SCOTUS Watch

The Supreme Court had a busy week with orders on Monday, oral arguments Monday to Wednesday, opinions on Tuesday and Wednesday, and a conference on Friday. After another Order List next Monday, they have another break until February 21. 

Order List

The Order List this week was less busy than last time. They did take a case [Barrett v. United States] involving double jeopardy. 

Alito and Kagan did not take part in one case each. As usual, only the liberals explain why they recused themselves. 

Alito and Thomas would have taken a case involving “bias response teams" at schools where people are encouraged to report expressions of bias. This is voiced as a concern for free speech, though it seems rather overblown. Thomas wrote a dissent from denial largely focused on standing to sue. 

Opinions 

Tuesday and Wednesday were opinion days. 

As usual, I think if they want to have opinion announcements (and they are fine), we should have audio and transcripts. It's nice that they drop their opinions online right away. Immediate comments can also be found online.

The first is an environmental case summarized by Barrett in partial dissent for the women justices:

The Environmental Protection Agency issued San Francisco a permit allowing it to discharge pollutants from its combined sewer system into the Pacific Ocean. The permit, of course, does not give the city free rein, and among its conditions are prohibitions on discharges that contribute to a violation of applicable water quality standards. San Francisco challenges these conditions on the ground that EPA lacks statutory authority to impose them. The city is wrong. 

Alito wrote the opinion for the Court. The justices (Gorsuch did not join that section but didn't say why) agreed the city was wrong on one point. They split on the other. An interview with the city side is here. 

Wednesday's opinion was a 7-2 Veterans Affairs disability claims. Thomas wrote the majority opinion denying the challenge. Not sure why they needed two opinion days to hand down two opinions.

Jackson (again) had a strong dissent, this time joined by Gorsuch (who will repeatedly go along with challenges on the federal government). Jackson has repeatedly argued that the Court wrongly applied the congressional intent and text. 

Joint Speech

“Thank you again. Thank you again. Won’t forget it." 

Chief Justice Roberts, Kagan, Kavanaugh, and Barrett along with retired Justice Kennedy was at Trump's Joint Congressional Address. Breyer usually went to these ceremonial things. Is he done with them now that he is retired? I suppose he might be glad.

Kennedy said something to Trump when he engaged with the audience. Trump thanked Roberts and pat him on the back, which didn't seem to go over too well. (Others got a "thank you," but the extra bit and pat was just for Roberts). Right after the handshakes, Roberts got the heck out of there.  

Roberts earned the thanks. Trump v. U.S. He also earned the disdain he has received:

But this time Trump did it to the sitting Supreme Court chief justice in public on the floor of the House. Whatever high regard John Roberts still held himself in has been directly challenged in the most excruciating and a dignity-robbing way. Trump has a way of doing that to everyone who comes in contact with him. Roberts had it coming. 

Joan Biskupic separately has an interesting analysis of Roberts clerkship in an article analyzing Rehnquist's papers. The release of justices' papers had led to some interesting details, including O'Connor's papers. 

Foreign Aid Order

The Supreme Court followed the next morning, in an interestingly timed 5-4 order, denying the Trump request to block enforcing an order involving foreign aid. Steve Vladeck (Amy Howe has the prize for speed, dropping her summary by 9:45 AM) has a summary of the ongoing complex litigation. 

Bottom line: It involves foreign aid authorized by Congress for work already completed. Trump wants to illegally and unconstitutionally “impound” the funds. It’s one of many such efforts.

Roberts and Barrett joined the liberals. Vladeck noted on Bluesky that the 5-4 line-up showed up four times so far, each time in emergency order situations. They involved Texas' challenge involving razor wire on the border, ghost guns, and allowing the sentencing of Trump in the NY case.  

Not quite Team Resistance.* The goal will be to get two conservatives to sometimes limit the damage. Or, at least, slow down its execution. As Chris Geidner notes, even if this was a "win for democracy, accountability, and separation of powers," the money still hasn't been paid. It is all a holding action now. 

Meanwhile, as Geidner and Vladeck note, Alito is "shocked" in his usual hypocritical Casablanca sort of way. With a healthy quality of bullshit. This includes both a sudden concern for legislative power (cf. Biden years) and lower court judge overreach (ditto). 

The case is procedurally complicated, and the win for sanity limited. Ultimately, we are still in "to be continued" territory. BTW, let's remember the name of the case: Department of State v. AIDS Vaccine Advocacy Coalition. Just to remember the stakes. 

(Limited) Trump Win

Hampton Dellinger sued when Trump illegally fired him. The district court blocked the firing. 

The Supreme Court denied an attempt to intervene. The D.C. Court of Appeals (the panel was 2-1, Republican appointee) unanimously allowed Dellinger to be removed pending the appeal. 

Dellinger gave up his challenge with a statement saying changes of success were unlikely. This was unfortunate, but maybe there is a pragmatic reason, too, since it would avoid a bad precedent.  

SCOTUS then declared a Trump challenge of the district order was moot. The breadth of executive power to remove officials is still an open question. 

ETA: The D.C. Circuit dropped an opinion later anyway. Rightly or wrongly, he had an uphill battle.

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* It is too much for some Trump loyalists, who have called her "evil" or a "DEI-hire" (the new "woke") for occasionally not going along with the conservatives. 

One Trump loyalist said she did not provide the proper "look of admiration" at the joint speech. 

He should have been like Anthony Kennedy and pleasantly chatted with Trump. Jay Willis on Bluesky thought AK said "You're teaching young people to love America." Yes, Trump is big for civics! Maybe, Sotomayor, who is big on that, should check him out!

I think Breyer (not just Souter, who avoids these things like a plague) made the right move here.