill opinion to make it really bad (but perhaps with enough of a patina of sanity for SCOTUS to allow it to stay in place).  

The conservative with two previous pieces (before and after the district opinion dropped) has a third against the court of appeals. He no longer ends on quite the same note (how it will fail/trust the process).  He looks forward to the Biden Administration brief.

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There was also more from the conflicting ruling.  The basic fact here is that the Supreme Court needs to step in.  I don't say this because I trust them or anything.  But, it is a bit of a mess and underlines the need for a different system (united in one circuit) involving such nationwide actions. 

Justice Alito (as apparently generally expected) granted an "administrative stay" mid-afternoon on Friday that will remain in place until the end of next Wednesday.  This will hold up the Fifth Circuit Court of Appeals' bad opinion until then.  Briefs are due by noon on Tuesday.  

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The latest on the Thomas: Justice Ethics Fail news is an undisclosed purchase by his billionaire friend of a home Thomas' mother is still living in (Thomas is over 70; his mom still being alive suggests he is not retiring any time soon).  It's for a good cause:

In response to ProPublica’s new reporting, Crow said he bought Williams’ home to “preserve it for posterity,” with a goal of eventually turning it into a museum dedicated to Thomas. The justice did not respond to ProPublica’s questions about the property sale to Crow.

Sen. Dick Durbin, chair of the Senate Judiciary Committee, has called for Roberts to address this whole issue.  There is no real way for that to happen at this point.  There has to be a binding ethics code and Thomas really needs to resign.  Senator Whitehouse on Twitter (and one supposes elsewhere) appealed to the Judicial Conference to forward the whole thing to the Justice Department or something.  

"The Judicial Conference [chaired by the Chief Justice] convenes twice a year to consider administrative and policy issues affecting the federal court system, and to make recommendations to Congress concerning legislation involving the Judicial Branch."

Good luck with that.  

Thursday Order 

The Supreme Court rejected a stay (put on hold) in a case "about a limited set of student borrowers who were outright defrauded by for-profit scam colleges."  There is no comment (as usual).  

The lack of a written opinion in any way is much more appropriate for this sort of order.  Nonetheless, I think it is a good policy to at least provide a brief comment (summary) for orders that are linked to the Orders List page.  There is a range of other developments (as you can see on a typical docket page for cases).  But, there are a limited number of orders on that page.  Why not simply provide a brief summary or something? 

Friday Opinion 

The slow walk of the 2022 term continues with a single opinion dropping today (less than 10 opinions so far). It is a relatively short (under 20 pages) right-to-sue case touching upon administrative law.  This means it touches on a more expansive subject.  

As noted in the SCOTUSblog entry, the case is a sign of the times when administrative law is more easily challenged.  In fact, a key precedent -- Free Enterprise -- was a loss for Solicitor General Kagan with Justice Breyer writing a four-justice dissent.

Kagan found a way to get eight people to agree with her. A quick read suggests to me it is purposely dry. Thomas concurred saying he is open to doing more if given the chance.  Gorsuch concurred separately.  The two concurrences explain why the whole file is almost fifty pages.  

It is telling to me that the four without an opinion at this point are Roberts, Thomas, Alito, and Kavanaugh (possible swing in some controversial cases).  The others have two (Jackson has one) opinions, none really too controversial from what I can tell.  

There were some strong feelings (the limited criminal law win had a strong dissent) but nothing too earth-shattering.  One was punted.  There is an "ominous music" feel about things.  Meanwhile, there is only one link on the "Online Sources Cited in Opinions" page (to save files to guard against dead links), and that isn't even a case cited in an opinion for the court. 

Friday Orders 

The conference day order (a common occurrence; a sort of housecleaning business) involves solicitor general time at oral argument.  

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SCOTUS will now go into the final stretch (including a notable religious accommodations case) of oral arguments.  There will be orders on Monday and two opinion days (Tuesday and Wednesday).  Since one single opinion dropped today, it is unclear what this actually will entail.  

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The Fifth Circuit case led to more talk to a 5CA vacancy in place for over a year.  It's unclear why it took that long to even nominate. Figure there is some sort of backstory there.  Anyway, looks like there will finally at least will be a nominee. So, complaints can be moved to something else.