SCOTUS Watch: Opinions and Stuff

Justice Thomas, without explanation, missed Monday's oral arguments. He was back on Tuesday, which involved not only him announcing an opinion, but also a 1/6 related case. A case, given his wife's involvement, he probably should have recused from. A past case of unexplained absence is unclear. He will take part in the cases he missed.

Trans Case

I will allow Chris Geidner (various bits put together) to explain:

On Monday, the U.S. Supreme Court — over the dissent of the liberal justices — allowed Idaho to enforce its ban on gender-affirming care for minors for the first time against anyone other than the two transgender minors challenging the law. 

Under the court’s order, the law remains blocked as to those two minors. This was a ruling about the scope of the relief issued by the district court in the Idaho case — a statewide injunction of the entire law — in light of the plaintiffs in the case

Also Amy Howe: 

But here, the challengers emphasized, the district court concluded that the Idaho law should be temporarily blocked in its entirety to make sure that the challengers can continue to receive care. Otherwise, they said, the two teenagers – who are proceeding anonymously – will have to reveal their identities whenever they seek care.

Gorsuch (with Thomas and Alito) concurred with a special focus on criticism of universal injunctions. The alleged "spot-on" nature of this concern generally is less clear here. This is not a typical national injunction that causes concerns. As Jackson (with Sotomayor) notes in dissent, it's a fact-based dispute if this specific one is warranted. 

Kagan would have denied the stay of the district court ruling but did not otherwise have anything to stay. Roberts was totally silent so technically could have not been involved at all. Kavanaugh with Barrett concurred and discussed what should be weighed in cases when the Court is asked to step in. He also referenced the concern about universal injunctions. But, had more on the merits. 

I find the choice of means to address this issue, in a fractured way (3-2 or 3-2-1), in a trans case with these facts dubious. Other children in need of protection can potentially bring a case separately. The case has limited procedural effect. CG was generally moderate in his tone. Still, it rubbed me the wrong way.  More shadow/emergency docket monkey business.

Anyway, we continue to wait for a substantive decision from the Court on various pending major trans cases.  Nonetheless, the practical effect here will harm Idaho trans children in need of treatment. 

Opinions 

[Tuesday]

Jackson had an opinion upholding employment benefits for service members as applied to two provisions. Kavanaugh (with Barrett) concurred to flag his concern for a "veteran canon" which puts a thumb on the scales for veterans. Notes it has equal protection issues. Thomas (with Alito) dissented. 

Thomas had his first opinion of the term. It was another short opinion (a little over six pages with two photos) avoiding a broader result. "It would be imprudent to decide that question without satisfying ourselves of the premise that there is no cause of action."  The Takings Clause claim could be raised in the state court.  Another narrow ruling. 

[Wednesday] 

Kagan with a unanimous opinion (Thomas, Alito, and Kavanaugh wrote separate opinions concurring in judgment) held that an "employee must show some harm from a forced transfer to prevail in a Title VII suit, she need not show that the injury." Involved a sex discrimination claim.*

Steve Vladeck flagged on Twitter that Kagan has yet to be in dissent this term in fully argued opinions. Alito has also not written an opinion of the Court. Both held today.

Sotomayor with a unanimous opinion (13 pages) concerning federal criminal procedure rules involving forfeiture procedures. The employment opinion was flagged as a good one. This one is not likely to get much attention.

We now have eighteen opinions. I gather this is not even a third of the total number. And, it is mid-April. 

Most of the cases -- the Trump insurrection case is a major exception -- have been limited. There are many hot-button cases this term. Maybe Alito will write for one. 

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ETA: Professor Murray on Twitter flagged Kagan's opinion (noticeably rejected by three conservatives) as a way to avoid the use of racial discrimination claims as a means to attack diversity programs. 

Her "some" harm rule might help there because employment actions to further diversity would not truly be "harm" even if it meant a change of employee duties. 

We will see how the lower courts handle this. See also, this article on the matter. This shows the many complications of rulings, including specific aspects that might not cause difficulty at that time. Different facts can result in a more divisive ruling. The nuances of the ruling are the rub.