SCOTUS conservatives score another law-free win — and even Neil Gorsuch thinks they're overdoing it

Plus: George Santos is really something else. And: Oregon Gov. Kate Brown names her high court picks. One is a former public defender.

The political news in the last week of 2022 has focused on Rep.-elect George Santos.

The Dec. 19 New York Times investigation from Grace Ashford and Michael Gold into the oh-so-many-questions about Santos’s past and past statements has led to 10 days of fallout for the Republican elected to Congress in November.

While most of the stories have focused on the political consequences, if any, of his lies and “embellishments,” news turned Wednesday to his finances and the potential legal implications for Santos.

This is a story that will take us into 2023.

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SCOTUS, UNINTERRUPTED: The Supreme Court apparently couldn’t let 2022 come to a close without one more reminder that law means little these days — so long as there are five votes for the conservative ideologues’ aims.

On Tuesday, it was a 5-4 order in a “shadow docket” case that went too far even for Justice Neil Gorsuch.

The conservatives, including Chief Justice John Roberts, issued an unsigned order halting enforcement of a trial court order that would have ended the Title 42 policy — a Trump-era policy that has allowed immediate expulsion of would-be immigrants, including those seeking asylum, as a public health emergency because of Covid since March 2020.

Although the Biden administration has sought to end the policy, those decisions from Biden officials to end the policy have been held up in ongoing court challenges. Tuesday’s decision related to a federal court order from November that went further, finding that the Title 42 policy itself was to be vacated. In other words, the policy would no longer be able to be enforced.

The five justices on Tuesday stopped that order from going into effect. They did so with little explanation and under procedural circumstances that led to a dissent from Gorsuch, in which he was joined by Justice Ketanji Brown Jackson. (Justices Sonia Sotomayor and Elena Kagan also opposed the majority’s decision, but they did not explain their reasoning.)

Most remarkably, the five justices issued their order at the request of states that are not even parties to the litigation and after the US Court of Appeals for the DC Circuit denied those states’ request to intervene in the litigation on appeal.

Chris “Subscribe to Law Dork!” Geidner @chrisgeidner

This is an extraordinary order from #SCOTUS, which Gorsuch hints at in his dissent. Five conservative justices, including Chief Justice Roberts, have just halted a district court’s order based on a request from states that are NOT parties to the litigation at issue.

In addition to halting the court order below, the majority announced the Supreme Court will hear the states’ case for intervention in the case this term, with oral arguments in late February 2023.

As Gorsuch put it, however, “[I]t is unclear what [the Supreme Court] might accomplish” by considering the states’ request to intervene in the case over the Title 42 policy, given that the Title 42 policy was terminated by the Biden administration in April.

Gorsuch acknowledged, though, the real purpose of the order by Roberts and Justices Clarence Thomas, Sam Alito, Brett Kavanaugh, and Amy Coney Barrett. It was to keep the Title 42 policy in effect for a bit longer because, as Gorsuch wrote, the complaining states say they are dealing with “an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it.”

But, Gorsuch — again, joined by Jackson — countered:

[T]he current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.

(As I noted on Twitter, outside of this case, expect to see this language quoted in the coming weeks in briefs opposing the Biden administration’s student loan forgiveness plan.)

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Oregon Gov. Kate Brown (White House Photo by Adam Schultz)

A NEW PUBLIC DEFENDER JUSTICE: On Wednesday, outgoing Oregon Gov. Kate Brown announced two appointments to the state’s supreme court.

One of the appointees, Bronson James, is a former appellate public defender with the Oregon Office of Public Defense Services. He has been an appellate judge for the past five years.

The move from Brown to appoint a criminal defense lawyer with public defender experience was all the more notable following last week’s high court picks from New York Gov. Kathy Hochul and Ohio Gov. Mike DeWine, both of whom picked longtime conservative prosecutors for vacancies in their respective states.

Stephen Bushong, the other Oregon Supreme Court appointee, worked in the Oregon Attorney General’s Office for many years, primarily in the Special Litigation Unit. In a 2020 candidate questionnaire, Bushong highlighted his defense of Oregon’s Death With Dignity Act against opposition from the Ashcroft Justice Department under President George W. Bush as his work in the Oregon AG’s Office of which he is most proud.

Brown also appointed a current public defender to the Multnomah County Circuit Court, the state trial court that covers almost all of Portland. Her appointee, Bryan Francesconi, currently works at the Oregon Federal Public Defender’s Office after more than a decade at the state’s Metropolitan Public Defender.

In addition to this week’s judicial appointments, Brown has also issued several significant clemency grants in the closing months of her time as governor — making a clear effort to close the door on her time in the governor’s office by addressing at least some longstanding injustices in our criminal legal system through her executive powers.