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The Supreme Court's big decisions are coming. What that will mean remains to be seen.
This appears likely to be the final week for decisions, although nothing is certain. Paying attention is important — for multiple reasons. Also: More about Alito.
Although we don’t know that the Supreme Court is going to finish releasing decisions this week, that is the normal expectation since Friday is the end of June and the 10 cases (and 8 topics) remaining, while including many high-profile cases, could fairly reasonably all be released this week.
That would mean that we will know the outcome in the Harvard and UNC race-conscious admissions cases, the state and individual borrowers’ challenges to the Biden administration’s student loan forgiveness program, the “independent state legislature” scheme case, the case asking whether religious adherents whose business involves speech are exempted from state nondiscrimination laws, and the case establishing the accommodations that religious adherents can get under Title VII all by noon Friday.
The other three remaining cases have to do with where businesses can be sued, how the Lanham Act (trademark law) is applied to foreign sales, and how you determine what constitutes a “true threat” under the First Amendment.
We already know the next decision day is Tuesday, and we know it’s not the final decision day. Now, we don’t know the justices are going to finish this week, but the fact that no prior weeks in June have included decision days before Thursday suggests to me that at least Chief Justice John Roberts is trying to encourage finishing things up this week. Expect more decision days to be added to the week’s calendar — announced either Monday by way of an update on the court’s website or on Tuesday when the court sits for decisions.
If the court finishes with decisions by Thursday, I’d imagine we’ll get the final orders before recess on Friday. If decisions carry over to Friday, expect the final orders on July 3.
Before all of that, this Monday, we will be getting orders out of last Thursday’s private conference of the justices at 9:30 a.m.
Those are just the preparations, though. Of course, what happens with those decisions will dramatically change the way we view this week. The decisions could change the way people live their lives, the way government operates, and the way businesses run.
Earlier in the year — certainly, at the beginning of the term last fall — it appeared that we were facing an out-of-control, reactionary court. And we’re still getting some of those decisions — I imagine we will this week as well.
But, there is something else happening. It’s not quite clear yet precisely what it is, and we really do need to see how the full term winds up before making any real assessments, but I think that we are seeing that the attention focused on the court matters.
The backlash from Dobbs, the focus on ethics, and the general increased attention on who these people are and what they’re doing with our lives is forcing the court — at least some of the justices — to think through the consequences of extremist decisions.
I don’t necessarily think that these are all even long-term changes. In both the Voting Rights Act and Indian Child Welfare Act decisions, for example, there were suggestions that future cases could be brought that might turn out differently.
But, I think we are seeing that attention — direct and not deferential — on the Supreme Court matters. And, regardless of what happens this week, that attention needs to continue — if not increase.
Note: This section was expanded after initial publication to provide additional information about the Supreme Court decision days this week.
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Two follow-up pieces to the Pro Publica Alito story
First, Pro Publica followed up their investigative story about Justice Sam Alito’s fishing trip to Alaska with a “behind-the-scenes” report on what happened that led Alito to run to the Wall Street Journal opinion pages to publish a prebuttal — some might call it a burn-book entry — to Pro Publica’s article.
The whole Sunday report is worth a read, but, in part, Jesse Eisinger and Stephen Engelberg share:
On Tuesday, [Supreme Court public information officer Patricia] McCabe called the reporters to tell them Alito would not respond to our requests for comment but said we should not write that he declined to comment. (In the story, we wrote that she told us he “would not be commenting.”)
She asked when the story was likely to be published. Certainly not today, the reporters replied. Perhaps as soon as Wednesday.
Six hours later, The Wall Street Journal editorial page posted an essay by Alito in which he used our questions to guess at the points in our unpublished story and rebut them in advance. His piece, headlined “Justice Samuel Alito: ProPublica Misleads Readers,” was hard to follow for anyone outside ProPublica since it shot down allegations (notably the purported consumption of expensive wine) that had not yet been made.
The information solidifies how, as I put it subtly at the time, Alito’s “whole move” here “is trash.”
Alito knew the story was coming, had McCabe tell the reporters that he would not be responding to the questions, and then put out a bad blog post (and that’s demeaning to blogs) saying what, in effect, should have been in any responsible public servant’s responses to Pro Publica’s questions. (Be sure to read the Pro Publica piece from Sunday to see all of the additional questions that Pro Publica says those responses, had they been sent to Pro Publica as requested, would have raised.)
It’s really peak Alito to find a way to make a story that paints him in a negative light give us a totally separate storyline — developing concurrently — that also paints him in a negative light.
While we’re at it, don’t miss Leah Litman and Melissa Murray’s Los Angeles Times opinion piece, which asks the question, “Supreme Court Justice Samuel Alito has vast power and life tenure. So what’s his problem?”
The justice seems to believe that he and the court are so thoroughly supreme that they must be free of even a whiff of public criticism. Alito demands perpetual public and professional affirmation — a safe space, if you will, where he is protected from micro-aggressions, bathed in praise and consistently depicted as reasonable and judicious regardless of whether he actually is. And when his reception falls short of that, he lashes out at his critics no matter who they are.
The pair of academics then run down a list of Alito temper tantrums, drawing this conclusion:
It takes real cheek for a member of the Supreme Court to insist that he and the institution he serves are entitled to the public’s good opinion even in the face of indefensible behavior and decisions. And Alito is not just any public official demanding praise. He is one tasked with making rules that govern the entire country, not just those who agree with him.