SCOTUS Watch: Thomas Turns 75

It took a long time before Justice Jackson even dissented. But, now she has begun to do so. And, this girl is on fire. I think her mix of legal acumen and passion will make her a pleasure to read for a long time to come.

The Friday cases weren't hot-button and again it's asinine to back-end so much until the last week. The next opinion day is Tuesday when it will be harder for me to keep track in real-time since I'll be at the polls. There are ten cases left. They might shove that into two days. Fun times!

There are various cases today that received some degree of attention. Kavanaugh handled a case where Texas and Louisiana challenged guidelines regarding how the federal government enforces immigration laws.  The state claims here were so absurd that only Alito dissented.  He is also the only one who used "illegal aliens."  Kavanaugh and Barrett today wrote opinions using "noncitizens," avoiding even "aliens."   

The other three high conservatives concurred via two opinions and Kavanaugh made sure not to block any case turning on non-enforcement.  So, this is yet again an example of another theme this term: "You overreached guys, but hey we aren't too mad.  Just aim a tad bit lower!"

[Steve Vladeck notes on Twitter that Texas is now 0-4 and that this is "*another* case in which #SCOTUS's shadow docket ruling (refusing to stay a nationwide injunction) was *not* predictive of the merits.]

Barrett handled a case involving an unsavory con artist preying on noncitizens, promising the chance of citizenship per "adult adoption." Not a thing.  Thomas concurred separately to use a chance to press another solo crusade (damn First Amendment overbreadth doctrine) while Jackson with Sotomayor dissented. Jackson partially rested on text, arguing that the majority wrongly "edited" it as a matter of "constitutional avoidance."  

It's one of those times when you are sympathetic to the arguments of both sides. Not quite birthday boy, who is all concerned about the overuse of judicial power as if he is Mr. Self-Restraint. 

We had a normal 6-3 split in a Confrontation Clause case, Thomas vs. Kagan (with Jackson having her own short dissent).  Barrett was off the reservation (if I'm allowed to say that) regarding a portion of the majority's opinion regarding the history of the clause and as applied here:

While history is often important and sometimes dispositive, we should be discriminating in its use. Otherwise, we risk undermining the force of historical arguments when they matter most.

Barrett was concerned about Thomas selectively using post-founding era history selectively.  She is not suddenly denying the value of originalism.  And, this "discriminating" approach also gives her flexibility in her own fashion such as when she noted that emergency appeals ("the shadow docket") is a matter of judicial discretion.  

Kagan was Kagan having us "imagine" or "consider" or "one blink-and-you-miss-it paragraph of analysis" and "And so one might wonder."

Jackson dissented three times today, writing the main dissent twice, and adding her own in a third.  She was most on fire today in a case many probably didn't think warranted much thought, though when it comes to arbitration cases, a conservative/liberal split is fairly expected.

The question in this case is whether, when a district court denies a motion to compel arbitration, it must put its pretrial and trial proceedings on hold while the appeal of that decision (to which the losing party has a statutory right) is ongoing. The answer is yes.

Jackson explains (and Thomas went along much of the way this time) how she believes this violates procedural fairness and is the majority is just completely wrong.  Their rule "comes out of nowhere" with "jerry-rigging explanations," and "unmoored from Congress’s commands and this Court’s precedent."  It is the "that way lies madness."

I think she might have laid it all a tad too thick, but hey, she is working on getting her own voice. And, on this Court, like with Gorsuch's balancing for the rights of Native Americans, we need it.  She sees the principles of this case, which again few thought very important, as basic:

I agree with that hesitation—even one step further down this path is much too far. The mandatory-general-stay rule that the Court manufactures is unmoored from Congress’s commands and this Court’s precedent. And the windfall that the Court gives to defendants seeking arbitration, preferencing their interests over all others, is entirely unwarranted. The Court now mandates that result no matter how unjust that outcome is, according to traditional equitable standards, in a given case. This endeavor is unfounded, unwise, and—most fundamentally—not our role. 

The Supreme Court for years, by now often with little dissent, has weighed things in favor of arbitration.  Arbitration has its place. But, there is good reason to think they went too far.  Jackson's dissent also be relevant to the concerns about the shadow docket and the Supreme Court's own interventions when not warranted.   

Final countdown: ten to go.  Two of them are the same subject with various details (e.g., Jackson had to recuse in one of the affirmative action cases).  So, it is really eight cases.  And, we do not know if they will actually decide the independent state legislature case or toss it out given the court below changing things midstream.  So, two opinion days are possible.  

There are some major cases next week but it remains to be seen how much is actually decided.  The Texas case today even led some to think that Kagan has the student loan opinion since SCOTUS has now had multiple cases that have a narrower view of standing than the Alito side wants.  And, you know, that issue just isn't too ideologically exciting to some justices.

We shall see.  Birthday Boy and Alito should resign.  They are not serving in "good behavior."  Roberts should resign for the sake of the Court, including having a 5-4 Court that will be more respectable.