Roberts Strategy To Be Revealed Tomorrow?

For the last several months--since the abdication of the Roberts SCOTUS from involvement in Election 2020--we've been speculating about a possible 'Roberts strategy' for election law. The basic idea is that, based on recent election law rulings, CJ Roberts has devised a federalist strategy for extricating the SCOTUS from the swamp of election lawsuits--to the extent possible--by returning primary responsibility for elections to the states. Which is precisely where the Constitution places the exclusive responsibility. What a concept! That, of course, would run counter to the federalization of all elections that has been trending--at the instigation of the Left--for several decades.

The rubber may hit the road on Monday, when Jonathan Turley expects a ruling in the Arizona election law case that came to the SCOTUS from the Ninth Circuit. This term--since the election in any event--the SCOTUS seems to have adopted a policy of issuing quite narrow--perhaps excessively narrow--rulings, but on largely unanimous grounds. But it's difficult to see the Court disposing of the AZ case on narrow procedural grounds if Roberts truly has a strategy in mind. The AZ case seeks to legitimize the Left's favorite electoral tactics of ballot harvesting and so forth which the AZ law bans. If the Roberts court returns responsibility to the states there should be a scramble to rewrite elections laws--with the legislatures being held accountable to the voters.

In this context of a pending decision in the AZ case, DoJ took the step of initiating a lawsuit challenging Georgia's new law. Does the Zhou regime know something? Or, in my opinion, is this a last ditch effort to influence the SCOTUS decision in the AZ case? Or is it possibly an attempt to steal some of the thunder from a decision that Dems fear, for consumption of their base? 

Jonathan Turley, law prof at Geo Washington U., has weighed in at Fox News with some interesting thoughts on the matter.

WHOA! Did I Majorly Jump The Gun?

Hey, no wonder legal commentators--the good ones--read the whole opinion before commenting on SCOTUS decisions. I've just read portions of Alito's opinion at LifeSite, and it's a slash and burn opinion:

MAJOR UPDATE: Law Day #1: SCOTUS Goes 9-0 Again, And Lib Heads Will Explode

The significance of the latest 9-0 decision handed down by the SCOTUS--this one has to do with local governments trying to exclude foster care agencies on religious grounds--is that the SCOTUS is sending a strong signal that they will continue to defend the First Amendment free exercise rights of all Americans, not matter the current fashion in wokeness. That shouldn't be news, but in today's America it's a message to normals that an important institution may have their back after all. It's also a strong message to the Left, given the 9-0 breakout.

There's very little commentary out yet, but here's the link to the Fox article:

Supreme Court sides with Catholic foster agency that excludes same-sex couples in 9-0 ruling

Chief Justice John Roberts wrote the majority opinion

Excerpts:

The Supreme Court sided unanimously with a Catholic foster agency in a dispute against the city of Philadelphia over whether it should be banned from participating in the city's foster program because it excludes same-sex couples. 

The group, Catholic Social Services (CSS), claimed that "Philadelphia’s attempts to exclude the Catholic Church from foster care" violated the First Amendment. Lawyers for the city, meanwhile, said that CSS "lacks a constitutional right to demand that DHS offer it a contract that omits the same nondiscrimination requirement every other FFCA must follow when performing services for the City." 

In a 9-0 ruling, the justices sided with Catholic Social Services. 

"CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else," Chief Justice John Roberts wrote in a majority opinion. "The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment."

Roberts was joined on his opinion by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Amy Coney Barrett. 

Barrett herself wrote a concurring opinion, which was joined fully by Kavanaugh and partially by Breyer. 

"As the Court’s opinion today explains, the government contract at issue provides for individualized exemptions from its nondiscrimination rule, thus triggering strict scrutiny," Barrett wrote. "And all nine Justices agree that the City cannot satisfy strict scrutiny." 

Justice Samuel Alito wrote a concurring opinion that was joined by Justices Neil Gorsuch and Clarence Thomas. Gorsuch wrote a concurrence that Thomas and Alito joined. 

Briefly Noted: Another 9-0 SCOTUS Case

This terms there has been a string of unanimous or near unanimous cases. Court watchers have noticed and speculate that a message is being sent. I won't discuss the merits of this case--there are plenty of competent lawyers who are doing that right now--but:

BREAKING: KAGAN Writes 9-0 Supreme Court Opinion Rejecting Liz Warren's Subversion of Immigration Law
PJ Media ^ | June 7, 2021 | Tyler O'Neil

On Monday, the Supreme Court unanimously rejected an illegal immigrant’s attempt to twist immigration law and create a loophole that would allow thousands of illegal immigrants to become lawful permanent residents. Democratic senators and attorneys general advocated for this loophole, but a liberal justice wrote the opinion for a unanimous Court.

What has become very obvious from this string of cases is that, if a message is being sent, that message is being sent to liberals and progs. Dems. What is that message?

