SCOTUS Watch: Order Day (Last of Year)

Case Grant

A grant was dropped on Friday:

Issue: Whether the 60-day deadline in 5 U.S.C. § 7703(b)(1)(A) for a federal employee to petition the U.S. Court of Appeals for the Federal Circuit to review a final decision of the Merit Systems Protection Board is jurisdictional.

The issue sounds technical but was "relisted" which suggests some notable interest. Of course, we don't know why it was relisted for multiple conferences. The word "jurisdictional" means that the deadline would block a judge from taking a case after the deadline. It is fixed by law. 

Sometimes, for instance, judges have the discretion to do something. A judge might find that a normal deadline could be waived for equitable reasons. Nonetheless, though the details suggest the lack of a hearing is unfair, the argument is that the judges as a matter of law had no discretion. This might be bad in an individual case but the system as a whole is a good policy. At least, Congress has the power to think so.  

A separate due process argument is possible but is not at issue. 

Order List 

We also have the last scheduled Order List of 2023. 

The US Supreme Court tossed competing appellate rulings on an executive order President Joe Biden has since revoked that required all federal employees to be vaccinated against COVID-19. Jackson added statements referencing her views on vacatur (see first opinion of the term).

The notable news in today's final scheduled order list is that three justices want to take a case concerning bans on conversion therapy. Kavanaugh simply said he wanted to take the case. Thomas had an extended dissent, including making it a grave free speech issue. Alito had a more limited dissent that addressed the particulars much less.  

[As usual, Chris Geidner helpfully discusses this case and notes that the claimed circuit split -- a basic reason why the Supreme Court grants cases for full argument -- is disputed]

Alito also added a dissent to a rejection of Robert Kennedy's motion to intervene in a case accusing the Biden administration of violating the First Amendment when communicating with social media companies about content moderation. 

Quoting Alito:

This case concerns what two lower courts found to be a “coordinated campaign” by high-level federal officials to suppress the expression of disfavored views on social media platforms that now serve as the primary source of news about important public issues for many Americans. us.

He already has expressed his view that this was some very concerning threat to free speech when it is much ado about nothing. He was joined there by Thomas and Gorsuch. He speaks alone here. 

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Justice O'Connor 

Okay. So, this is the final scheduled scheduled order list of the term. There has been a policy of granting cert. (full argument) for other cases in a separate order some time mid-December. Next Monday, O'Connor will lie in repose (the public can give their respects) and a private funeral will occur on Tuesday. 

I expect further orders this year.