Supreme Court Watch

Chevron Deference 

The Supreme Court had two oral arguments on Chevron deference. The other argument involved the Takings Clause.

[There were two arguments since Justice Jackson was recused in one case. This led them to artificially split the arguments though the questions presented for argument are basically the same.

The second argument had an also ran feel, except to have Paul Clement -- conservative advocate extraordinaire -- rant a lot.]

Amy Howe at SCOTUS, usually less excitable than certain liberal court watchers, suggested the oral argument is a red flag. They are likely to "discard Chevron" or at least significantly water it down. 

The Supreme Court in recent years has been more likely to not accept agency interpretation of statutes. The original case noted that agencies should be given the benefit of the doubt if the law is "ambiguous." The agency should not ignore the law. When that occurs is quite debatable. The rules also change if constitutional rights are threatened. Now we have a made-up "major questions doctrine" rule. 

Let us say -- as one liberal commentator whose pieces seem to flag every other case as a big threat suggests might happen -- the Court decides this case on an off-ramp argument. I am unsure how much this limits court discretion. The federal government also does not grant the case is "non-ambiguous" against them. 

And, probably with language that can be applied broadly (if judges are inclined), the opinion can provide courts broad discretion to find fault with federal regulations. Chris Geidner was more upset than usual regarding the bullshit arguments made by the opponents. 

The argument put forth judges as above-the-fray truthtellers. That sentiment is a concern as much as overturning Chevron and replacing it with some other test that claims at least to some degree to trust agency review. The game also might be broader, as the usually on the money Prof. Dorf suggests (delegation).  

The next oral argument is the Trump insurrection case. Briefing taking place. 

Orders 

The justices met for their private conference on Friday (1/19). They will not have one again until February 16th. 

There were no separate orders between the two Order Lists (last Tuesday and today). The big news is that they finally (after putting it off for a long time) took Richard Glossip's case for oral argument. They just can't admit his case is so screwed up that it is just obvious that he shouldn't be executed.  

Justice Gorsuch did not take part in the decision. Justice Barrett did not take part in another decision in the Order List. Neither said why. Gorsuch served on the court of appeals where the ruling arose so that appears to be the reason.

Kagan had begun to explain why she recused. Recently, as Kagan has, Jackson also cited the basic category covered that warranted recusal, citing the Supreme Court Code of Ethics. Every justice should follow this practice. They do not.

The Supreme Court earlier notably took a case involving a criminal law involving the homeless, choosing to decide an Eighth Amendment question that is particularly novel. The Supreme Court majority has not in recent memory given much bite (other than in the capital punishment context) to Eighth Amendment limits to cruel and unusual punishments. I'm wary about the grant.

Upcoming

Their mid-winter break will be interrupted by the insurrection case. But, there is no conference scheduled for the next day. They, of course, can meet off-schedule. We might also have additional miscellaneous orders. 

We still only have one opinion (basically a short punt) for this term. There are some big issues to decide but there are also other opinions that should be quick enough. 

There is also an execution scheduled this week. 

Roe v. Wade 

Roe v. Wade was decided 7-2 on January 22, 1973. It did not make fifty. A corrupt-packed Court, got that way because Trump Republicans, overturned it in a corrupt way (more details coming out later). Perhaps, it will long term be our Kansas-Nebraska Act moment. That's a good suggestion. 

ETA: After I wrote this, the Supreme Court dropped two orders, one involving an important border dispute.