Normally, at this time of the term, there is a lot to talk about.  But this year’s docket is weird in having a lot of associated cases.  As such, the meaning of one case is not clear until you have all of the related cases.  Some terms, you will get all of the related cases on the same day.  But, in other years, like this year, the release seems to be like that leaky sink faucet . . . drip, drip, drip.

This past week, we had opinions in nine cases out of the twelve/thirteen cases left.  But many of them are related to the three/four cases left.  We had three big administrative law cases, but there is one administrative law case left for an opinion tomorrow.  We had one opinion on Free Speech and social media, but there are the two cases (and one or two opinions) left for tomorrow.  And we had cases on the charges against the January 6 defendants (and a bribery case that is also significant) but we have the presidential immunity case that will put a potential gloss on both of those decisions.  So that covers six of the nine opinions from this past week.  What’s left are the emergency abortion case, the Purdue Pharma bankruptcy case, and a municipal ordinance on homeless individuals sleeping on public property.

The abortion case, Moyle v. United States, involves the conflict between Idaho’s rather draconian abortion law (which apparently only permits abortions to save the life of the mother) and the federal law on Medicaid which requires hospitals that receive Medicare to provide medically appropriate treatment (including to save the health of the patient).  Oversimplified the question is whether the Idaho statute in some way controls what is medically appropriate in Idaho or does the federal law mandate that doctors provide abortions when medically necessary even if the abortion would otherwise violate Idaho law.  The problem is that Idaho brought this case on an emergency stay request from the lower court order granting a temporary injunction and was one of the rare cases in which the U.S. Supreme Court took an appeal before the appellate court had considered the issues.  It became clear during argument that the theories of the parties on how these two statutes relate were still evolving.  So the majority of the Supreme Court decided to “dismiss as improvidently granted,” or, in plain English, the majority said that they made a mistake in taking the case as it was not (yet) ready for Supreme Court review.  While the judgment of the court is simply a one paragraph order returning the case to the Ninth Circuit for the initial appellate review, there were multiple opinions related to that order.    Justice Kagan, in an opinion joined by Justice Sotomayor, finds that it was inappropriate to take the case but suggests that Idaho is unlikely to prevail on its position that its law takes precedence over the federal statute.  Justice Barrett, joined by the Chief Justice and Justice Kavanaugh emphasized how the positions of the parties had changed since the Supreme Court took the case with the federal government disavowing the potential interpretation of its position on which Idaho based their claim for relief and Idaho relaxing what needs to be shown to support an emergency abortion.  As such, Justice Barrett felt that the need for the Supreme Court to address the novel claims on an expedited basis no longer existed.  The bottom line of these five justices is that there is no need to stay the lower court ruling and that the case should return to the lower courts to address the new positions of the parties.  Justice Jackson wrote a separate opinion agreeing that the stay should be vacated but arguing that the Supreme Court should resolve the merits now rather than sending the case back to the Ninth Circuit.   (While it is possible, and significant as far as who is writing the presidential immunity case, that Justice Jackson’s opinion started out as the majority opinion, I tend to doubt it from the text of the opinions.  Justice Jackson’s opinion does not read like an almost majority opinion, and the reasons for dismissing the case are not new.  Justice Alito’s dissent (joined by Justice Thomas and Justice Gorsuch) is along the lines of “how dare the Biden Administration use the law to frustrate our desire to allow stringent anti-abortion laws.” Continue Reading...