SCOTUS Watch: Opinion Day

News coverage sometimes suggests SCOTUS just leaving a pending case or not taking a case for review is more than it is. 

SCOTUS (until Kavanaugh and Barrett) was so willing to avoid 2A cases after Heller that a few justices claimed they were treating it as a second-class right.  And, even now, I don't think them letting a pending assault-style weapons case be is that notable.  Anyways:

The application for a writ of injunction pending appeal presented to Justice Barrett and by her referred to the Court is denied.

No public dissents. Meanwhile, Steve Vladeck's The Shadow Docket book was officially released. He is having a lot of press and podcasts about it. I reserved it and will comment on it soon.  The order here is in fact a lesser example of the practice.  It is one of the minor moves where quiet is mostly acceptable.  As compared to resulting final death penalty appeals etc.

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We then move on to Thursday and another Opinion Day.  They also have another Thursday conference / Monday orders set.  And, we will have another opinion day next Thursday.  They are coming in bunches now.

The pork case last time was split in various ways.  There was a lot of agreement today though for whatever reason it took five or more minutes after 10 A.M. for the opinions to start coming.  Yes, the "big" Twitter and Google cases were handed down.  But (as many hoped while a few feared them "breaking the Internet"), they were basically narrow.  

(Roberts has his first opinion, which I missed at first, maybe since it is so forgettable -- a unanimous tax case most notable because of the Jackson/Gorsuch concurrence the same day we have a GorsuchJackson concurrence. The delay of the "big boys" having opinions so far has not brought out anything too notable.)  

The first opinion was a unanimous one by Stolen Seat Guy. I still am not over how he and his two Trumpies got here.  Not merely going to accept that the car is stolen and politely deal with thieves. Even if Gorsuch and Jackson already (again today) are uniting up in certain cases.  But, I will note the opinion seems well written.  It's a medical patent case.  

Thomas had the Twitter case (the Google case was disposed of as a per curiam) and a technical case (he has more than his fair share), which Alito and Gorsuch dissented from.  The day was full of basic agreements, including Jackson briefly mentioning in the Twitter case that she went along given it was narrowly decided.  One of the liberals from Slate praised the opinion for its restraint.  

Oh, and then there was the 7-2 (Gorsuch/Jackson concurring, but joining the majority too) with three opinions spanning almost ninety pages total though that includes a lot of photographs (it is a copyright dispute involving a photo of Prince; we also have multiple Marilyn Monroes and classical nudes).  

The two would be Kagan (full Kagan, believe me) and Roberts.  One appellate lawyer noted the "Kagan and Roberts" rule that when they both agree, the opinion is likely right.  I don't claim to know the answer here, but Kagan's opinion [praised by one appellate lawyer for its overall skill] is a wonder to read. She is full of snark, and colloquial comments to the reader.  There is a reason why (along with Roberts) she is put forth as the best writer of the bunch.  I think she probably lays it on a tad thick, but it's fun. 

The Supreme Court has been subject to a lot of appropriate attacks of late but their opinions so far have been overall good ones. We had a few divisions. It is something that one of the strongest is Kagan v. Sotomayor and it would be even more striking if she dissented alone!  The dissent makes me sad that things did not go as they should have personnel-wise.

Kagan should be the de facto co-Chief Justice in a liberal-leaning Court. More analysis can be found at SCOTUSBlog.  Meanwhile, to toss it in, these cases brought in a few more URLs for those keeping track. 

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The "Title 42" border policy was recently ended.  SCOTUS declared a challenge to it moot with Jackson saying she would have just dismissed it as improvidentially granted. 

Gorsuch added a statement concerned about emergency powers and so on.  He dissented when five justices granted the case originally, but I noted he had some language that led me to be wary of praising him too much.  

Same here, with his paeon to civil liberties, citing Aristotle and tossing in things like "Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country." 

(checking) Slavery and Jim Crow were during peacetime, correct?  This is also the guy that was part of the five who took abortion rights away. I'll get my libertarian appeals elsewhere, thank you.  

[One scornful response cited the Japanese internment cases but Gorsuch did toss in "peaceful" at one point.  A basic pet peeve of mine is when people do not read close and do not think things through, resulting in easy-to-refute claims often strenuously expressed.  And, yes, it's a human failing, that I'm sure I myself have done from time to time.]   

ETA: This entry is a bit long already, the late-term rush mixing with other news, but I just saw a view from the courtroom article. Since the Court wrongly doesn't provide us audio or video of opinion announcements, we are left to such secondhand reports.  Breyer was in the house among other things.  We also might have seen why there was about a five-minute delay before the opinions were posted: Roberts had a bit of Breyer-related stuff.  

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Sen. Dianne Feinstein is back, helping the confirmation of lower court judges, but so far there has been a certain "drip drip" feel to it as a handful were confirmed. And, then, they are out for most of the rest of the month, only having pro forma sessions.  And, Feinstein is appearing even more decrepit (so not a healthy and fit 89) than before.  

I think the courts as a whole are a concern, just as no one aspect of the Supreme Court (ethics or whatever) is a problem by itself.  The chair of the Judiciary Committee still thinks blue slips (where Republicans can hold up nominees after they refused to do so when they had power) should be allowed. There is a whole "what the fuck is wrong with you" quality.

Senate Dems can show they have generally confirmed judges, though the numbers (showing better success than Trump) are a bit misleading since they are behind (catching up) on the appellate courts. Blue slips also help block filling nominations from red states.  Moderate efforts are not enough these days, especially when the Senate is where the Dems have power.

The Supreme Court is even affecting state court nominations. The situation clearly affected how a power-shifting opportunity in the N.Y.  Court of Appeals was handled.  Now a Connecticut judicial nominee got in trouble for her signing a letter supporting the nomination of Amy Coney Barrett.  I'm all for a hardline there.  No business for Democrats in that situation, even more so than the Gorsuch matter, to support her.  

The service as conservative justices' law clerks should not be assumed to be itself disqualification.  Liberals have done that.  She then served as an appellate attorney at the Natural Resources Division at the Department of Justice under Bush43, which I saw someone flag.  Not really sure if that sort of thing matters. 

But, her comment that she didn't realize Barrett would overturn Roe v. Wade. is hard to take seriously.