This is strictly speculation, but is it possible that the liberal justices have come to the realization that decades of "living constitution" excesses have led much of the American ruling class to view the SCOTUS as no more than a convenient vehicle for enacting social transformation that would be difficult to enact by normal means? I know that's not a startling insight, but it just might be for the liberal justices, and especially because such a realization would hit them exactly where they live--in a co-equal and supposedly independent branch of a constitutional republic.

Such a realization--and I'm far from the first to suggest this--may have come about as a result of the various Court packing schemes the Dems have been floating. It's become increasingly clear that the prog agenda of the Zhou regime isn't going anywhere--at least not in Congress, thanks to Manchin and Sinema (and possibly a few more). Moreover, cases like this one make it appear increasingly likely that the regime's prog agenda may not be going very far by other (regulatory) means, either. It will certainly encourage challenges to prog interpretations of existing laws and regs.

If so, the message being sent could be a counterpart to the Roberts Strategy we've speculated about previously. Not only is the SCOTUS seeking to get out of the election law business to the extent possible, by laying down rulings (soon to come in the AZ case??) that encourage state legislatures to exercise their constitutional authority (as certain states are showing a will to do), but the liberal justices may be signaling a disinclination to remain in the social transformation business--Election 2020 may have awakened them to the dangers involved. Not least among those dangers would be the prospect of a constitutional demotion or degradation (even a defenestration) of the institution they inhabit--that is clearly part of the prog agenda.

This is, of course, speculation. Nor do I expect unanimity to continue indefinitely. I'm simply suggesting that the SCOTUS may have received a wake up call and may be trying to come to grips with realities that the liberal justices may not have anticipated. It's something to keep an eye on.

How The SCOTUS Picks Cases

Recently in discussing the putative Roberts Strategy, I made a major point of stressing that the SCOTUS does not simply take all appeals. In point of fact, the Court accepts very few appeals. It's not my purpose here to try to provide a tutorial on SCOTUS authority and procedures, nor am I truly qualified to do so. You can find a concise and competent Wikipedia version at:

Procedures of the Supreme Court of the United States

with special attention to

Appellate jurisdiction and 

Original jurisdiction

My reason for returning to this subject has to do with the next section--Selection of cases. However, selection--which is largely discretionary--can and does interact with jurisdictional issues in ways that can be somewhat opaque.

To start with, we should note how rare it is that a case actually gets to the SCOTUS, and most of those cases fall under "Appellate jurisdiction". Cases of "Original jurisdiction" are infrequent, typically only one or two per term--simply because cases of that sort are by their nature rare. Note this carefully:

The number of original jurisdiction cases heard by the court is small; generally only one or two such cases are heard per term. Because the nine-member Supreme Court is not well-suited to conducting pretrial proceedings or trials, original jurisdiction cases accepted by the Court are typically referred to a well-qualified lawyer or lower-court judge to serve as special master, conduct the proceedings, and report recommendations to the Court. The Court then considers whether to accept the special master's report or whether to sustain any exceptions filed to the report.

In terms of overall numbers of cases accepted, those are only about 1% of petitions received at the SCOTUS:

Since the Judiciary Act of 1925 ("The Certiorari Act" in some texts), the majority of the Supreme Court's jurisdiction has been discretionary. Each year, the court receives approximately 9,000–10,000 petitions for certiorari, of which about 1% (approximately 80–100), are granted plenary review with oral arguments, and an additional 50 to 60 are disposed of without plenary review.

With regard to the TX case that we discussed, I believe that we can see there an instance in which jurisdictional issues interact with principles involved in the discretionary selection of cases. There was no real doubt that the issue presented by TX fell under "Original jurisdiction." The SCOTUS did not dismiss the case as not within its jurisdiction, nor did it dismiss the case as failing to state a judiciable issue. 

Nevertheless, it appears that for reasons that remained unstated the SCOTUS decided that they should stay out of the election disputes at that point. We speculated on those reasons, so we won't go through that again--the reasons remain, after all, speculative for all but Court insiders. Possible factors included the enormity of what had happened and the short time involved, the prospect of national disruption, the justices preference for deciding these issues on a different basis, and the fact that another important election law case was already pretty much in the pipeline to the SCOTUS. 

Whatever the reason, the SCOTUS was then presented with a difficult issue: How to dispose of the case while leaving the issues undecided and without prejudicing their own jurisdiction if future cases of similar sort should arise which they might want to decide on the merits. Openly attempting to decline the case on a purely discretionary basis was a non-starter--even though that was in effect what they were doing. That, I suspect, is how the device of "lack of standing" was selected. Standing is one of those issues that the SCOTUS can play around with and change the rules according to circumstances. Thus, they accomplished their purpose without hamstringing the Court for the future. 

That's a theory, and all are free to disagree or to critique any or all of my analysis. Whether or not that was the smart thing to do is a separate issue, which will play out in the future.