SCOTUStoday for Wednesday, October 15

Justice Clarence Thomas was confirmed to the court 34 years ago today. Not only is Thomas the longest serving current justice, he is less than three years away from becoming the longest serving justice of all time.

Morning Reads

• Former Supreme Court Justice Stephen Breyer Applauds Legal Pragmatism at HLS Symposium (Sidhi Dhanda and Caroline G. Hennigan, The Harvard Crimson) — During an appearance at Harvard Law School on Friday, former Justice Stephen Breyer spoke about different methods of legal interpretation and why he prefers pragmatism, “which employs case history, personal experience, and real-world consequences as factors to consider when making judgements,” according to The Harvard Crimson. “Why shouldn’t experience matter? Why shouldn’t listening to the lawyers matter? Why shouldn’t it matter, in some cases, where you want to know, ‘what are the consequences?’” Breyer said.
• US Supreme Court won’t review rule allowing H-1B holders’ spouses to work (Daniel Wiessner, Reuters) — Tuesday’s order list included the names of more than 100 petitions that the court has declined to review. Among those was “a challenge to a rule adopted during Democratic former President Barack Obama’s administration allowing the spouses of people with H-1B visas for highly-skilled jobs to work in the United States,” according to Reuters. A group called Save Jobs USA, which advocates for American tech workers, had asked the court to find that the Department of Homeland Security did not have the authority to grant such work authorization. “The Supreme Court’s refusal to hear the case comes as President Donald Trump’s administration is moving to place limits on the H-1B program, which it claims replaces American workers with cheaper foreign labor.”
• Iowa Counties Take Carbon Pipeline Setback Fight to the Supreme Court (Violet George, Carbon Herald) — Two Iowa counties have asked the Supreme Court to weigh in on a dispute over a proposed carbon capture pipeline and determine “their authority to regulate” how close the “pipeline can run to schools, churches, and other buildings,” according to the Carbon Herald. The counties are appealing a decision from the U.S. Court of Appeals for the 8th Circuit, which “blocked them from enforcing local setback ordinances.” “The ordinances were enacted after residents raised safety and property concerns over the 2,500-mile Summit pipeline, which would collect carbon dioxide from ethanol plants across the Midwest and store it underground in North Dakota. Summit sued, claiming that the federal Pipeline Safety Act overrides local safety rules.”
• Want to understand the Supreme Court? Look at what different justices call ‘tragic’ (Jordan Rubin, MSNBC) — In an analysis of Tuesday’s order list, MSNBC’s Jordan Rubin highlighted two uses of the word “tragic” – one in a dissent by Justice Sonia Sotomayor and one in a statement by Justice Samuel Alito – and contended that their writings shed light on the gap between the court’s most liberal and most conservative camps. In her dissent, Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, was drawing attention to what she felt was a “tragically” wrong decision by the court to decline to review a death sentence that arose out of “extraordinary misconduct” by a juror. In his statement, Alito, joined by Justices Clarence Thomas and Neil Gorsuch, used “tragic” to describe allegations that a school district’s policies “purposefully interfere with parents’ access to critical information about their children’s gender-identity choices and school personnel’s involvement in and influence on those choices.”
• A Supreme Court Reckoning for Racial Gerrymanders (Wall Street Journal Editorial Board) — In a column on Louisiana v. Callais, a major case on the Voting Rights Act that will be heard today, the Wall Street Journal Editorial Board called on the Supreme Court to end “the cynical use of race by both major parties to advance their partisan interests” by holding that Louisiana’s intentional creation of a second majority-Black district, a step it took to satisfy Section 2 of the VRA, violated “the Fourteenth Amendment’s Equal Protection Clause and the Fifteenth Amendment’s prohibition against abridging a citizen’s right to vote based on race.” “The Justices would do the country and themselves a favor by … declaring that the Constitution forbids race-based map-making,” the editorial board wrote.

SCOTUS Quick Hits

• Today, the court will hear argument in Louisiana v. Callais, on race-based redistricting and the Voting Rights Act, and Case v. Montana, on whether law enforcement may enter a home without a search warrant based on less than probable cause that an emergency is occurring. You can find our case previews here and here.
• As noted above, on Tuesday, the court released an order list with more than four pages of denied petitions. Read more about the appeals that the justices declined to hear in the On Site section below.

