There's still a lot of SCOTUS waiting left — and, no, we don't know how long they'll take
There are no decisions this week until Thursday, but more decision days will follow. Also: The Post on Garland's trepidation over even investigating Trump. And: A Friday night drag ruling.
The Supreme Court calendar only has one more decision date on it: Thursday.
The court has not, as it traditionally does, announced that Thursday will be the final decision date before the summer recess, so we know there will be at least one more day after that one. [Update: There is at least one more; the court added a Friday decision date to the calendar for this week.]
But, honestly, we didn’t even need that information to know that we’re not at the end. In fact, there are almost certainly several decision days remaining.
There are still 18 cases outstanding, including both the Harvard and University of North Carolina race-conscious admissions policy cases and both the state and private plaintiffs’ cases challenging the Biden administration’s student loan forgiveness plan.
So: 16 topics outstanding. In addition to those two issues, the remaining topics include the case raising the “independent state legislature” scheme, the First Amendment case about the wedding websites (that don’t exist), the case about religious accommodations under Title VII, a handful of criminal law cases, and several other topics.
Many of these are weighty questions. They all will have nationwide effect. The results will — again — change America.
And while we generally expect all of the decisions by the end of June, careful reporters or lawyers will cabin that with such a caveat: “usually,” “ordinarily,” “generally speaking.”
Because, when it comes to the Supreme Court’s decision schedule, there are no real rules. They went into July in 2021, presumably due to the pandemic. They don’t technically need to decide cases on any schedule! Occasionally, the justices have not even decided certain cases at all during that term — scheduling the cases for re-argument the next term.
Those are the exceptions, of course, but it’s important to remember this lack of formal rules. This is particularly so this term, given that we do know certain changes have been made to the court’s internal processes for handling opinion-drafting in the wake of last term’s leak of Justice Sam Alito’s draft of the Dobbs v. Jackson Women’s Health Organization decision overruling Roe v. Wade. That could be slowing things down — and it could mean the decision schedule ends up looking a little different this year.
Or not. We truly don’t know! With three admittedly heavy, but not extremely unusual, days of 6 cases resolved each day, we could have all of the decisions before June is out.
Finally, in addition to the Thursday decision day, we are expecting orders at 9:30 a.m. Tuesday out of the justices’ private conference last week.
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DOJ and FBI’s slow march toward investigating Trump
The Washington Post’s investigation into the Justice Department and Federal Bureau of Investigation’s slow pace in — and even opposition to certain steps — looking into former president Donald Trump’s involvement in Jan. 6-related matters is a must-read report.
The story puts some significant meat on the bones of questions that have been being asked about Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco’s approach to the Jan. 6 investigations.
“‘You couldn’t use the T word,’ said one former Justice official briefed on prosecutors’ discussions,” the Post reported, on Main Justice’s discomfort with any investigative focus on the former president initially.
A moment that stuck out to me was this, detailing a decision during or around February 2021:
[A]ttorneys at Main Justice declined [a] proposal that would have squarely focused prosecutors on documents that Trump used to pressure Pence not to certify the election for Biden, The Post found.
Officials at the National Archives had discovered similarities in fraudulent slates of electors for Trump that his Republican allies had submitted to Congress and the Archives. The National Archives inspector general’s office asked the Justice Department’s election crimes branch to consider investigating the seemingly coordinated effort in swing states. Citing its prosecutors’ discretion, the department told the Archives it would not pursue the topic, according to two people with knowledge of the decision.
What did that end up meaning? “[T]he FBI did not open an investigation of the electors scheme until April 2022, about 15 months after the attack,” the Post reported, and that followed significant public pressure — including a referral of Michigan-related matters to federal prosecutors by Michigan Attorney General Dana Nessel.
Even then, though, “[T]he FBI was tentative: Internally, some of the ex-president’s advisers and his reelection campaign were identified as the focus of the bureau’s probe, but not Trump,“ the Post reported.
One last note: If you’ve been paying attention to the various Trump-related questions, this is wild:
[F]irsthand witnesses to Trump’s Jan. 2, 2021, call to Georgia Secretary of State Brad Raffensperger — in which Trump asked him to “find” enough votes to win that state — were not interviewed by the Justice Department until this year, after Smith’s team contacted them.
Seriously, read the whole report — there’s a lot more in it — to pull together several important strands from the past 30 months.
A Friday night drag ruling
I’ll certainly cover this case — over policies of a city, not a ruling on a state law — more if needed, but, for now, I just wanted to make sure I pulled this weekend, late-night ruling from the federal court in Utah over onto the newsletter for anyone who missed it.
And, just as an FYI regarding Friday’s breaking news report about the federal court order halting enforcement of Indiana’s ban on gender-affirming medical care for minors, I did go back and significantly expand the story after initial publication. So, if you only read the breaking news post, you should take advantage of this being the end of this newsletter to go read that full story.
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