Overtime July begins with Emanations and Penumbras from the Shadow Docket

The Court quietly ruled on Abortion, Free Exercise, the Mueller Report, Voting Rights, and the Suspension Clause.

|The Volokh Conspiracy |

Blue June is so last month. Now, we are in Overtime July. Yes, the Supreme Court term has gone into extra innings. Eight months were not enough. Now, we need a ninth. So far, we do not have any signed opinions from July. But the Court has made a number of significant moves on the shadow docket. The Court's first action for Overtime July was a short, three-page order. The Court quietly ruled ruled on Abortion, Free Exercise, the Mueller Report, Voting Rights, and the Suspension Clause.

Abortion

If you blinked, you'd miss the fact that the Court passed on six abortion-related petitions! First, the Court GVR'd Box v. Planned Parenthood of Indiana and Kentucky in light of June Medical. This case has been lingering for some time. In September 2018, Indiana filed a petition for a writ of certiorari. It presented two questions presented:

1. Whether a State may require health care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation.

2. Whether a State may prohibit abortions motivated solely by the race, sex, or disability of the fetus and require abortion doctors to inform patients of the prohibition.

The case was distributed at 15 (!) conferences. Finally, in May 2019, the Court issued a three-page per curiam decision. The Court GVR'd on Question 1. It explained that the Seventh Circuit failed to apply the appropriate standard of review. However, the Court denied review on Question 2.

Indiana filed another cert petition in this litigation on February 4, 2019. This case presented a different question:

May a State, consistent with the Fourteenth Amendment, require an ultrasound as part of in-formed consent at least eighteen hours before an abortion?

This case was distributed at seven conferences. And finally, on July 2, the Court GVR'd the ultrasound case in light of June Medical.

Indiana had filed yet another cert petition in December 2019. This petition raised the third-party standing issue, which has now been resolved. The petition also presented a notification-related question:

Whether Indiana may, consistent with the Fourteenth Amendment, generally require lawyers for unemancipated minors to notify parents of court-authorized abortions, subject to judicial bypass upon a finding that such notice would be against the mi-nor's best interests.

Presumably both of these Box cases will come back on appeal next year. And in that case, the Chief will likely only consider whether the law imposes an "undue burden," and not consider whether the law provides any actual health benefits. The notification law seems like the sort of law that would survive under Casey, as re-envisioned by the Chief.

On July 2, the Court also quietly denied review in four other abortion cases. First, the Court denied review in Yost v. Planned Parenthood. This case raised the third-party standing issue, and a question about attorneys' fees. Second, the Court denied review in Hill v. Whole Woman's Health. This raised some issues about the licensing of abortion clinics. Third, the Court denied review in Reilly v. City of Harrisburg and Price v. City of Chicago. Both of these cases considered challenges to "buffer zones" surrounding abortion clinics. Justice Thomas would have granted the petition in Price. That case expressly asked the Court to reconsider Hill v. Colorado in light of Reed v. Town of Gilbert and McCullen v. Coakley.

The Court quietly dropped six abortion cases from its docket without a blip. The Chief is waiting for his preferred abortion vehicle at the right time. The game of 87-dimensional chess continues.

Free Exercise

On July 2, the Court also GVR'd St. Augustine School v. Stand in light of Espinoza. This case presented two-free exercise issues.

1. Whether the Free Exercise Clause prohibits the government from requiring a religious adherent to choose between following his or her faith tradition as he or she sees fit and the receipt of otherwise-available government benefits.

2. Whether the Religion Clauses prohibit the government from rejecting a private party's assertion that it is not affiliated with a specific organized religious group, where the sole basis for the government's decision is the religious label the party has assigned to itself.

This case now heads back to the Seventh Circuit.

Mueller Report

Remember the Mueller Report? For some time, it was the most important document around. Now, it barely warrants a mention. You may recall that parts of the Mueller Report were redacted. D.D.C., and later the D.C. Circuit, ordered the Trump Administration to release redacted portions of the report. In May, the Solicitor General sought a stay from the Supreme Court. It was granted on May 20, so long as a cert petition was filed by June 1. The briefing was fully completed on June 18. After distributions at two conferences, the petition was granted on July 2.

The cert grant, by itself, is a temporary victory for the Trump Administration. Had cert been denied, the stay would have been lifted, and D.D.C.'s order would have gone into effect. Now, this issue may linger till June 2021. At that point, President Trump could be out of office, and the House Committee would have a lessened need to access the documents. In any event, the redactions will not be made public before the election

There is another possible angle. Judge Rao's dissent in the D.C. Circuit suggested that the House may lack Article III standing. In theory, the Court could remand the Mueller case after it decides the House Committee's tax return case. But the fact that the Court granted here, and didn't wait for a GVR, signals that a the tax case may not affect the outcome of the Mueller case.

