Welcome back, Deadline: Legal Newsletter readers. The Supreme Court has eight more cases to decide this term. Some of the biggest ones remain, including birthright citizenship. Before we get the next, but likely not the last, batch of rulings on Monday morning, let’s highlight what the GOP-appointed majority did in this week’s two decision days, on Tuesday and Thursday.
The court started the week Monday with its routine order list that functions as a snapshot of the court’s priorities. These lists are where the justices say which new cases they’re taking up and, as important, which cases they’re rejecting. In typical fashion, this week’s list featured the right and left wings of the court dissenting from their colleagues’ refusal to hear cases important to their sides.
For example, Justices Samuel Alito and Clarence Thomas dissented from the rejection of a government petition that questioned defendant-friendly considerations of race in police stops. Meanwhile, Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson said that the court’s refusal to intervene in a capital case “creates a significant risk” that a death row prisoner’s rights will be violated.
It takes four justices to grant review, so let’s now turn to cases that got that review this term and were decided this week. In a barrage of 6-3 rulings, the Roberts Court closed the courthouse door on claimed rights violations while curbing asylum and humanitarian protections for migrants seeking refuge in this country.
On Tuesday, nearly all the rulings were 6-3 splits, with the GOP-appointed justices in the majority and the Democratic appointees dissenting. Thomas and Justices Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh authored respective rulings restricting the rights of immigrants, prisoners and alleged torture victims, while letting a U.S. oil giant sue over seized property in Cuba.
Tuesday’s dissenters said the majority made “no sense” in the immigration ruling, left state prisoners “remediless” if their religious rights are violated, closed the door on “virtually every future litigant seeking redress for a violation of international law” and failed to apply laws “as Congress wrote them.”
On Thursday, Alito published three opinions: one striking down a Hawaii gun law, another letting the government turn away asylum seekers at the U.S.-Mexico border and a third clearing the way to end humanitarian protections for hundreds of thousands of Haitians and Syrians. All three cases split the court 6-3 along the party lines of the presidents who appointed the justices.
Thursday’s dissenters said those rulings protected guns rather than “consistently preserving any principle of law,” blessed the administration’s “decision to slam the door shut on all who are fleeing persecution” and consigned hundreds of thousands of migrants “to devastating, and indeed life-threatening, injury.”
Before the justices announced their opinions on Thursday, I spotlighted the court’s selective transparency in refusing to livestream the audio of the justices’ opinion announcements, which take place in the same public courtroom as the hearings for which the court provides an audio livestream. Little did I know that there would be a rare exchange later that morning between Alito and Sotomayor in which he reportedly seemed taken aback by the dissenting statement she gave from his opinion in the asylum case.
“There is much that I would have added to my bench statement had I known there would be a dissent read,” Alito said, according to SCOTUSblog’s Mark Walsh. Walsh’s columns provide informative and entertaining color from the courtroom, but if the justices aren’t going to televise their prepared remarks when they announce opinions, then they should at least livestream the audio, as I argued earlier that morning.
The audio is released eventually the following term, and it isn’t a total secret until then because anyone who shows up to court that day can hear it. Yet the court continues to engage in this selectively transparent behavior, leaving it up to the media (of which some justices have been critical) instead of talking directly to the American people in real time.
The semi-secretive spectacle continues Monday when the justices take the bench at 10 a.m. ET after their latest order list publishes a half-hour earlier. I preview all the remaining cases in this week’s “Ask Jordan” below.
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