READ THAT BACK: Shutdown Edition


It’s almost hard to be disappointed in the federal government anymore, and yet they do keep trying. And so the government shut down again, over a weird sort of Sophie’s Choice where everyone wanted both children—CHIP and DACA—to live, but somehow that wasn’t enough?

(Back in college, the Court Reporter had two good friends who were very opinionated. They would often fundamentally agree, but express their agreement loudly and stridently using different words. It sounded like an argument, but wasn’t actually. It was sometimes jarring, but better, I suppose, than what we have in the federal government: An actual argument where the only impediment to agreement is to realize that there is no impediment to agreement.)

So anyway, even though those other court reporters may have been furloughed, perhaps enjoying some shutdown specials, this Court Reporter is still here for you. (And even those other court reporters weren’t actually furloughed, but whatever.) Let’s READ THAT BACK!

Mixed Signals: In curling (OMG WHO IS EXCITED ABOUT THE OLYMPICS maybe it’s the Court Reporter, I don’t know, but I can tell you my DVR is READY) it’s relatively common for the team captain (the “skip”) to instruct the sweepers with such confusing commands as “Never…never…never…NOW!” and “HARD HARD HARD WHOA!” Should I sweep? No? Ye..? Well, it may be confusing, but at least the commands are serial, and as a general matter you should be following the most recent one given. But what do you do when you get two conflicting messages simultaneously? This doesn’t happen (well, not often) in curling, but it does, apparently, happen in appealing: The federal government has decided that its DACA appeal is so important that it has to hurry to the Supreme Court, but that in the meantime it doesn’t really matter if the lower court ruling is implemented.

ICYMI:

  • Justice Sotomayor needed emergency treatment for her diabetes last week; happily she's fine and was able to go to work that afternoon.
  • Not that the Senate needs more to do (although they do need to do more), but now they have a whole slew of new judicial nominees (subscription required) to, ahem, consider.
  • Single Jeopardy, again: Sheldon Silver (subscription required) faces retrial. So does Robert Menendez. (The Court Reporter has no idea what U.S. Fashion News is or why it’s covering this story, but…okay!)
  • Oral arguments!

And Now…Roberts the Libera(lol), Part 2: Not long ago we all had a good laugh over the idea which has been floating in the ether since at least 2012 but was reprised by 538 that Chief Justice Roberts is a secret liberal. Such a kooky liberal that some were predicting—before oral arguments—that he might even vote to support the spurned gay couple in Masterpiece Cakeshop. (I’m painting with broad strokes here.)

The Court Reporter thought this a bit fanciful—Roberts still, for example, regularly votes against abortion access and LGBT equality (with, yes, the Cakeshop vote still outstanding)—and the Court Reporter isn’t alone. 

The (probably) real answer is more complicated, and it doesn’t neatly fall along the political liberal-conservative spectrum in any meaningful sense. As Buzzfeed’s Chris Geidner explains, Roberts has changed. But he hasn’t become more liberal, really, it’s that he has become more concerned about the institution of the court than on politically conservative outcomes. And as Geidner suggests, that probably matters. At the edges, this is nudging him to vote in ways that maybe don’t entirely cohere with his politics, but which also don’t uproot decades of jurisprudence.

On the 45th anniversary of Roe v. Wade, that could be important.