SCOTUS Watch: First Opinion of Term

The first opinion of the term tends to be non-controversial. This precedent was followed this term. The justices could have simply granted the request to declare the whole thing moot. But, they had an oral argument first.

The case involved a potentially open-ended dispute involving "testers," who sue to "test" civil rights laws. 

Deborah Laufer has sued hundreds of hotels whose websites failed to state whether they have rooms accessible to the disabled.

So, we have a sympathetic case that seems to be taking the concept too far. She cannot really go to all these places. Technically, she might meet the standards. After all, as one justice noted during oral argument, on average, people plan by researching many options, and then selecting the best one. 

Now, "hundreds" sounds like a lot. The Supreme Court took the case because this one person created a circuit split, since the hotels were in various judicial circuits. So, the law on the question is divided, and that is a basic reason the Supreme Court takes cases: to settle on one united law.

So, the Supreme Court took the case. However, then Laufer asked them to hold the case moot. One of her lawyers was suspended from practicing law. And, the lawyer's overall scheme had other effects:

Making matters still worse, the sanctions order against Gillespie also implicated Laufer’s former counsel of record before this Court, Thomas Bacon. 

She did not just ask them to declare the whole thing moot. She did not just dismiss her pending suits, but promised to not bring additional ADA suits. 

The other side noted it made sense to decide the question. Laufer granted the Supreme Court had a the power to do so. She argued it was a prudential move not to do so. The Supreme Court agreed, noting they might follow another path in another case. Barrett wrote the opinion. This flexibility was something she herself flagged in an earlier concurrence.

The opinion was less than four pages.

Thomas would have went to the merits and ruled against her. She should not have standing to sue. If they went that route, the question would then be how far you have to go there. What sort of person who "tests" to ensure that civil rights laws are upheld (and conservatives can do this too) have enough of an interest? After all, one case determined a dollar damages was enough for standing to sue. Thomas was fine there. 

The concern raised by some people was that the Supreme Court would interfere with the power to bring suits in cases much less blatant than this one. There are various cases (such as testing a bakery which doesn't do business with same sex couples) where a claim is raised that the litigant is not really burdened. It is just a "test case." 

The line drawing might unjustly limit valid litigation. The Supreme Court does have a circuit split to work with here. Nonetheless, is this a good case to settle the question? Is she a normal claimant? It's easier just to declare it moot. They could have done this before the argument too, but Thomas and maybe someone else was wary about doing that.

The Supreme Court also vacated the opinion below. This "United States v. Munsingwear" vacatur has been used more often in recent years. The link discusses the basic concept. 

The general problem is that the value of appeals is that it tests (ha) the lower court judgment. But, what if there is no ability to do that, such as if the case becomes moot? For instance, the rule of law decided by the lower court will still be precedent for new cases. The losing party won't have a chance to appeal and potentially have it overturned. 

Justice Jackson concurred in judgment. She questioned the application of the rule in recent years. She would declare the case moot and agrees for a limited reason that vacating the lower court judgment was correct. Nonetheless, as she has already done a few times, she went her own way on a matter of law. Jackson again brings some fresh air to the Court. 

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Today was the oral argument in the case that Justice Alito should have recused. He had two extended colloquies against the government's position. He only asked the other side a quick question, basically assisting him. 

It looks like the income tax won't be troublesome. This is as it should be since the sort of hairsplitting on the obscure outer limits of a "direct tax" is best avoided. Tomorrow's oral argument appears fairly technical.

ETA: It is a somewhat technical discrimination case, which might have troubling implications.  (Many people despise Twitter/X, for cause, but there are still people there with this sort of very useful comment thread.) Overall, the case underlines how you win can matter.

There will be an Order List on Monday, which is the last thing scheduled (putting aside the O'Connor funeral ceremonies) for the Supreme Court until the new year.  We might see a stray order or something else. 

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The funeral arraignments for Justice O'Connor was provided. Her family notes that in lieu of flowers that the family requests donations to iCivics, the civics education website that O'Connor established. Her civics campaign continues even after her death.  

Chief Justice Roberts provided a bench statement in honor of O'Connor before the Monday oral argument. A C-SPAN reporter posted it on Twitter/X. The statement came before the argument so we have no audio. The Court also didn't provide a transcript on the website. 

Meanwhile, even though opinion announcements returned (after COVID suspension) last term, Oyez.com still has not posted any audio from what I can tell. The first opinion announcement from last term was almost a year ago. The Supreme Court should release them on their website. 

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Judge Loren AliKhan (a D.C. judge) was confirmed today as a federal district court by a 51-50 vote. All the Republicans and Joe Manchin (who can't say he has to worry about re-election any more) voted against her. 

This required a tiebreaker, both for a procedural vote and the confirmation. Thus, Vice President Harris does one of her few official duties and broke the tie. The procedural vote was a bit of history: she now broke more ties than any other vice president. 

It is charming that she broke the record of racist John Calhoun, who was the only person who was vice president under two presidents (Adams and Jackson). He served almost eight years (1825-32) before resigning to become a senator. Biden in two terms broke no ties. Harris broke the record in less than three years. She now has thirty-three tie breakers. 

A few Republicans voted for her before. I am not totally sure why she is so problematic for a district court judge slot in D.C.