Mid-Week SCOTUS Watch

Lower Court Follies 

Alito extended the stay of the Texas border case until next Monday.

The Supreme Court repeatedly (if not enough, including letting bad things drag on) has called out the Fifth Circuit. They keep on having issues. Most of the attention comes from hot button cases. But, there are enough to be notable. Eleven appeals courts (First to Eleventh), a D.C. Circuit, and some specialty ones exist. The Fifth rightly gets a lot of special attention. 

A notable action that those who are attuned to the question (especially Professor Steve Vladeck, including in his book Shadow Docket) are particularly interested in has relevancy here: 

The policy addresses all civil actions that seek to bar or mandate state or federal actions, “whether by declaratory judgment and/or any form of injunctive relief.” In such cases, judges would be assigned through a district-wide random selection process.

The amended policy applies to cases involving state or federal laws, rules, regulations, policies, or executive branch orders. District courts may continue to assign cases to a single-judge division when they do not seek to bar or mandate state or federal actions, whether by declaratory judgment and/or any form of injunctive relief.

The Judicial Conference of the United States apparently is listening to the criticism that parties are gaming the system in circuits where non-random selection policies can guarantee or more easily guarantee your case will be assigned to a certain judge. 

A conservative lawsuit, for instance, can be filed in front of a conservative judge, who can decide a case with national significance.  Random selection helps avoid that sort of thing. This change can be a BFD.

ETA: Time will tell how useful this will be. Nonetheless, early carping from the likes of Mitch McConnell, Judge Ho (Fifth Circuit), and Josh Blackman (Volokh Conspiracy troll) suggests the usual suspects realize it has some bite. 

Barrett and Sotomayor: Civility Police

Justice Barrett in the recent insurrection case cautioned people to "turn the national temperature down," appealing both to her colleagues and outside groups (including the media). She has a reason to promote such a mood though we know how she got there. Don't gaslight us, Amy. 

Barrett and Sotomayor have shown up together (can't do it in front of Congress though) to promote civility and prove everyone respects each other over there. 

I know Sotomayor has been part of panels of judges for years now and has an interest in promoting the integrity of the courts. Likewise, we have seen her actions during oral arguments and in opinions. She speaks her mind. She also has repeatedly told audiences that if they are upset, they should protest.

But, especially after the insurrection opinion and Trump immunity case developments, I am not in the mood for this sort of thing. Keep the temperature up. 

Good faith (and it doesn't seem so in various ways) or not, this Court does not deserve a lower temperature. I sent Sotomayor a letter criticizing the Supreme Court along with more tongue-in-cheek cards to Roberts, Kagan, and Thomas.  I sent letters, of varying degrees of annoyance, to justices over the years. Blackmun and Sotomayor (once) responded. 

Remember when Sotomayor released that message with her "warm colleague and friend" Gorsuch when Gorsuch wouldn't wear a mask, even though he was sitting next to someone with diabetes?

(See also, this old reference to Kavanaugh having COVID. Others might be interested in the new memoir written by his accuser.)

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The justices have a conference scheduled for Friday. They are also due back next week. We have some additional Friday news:

The Court may announce opinions, which are posted on the homepage after announcement from the Bench.

So, this time, unlike in the insurrection case, it looks like they will show up and announce the opinion(s).