A Closer Look: The Government Shutdown and the Judiciary

As the federal government shutdown reaches its two-week mark, so does its impact on the federal judiciary. The government shutdown began on Oct. 1, after Congress failed to enact appropriations or a continuing resolution by the end of the fiscal year – marking the first such funding lapse since the record 35-day shutdown of late 2018 and early 2019. 

The Supreme Court should remain relatively unaffected, as it relies on permanent funds not subject to annual approval to maintain standard procedures. Indeed, as a spokesperson for the court confirmed, it “will continue to conduct its normal operations” during a lapse in appropriations. This business-as-usual approach extends to the physical operations of the Supreme Court – the building remains open to the public and continues to host members of the public attending oral arguments.

But what about the rest of the judiciary? For the lower courts, the shutdown means operating on limited reserves while fulfilling their constitutional duties under Article III to hear and resolve cases. The Administrative Office of the U.S. Courts stated on Oct. 1 that “paid operations” can continue through Friday, Oct. 17, using carryover fees and balances, but it has not released further updates. If the shutdown persists after that date, the judiciary will shift to essential functions only, potentially furloughing “non-essential” staff.

This “trickle-down effect” of the shutdown also means that while criminal cases (which are generally deemed essential) are proceeding and will likely continue to proceed, civil cases involving the federal government have already faced efforts by government counsel to seek delays (which the courts then have discretion to grant). The U.S. Court of Appeals for the 2nd and 9th Circuits have issued orders tolling or staying filing deadlines for parties represented by the federal government or federal attorneys. And if the shutdown continues, courts (with the exception of the Supreme Court) may have to delay other cases, suspend certain court functions, and cut operating hours.

SCOTUS Quote

“Although the Court does have awesome powers, it has no authority to print its own money.”

— Lyle Denniston

On Site

From Amy Howe

Supreme Court Rejects Hearing Several Cases

The Supreme Court on Tuesday morning turned down a plea from conservative media personality Alex Jones to hear his appeal of a Connecticut case brought by families of the children killed at Sandy Hook Elementary School more than a decade ago, in which he was found liable for defamation and emotional distress. The court also rejected an appeal by several Colorado parents, who contend that a school district in that state violated their constitutional rights when they excluded them from discussions of their children’s gender identity. The announcements came as part of a list of orders released by the Supreme Court from the justices’ private conference on Oct. 10. For more on the order list, read Amy’s analysis.

From Zachary Shemtob

A Dive into Justice Kennedy’s New Memoir

Within the next few weeks, SCOTUSblog will publish a review of former Justice Anthony Kennedy’s new memoir, Life, Law and Liberty. To whet readers’ appetites, however, Zachary Shemtob highlighted some of the book’s most interesting passages. Check out Zach’s story to see some of Kennedy’s thoughts on originalism, controversial cases, abortion, Vladimir Putin, and music.

Contributor Corner

Callais, Originalism, and Stare Decisis

In his latest Justice, Democracy, and Law column, Edward Foley considered how originalists like Justice Amy Coney Barrett interpret the Constitution and what that means for Louisiana v. Callais, a major case on the Voting Rights Act. The case puts a spotlight on two lines of precedent related to race and redistricting, Foley wrote, and “a good originalist would resolve the tension” by reconsidering and then jettisoning Shaw v. Reno, which held that a redistricting effort in North Carolina violated the 14th Amendment’s equal protection clause because one of the resulting districts could not be “understood as anything other than an effort to separate voters into different districts on the basis of race.”

The court in Shaw never attempted to defend its “equal protection” ruling on originalist grounds. Justice Sandra Day O’Connor, who wrote the court’s opinion in Shaw, was not an avowed originalist in the way that Barrett is. Rather, Shaw was a judicial exercise of constitutional policymaking of precisely the kind that originalists abhor. O’Connor and the rest of the five-member majority of the court in Shaw saw race-based districting as “pos[ing] the risk of lasting harm to our society” and thus to be condemned. That form of reasoning is, most emphatically, not originalist constitutional interpretation.