Election Law

Here in Texas, people over the age of 65 are eligible to receive an absentee ballot. But people under the age of 65 have to meet certain criteria. The Texas Democratic Party argues that this regime violates the Twenty-Sixth Amendment. The Fifth Circuit disagreed. The Petitioners then asked the Supreme Court for an emergency application to stay the Fifth Circuit's ruling. They also filed a petition for a writ of certiorari before judgment.

On June 26, the Court denied the stay. Justice Sotomayor wrote a statement respecting the denial:

This application raises weighty but seemingly novel questions regarding the Twenty-Sixth Amendment. I do not dis-agree with the decision to refrain from addressing them for the first time here, in the context of an emergency application to vacate a stay of an injunction. But I hope that the Court of Appeals will consider the merits of the legal issues in this case well in advance of the November election.

Six days later, on July 2, the Court denied the motion to expedite consideration of the petition. As a result, there is no likely chance this issue is resolved before the November election.

Later in the evening, the Court decided another abortion related case. A federal district court in Alabama had issued an order to remove some restrictions on voting during the pandemic. Alabama sought a stay from the Supreme Court on June 29. Three days later, it was granted. The Court split 5-4, with Justices Ginsburg, Breyer, Sotomayor, and Kagan in dissent.

Say what you will about the Chief, but he is locked in on voting rights cases. I think every district court order that makes it easier to vote before an election will be stayed, 5-4.

Suspension Clause

In my view, DHS v. Thuraissigiam has interred the Supreme Court's Suspension Clause jurisprudence (See here, here, and here). And on July 2, the Court quietly denied another Suspension Clause challenge. Hamama v. Adducci considered a statute that divests the district courts of jurisdiction to hear claims brought under the Convention against Torture. After Thuraissigiam, there was no interest to decide whether this statute violates the Suspension Clause.

Stay tuned for opinions on Monday, as Overtime July continues.

NEXT: Golden State Killer’s Capture Complicates Documentary I’ll Be Gone in the Dark

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  1. “The Court quietly ruled ruled on Abortion, Free Exercise, the Mueller Report, Voting Rights, and the Suspension Clause.”

    What is the contrast to the Court “quietly” ruling on case? The rulings and opinions are released by the Court almost immediatley online, regardless of any perceived degree of importance. And, despite Josh’s love for pithy buzzwords, the Court’s docket is available to everyone on its website, with docket entries regularly updated. I’m not sure how a docket book, made available to the public via the Court’s website, is in any way in the “shadows” (if you want to see a shadow docket, try navigating the multiple hardbound docket books of the early 1900’s Court…ugggg).

    But I digress; isn’t the “loudness” of a ruling determined by the media attention that follows it, as opposed to anything the Court itself does? If an action taken by the Court is perceived to be “quietly” done, the most reasonable explanation is that major media outlets did not view the action as warranting headline status. Hence, the value of niche outlets like Scotusblog.

    I see a possible successful future for Josh at Fox News, MSNBC, or even CNN. His ability to over-sensationalize every event in an attempt to draw a crowd is just the sort of skill those outlets value.

    1. To be fair, discussion and even scholarly study re: the so-called “shadow docket” has been a thing before Blackman started posting on it (see, e.g., Will Baude). That being said, Blackman can make something mundane, technical, or abstract seem exciting and significant. He may overdo it at times, but it makes for interesting reading nevertheless.

  2. This is all interesting, but hardly unexpected. Generally the court GVRs all issues tangentially related to a new opinion so the lower court can take that opinion into account.

    Even if the reasoning used in the new opinion is completely separate from the reasoning in the new case, they still GVR because why not avoid conflict.

    The election law is a new development. It will be interesting to see how covid 19 plays out with election legal challenges more generally. This is a mess. Primary results are coming in, I have no idea the accuracy of the results, and it seems mail in, combined with the current climate, is causing extremist candidates on both sides to unseat incumbents, which … isnt pretty overall.

    1. Republicans will continue to do everything they can to suppress voting because, as Pres. Trump was inconvenient enough to acknowledge, strong turnout diminishes the chances that the clingers will win.

      This doesn’t bother me, though, because soon nothing will enable right-wingers to remain competitive in national elections, and Republicans will no legitimate claims to moral high ground when Democrats stomp conservative positions across the board.

      1. The good thing is conservatives are armed to the teeth, and eventually, you will push them too far.

        That’s why so many of us yearn for a civil war.

        1. “yearn for a civil war.”

          You’re sick.

          1. Liberals are the sick ones.

            1. They’re not the ones openly fantasizing about killing lots of people…

        2. If you yearn for a civil war, and are confident you’ll win… what exactly is stopping you?

        3. You yearn for a civil war because you like violence and are a bad person who wants to inflict violence on other people.

