SCOTUS Watch: Orders

Drag Shows

Chris Geidner is a good place to go to keep track of the many pieces of anti-trans legislation and litigation brought addressing it. 

For instance, recently he addressed the fraught decision to appeal a losing case to the Supreme Court. The Biden Administration decided to (at least partially) join the effort. We will see how that goes with this Supreme Court.

Florida recently enacted a law that makes it a misdemeanor for a restaurant or bar to knowingly admit a child to an “adult live performance,” defined as a sexually explicit show that would be obscene in light of the child’s age. 

The Supreme Court on Thursday addressed one of Florida's many discriminatory laws. The specific issue was a request to hold up (grant a stay) a district court decision that broadly blocked (injunction) Florida's law from being applied. The stay request was specifically limited to the breadth of the injunction. Florida might have had a case on that front. 

The fact something was wrongly decided alone is not usually a reason for the Supreme Court to intervene. The Court refused to do so with three justices (without comment) noting they would have granted it. 

Roberts and the liberals were silent. Thomas, Alito, and Gorsuch dissent. Kavanaugh and Barrett (except for a footnote) said the issue was important. Nonetheless, the procedural posture of this specific case made it a bad one for review. Again, they probably have a point. 

As an aside, if a justice does not publicly dissent in these cases, it is hard for me to accept that we should do anything but say they consented. Silence usually means assent. 

I was told by a major Supreme Court reporter that she generally agrees. Technically this is not accurate. It is bad form not to add "no public dissents" or something.  Have the votes public or consider the orders a joint "for the court" statement that you implicitly consent. This approach is phony.  

(The case involves a chain named "Hamburger Mary's" and a Florida official named Melanie Griffin. Oh so close to the actress.)  

January Arguments

We are approaching the New Year. Where has 2023 gone? The year has been something of a way station before the presidential year. The start of major Trump litigation and trials also has played out as a sort of prologue to 2024.

The Supreme Court sometimes drops the first opinion in an uncontroversial case in December. They also might dispose of a case that turned out to be a rejection. 

For now, we have the oral argument scheduled for January.  There are some possibly interesting odds and ends. The possible landmarks are two cases (Jackson is recused in one) that ask the Supreme Court to make a big change in agency law. Multiple scholars have shown agencies have had broad discretion back to the 1790s.  

The interference in allowing regulatory agencies to have the flexibility to do business is a major conservative project. Some argue the New Deal was when the Constitution died or something because agencies were given too much power. 

Friday 

The Supreme Court calendar on its website notes:

The Court will convene for a public non-argument session in the Courtroom at 10 a.m. 

Seating for the non-argument session will be provided to the public, members of the Supreme Court Bar, and the press. The Supreme Court Building will otherwise be closed.

I find this opaque reference annoying. A useful nonargument session would be one where Chief Justice Roberts made a brief statement about the new code of conduct, which they appear to want to drop with as little fanfare as possible.  Prof. Michael Dorf argues that they still did that wrongly. He suggested a simple statement of a new set of court rules. But, maybe, these are more like guidelines.

(Catch the movie reference?)  

The purpose of the session is likely to swear in people to the Supreme Court bar. Perhaps, that is implied by the seating arrangement. A clearer statement (sometimes specific groups of people are involved), perhaps a quick press release, would be better. I continue to find the Court has an openness problem.

The justices also had a conference. The website summarizes: "The Justices will meet in a private conference to discuss cases and vote on petitions for review."  John Elwood has a column at SCOTUSBlog discussing cases that were "relisted" (put on the agenda for multiple conferences).  

Order List

Typical no drama Order List. 

The justices granted two issues (two cases were consolidated) for a full argument. Nothing too fascinating. 

(ETA: Someone was "invited" to argue the criminal case.)

Thomas wrote a dissent involving a procedural matter (see link) while Kavanaugh without comment also would have taken the case. (ETA: More info on that dissent.)

Alito didn't take part in two cases without explaining why. Only Kagan has recently begun to provide brief categorial reasons why she was recused. Each justice should follow her lead. 

No more conferences or scheduled order days in November. It would not surprise me if some stray order pops up. There will be arguments during the last week though technically that starts the "December Calendar."  Happy Holidays.

ETA: Sometime yesterday, a notice was dropped that an administrator is retiring early next year.