Back to court

Tuesday's SCOTUS arguments will be a first sign of the court we're dealing with this term. Also: Louisiana redistricting. And: Florida has an execution set for Tuesday.

Photo by Joshua Woods on Unsplash

The Supreme Court is back.

At 10:00 a.m. Monday, the justices are slated to take the bench and begin the new term.

This past term was a term in which the conservative justices made clear that they controlled the outcomes — even as some of them held back at times. As I wrote as the justices were leaving for the summer:

The right has the votes, and they will move in ideological cases as they want and when they want.

That doesn’t mean they’ll always vote in lockstep, and it doesn’t mean they’ll always support every radical theory cooked up in a Federalist Society or Alliance Defending Freedom lab.

But, they can.

This new term beginning on Monday is one where those justices, given the past term, are facing pushback from the somehow even further right. Or, as Elie Mystal so astutely put it on Friday, “This term is conservatives v. nihilists. This term is Law v. the 5th Circuit.”

Cases and arguments from the far right are making their way to the court. They are, quite clearly, attempts to use the conservative supermajority while they have it. Sure, analysis suggests that the conservative majority is safe on the court for more than a decade. And yet, looking at recent history, advocates with far-right goals — be they economic, governmental, social, or otherwise — are making their moves now.

And while all of these cases won’t make it to the merits docket, the conservative justices want to take some of these cases coming their way and can’t avoid others — due to the procedural posture in which the cases come to the justices, circuit splits, or other reasons.

The Republican appointees — particularly Chief Justice John Roberts and the Trump appointees, Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — will have to keep deciding whether they want to correct the radical rulings of the Fifth Circuit (and other courts) and reject similar arguments from other corners or whether they want to just keep moving even further right — and into lawlessness or pure politics (or both).

Which brings us to Monday.

Even though the court added a dozen cases — including a major pair of internet regulation cases — to its merit docket on Sept. 29, the dearth of cases the court had granted before summer recess (22) means that we will only be having arguments in one case each argument day this week.

First up on Monday, a statutory interpretation case about language in the First Step Act in Pulsifer v. US. (Before that, at 9:30 a.m., the court will release the full list of orders out of last week’s long conference — primarily, cases the justices won’t be hearing.)

On Tuesday, though, a key case that will give us some insight into what this term will look like comes out of a Fifth Circuit decision from a three-Trump-appointee panel. In Consumer Financial Protection Bureau v. Community Financial Services Association of America, the technical question is about the CFPB’s funding source, but the overarching — and potentially term-defining — question is whether this is going to be one of a series of cases in which the court seeks to substantially cut down the modern administrative state.

Along with Loper Bright Enterprises v. Raimondo’s Chevron test questions about agency deference and Securities and Exchange Commission v. Jarkesy’s questions about administrative enforcement, the trio of cases could mean that the executive branch — and the legislative branch — would be operating on dramatically different terms by next June. The trio of cases might not come out the same way, but Tuesday’s arguments will be an important moment to see where the court is at going into this new term.

And, on Wednesday, the justices will hear a case about the future of Americans with Disabilities Act enforcement. In Acheson Hotels v. Laufer, the justices will consider whether “testers” — people suing for alleged violations of the accessibility law's requirements who have no intention of using, for example, the hotel at issue here — have standing under the law, as well as (possibly) whether Laufer’s case is moot.

Louisiana redistricting hits SCOTUS

The shadow docket shows no signs of slowing down as the justices return to the bench.

On Saturday, lawyers challenging Louisiana’s congressional map went to the Supreme Court, seeking relief in the wake of an unusual move from the U.S. Court of Appeals for the Fifth Circuit.

On Thursday, Sept. 28, the appeals court halted a district court’s remedial hearing scheduled in the case for Oct. 3 in the ongoing challenge. The formal order was a writ of mandamus, a rarely issued method of taking direct action against another official.

A district court held the state’s map to be likely illegal under Section 2 of the Voting Rights Act, issuing a preliminary injunction in June 2022. That was then put on hold while the Supreme Court considered the similar Alabama case. Now that the Louisiana case is moving forward again, an appeal of that June 2022 ruling is due to be heard by a Fifth Circuit panel on Friday.

This past Thursday, though, a 2-1 ruling from a different panel of that appeals court halted remedial proceedings that were going forward during the state’s appeal. Judge Jennifer Elrod, a George W. Bush appointee, wrote the decision granting the writ of mandamus, and she was joined in the majority by Judge James Ho, a Trump appointee, who also wrote a concurrence.

In essence, the majority concluded that the district court did not give the state a proper opportunity to fix the problems identified in the preliminary injunction entered in the case — even though that preliminary injunction was initially issued more than a year ago.

“Ever since its initial forays into legislative districting, the Supreme Court has explained the proper procedure to implement federal court judgments while accommodating to the greatest extent the legislatures’ ability to confect their own remedial plans,” Elrod wrote. “The district court here forsook its duty and placed the state at an intolerable disadvantage legally and tactically.”

Judge Stephen Higginson, an Obama appointee, dissented, largely arguing that the ruling was an inappropriate and unnecessary use of mandamus, since the state could appeal any later decision of the district court. Moreover, he noted, this is a long-running case.

“It is this yearlong process that the majority inexplicably calls a ‘game of ambush’” by the district court in setting the remedial hearing, he wrote.

On Saturday, the plaintiffs in both consolidated cases asked the Supreme Court to stay the mandamus and allow the district court to proceed. One set of plaintiffs, represented by the NAACP Legal Defense and Education Fund, ACLU, and several others, alternatively asked the Supreme Court to treat the stay request as a petition for certiorari, grant certiorari, and summarily reverse the Fifth Circuit’s grant of mandamus.

[Update, 5:15 p.m. Oct. 2: On Monday, the Supreme Court announced that responses to the plaintiffs’ stay motions had been requested. Any responses are not due until 5:00 p.m Oct. 10, so the remedial hearing halted by the Fifth Circuit that was supposed to begin Tuesday will not go forward for the time being.]

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Florida plans Tuesday execution

Michael Zack is scheduled to be killed by the state of Florida on Tuesday for the 1996 murder of Ravonne Smith. He is also serving a life sentence for the killing of Laura Rosillo that same year.

Before the U.S. Supreme Court currently are questions out of state court about whether lower courts properly considered the effects of Fetal Alcohol Syndrome on him and whether the fact that a nonunanimous jury recommended death renders his sentence unconstitutional and out of the U.S. Court of Appeals for the Eleventh Circuit about whether Florida’s clemency process violates due process guarantees.

Florida has opposed both petitions and requests for a stay of execution.

If the execution proceeds, it would be the sixth carried out by Florida this year and the 19th execution in the United States this year.

[Update, 4:00 p.m. Oct. 2: The Supreme Court denied both petitions and requests for a stay of execution.

There were no noted dissents.]