          1. No, it’s because I love Western civilization that I want a civil war to preserve it. It won’t survive unless all leftists are killed, or at the very least, suppressed.

            1. You don’t see how this makes you a bad person? There is no moral universe in which you wouldn’t be the bad guy in this scenario.

              1. Nope. Anyone who opposes it is the bad person.

      2. The case could be made, that choosing a demented sniffer of young girls hair; so called, Pedo-Joe Biden; lowers turn-out via lack of voter enthusiasm.

  3. Say what you will about the Chief, but he is locked in on voting rights cases. I think every district court order that makes it easier to vote before an election will be stayed, 5-4.

    It’s not clear to me whether this is intended as praise. If it is, it’s undeserved.

    “Blue June” or not, Roberts does all he can to help Trump win reelection. Delay the release of anything negative, suppress voting, etc.

    1. Voting should not be super easy. If you can’t be bothered to get a valid photo ID, that’s on you.

      Putting up roadblocks to make sure someone is not lazy or uncommitted is not illegitimate.

      1. “Voting should not be super easy. ”

        I agree. I think an America Ninja style obstacle course should be set up at every precinct. If you really want it, you’ll work to get to that ballot box. Sure, this will disproportionately negate the older vote crucial to the GOP, but disparate impact is stupid, amirite?

        1. Voting should be limited to those who can pass a civics test, who pay federal income taxes, who have never had an illegitimate child, and whose ancestors have been here for at least 3 generations.

          1. Pfft. You might think voting should be super-easy, but I for one think if you can’t do 30 push ups you shouldn’t be given a voice in who can suck on the public teat. Slaver!

  4. This is written like you’re trying to fool people who don’t follow the Court into thinking something untoward happened when this is pretty much business as usual.

    Also: Say what you will about the Chief, but he is locked in on voting rights cases.
    This is quite a telling passage. Locked in = agrees with Blackman. Like that’s his job.

    1. I would think “locked in” means set on his beliefs. I don’t think it means “agrees with me.” Roberts goes back and forth on a lot of things, but election law is one thing he has stayed the course on.

      Like someone on the left may say Thomas is “locked in” on his opposition to abortion. Doesn’t mean that the person saying that is anti-abortion. Blackman has been overtly politicizing recent decisions but come on.

      1. I agree. I think Sarcastro misread Blackman here. (And I share Sarcastro’s eye rolling for many a Blackman self promotion.)

        1. Yeah, that’s a better reading.

    2. Over at SCOTUSblog, Amy Howe has a piece on the Court’s recent election-case rulings (reprinted from here own blog), with the headline:

      “Court grants Alabama’s request to block ruling on COVID-related accommodations for upcoming runoff election.”

      Just based on a comparison of her and Josh’s headlines, it seems pretty clear which one is writing for a scholarly and professional audience, and which is writing for an ideological and sensationalized mass likely unfamiliar with the business of the Court (Amy’s piece does not make any reference to a mysterious “shadow docket”).

      1. You’re coming off like Blackman invented the term “shadow docket.” He didn’t. In fact, I’m sure it has been discussed on SCOTUSblog more than once. There may be something to criticize in this post, but the reference to the Court’s so-called shadow docket wouldn’t seem to be one. It’s shorthand for something that otherwise world take longer to describe. Maybe Blackman should hyperlink the term to a Baude piece describing the term, as it appears some of the readers may not be familiar with it.

  5. “Say what you will about the Chief, but he is locked in on voting rights cases. I think every district court order that makes it easier to vote before an election will be stayed, 5-4.”

    Chief Justice Roberts may not be a reliable vote for specific elements of Republican bigotry and backwardness, but he is a steadfast enabler of Republicans engaging in voter suppression? That’s the ‘good news?’

    1. https://www.usatoday.com/story/news/nation/2020/07/02/woman-draws-gun-black-family-exchange-caught-video/5363743002/

      I know, in your sick world, this “lady” (the instigator, not the woman with the gun) should have every right to vote!

        1. Right. In a sane world, people with her level of intelligence and civility would not be allowed to vote.

          1. Nah, even you should be allowed.

            1. Why do you think an angry black woman with three illegitimate kids who picks fights in public and attempts to unlawfully detain pregnant women should be allowed to vote?

              1. The same reasons an angry internet troll who harbors violent fantasies should be allowed to vote.

  6. > Blue June is so last month

    Blue June is not last month, because Blue June is not a thing, was never a thing, and will never be a thing.

  7. “…Say what you will about the Chief, but he is locked in on voting rights cases. I think every district court order that makes it easier to vote before an election will be stayed, 5-4….”

    More accurate to say, “The Chief, and the 4 other conservatives, will block anything that attempts to address Republican-led voter suppression until after the November election.”

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