Author Topic: What the Supreme Court is doing behind closed doors  (Read 738 times)

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Offline Elderberry

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What the Supreme Court is doing behind closed doors
« on: April 29, 2019, 05:08:51 pm »
CNN Politics 4/29/2019 By Joan Biskupic

Recent late-night orders, an abrupt dismissal of a case after oral arguments, and long-pending appeals that have fallen into a black hole at the Supreme Court have cast fresh scrutiny on the inner workings of America's top tribunal.

The nine justices hear arguments and issue signed rulings in about 70 cases each annual term. But that constitutes only part of their work. In an oak-paneled conference room just off the chambers of Chief Justice John Roberts, they cull through an estimated 7,000 petitions annually from people who have lost cases in lower courts. They also rule on motions to intervene in lower court proceedings, most consequentially related to scheduled executions.

In deciding what to decide, through internal rules not made public but described here, they can often influence the nation's law as much as any signed opinion.

Clashes among the justices over some of these orders, and the internal rules that guide them, have spilled out into the public sphere. Earlier this month, Justice Stephen Breyer, in a dissenting statement signed by his three fellow liberal justices, suggested that the court majority is arbitrarily applying its rules, at least in death penalty cases.

University of Chicago law professor William Baude, who has chronicled the court's "shadow docket" over the years, said Breyer's complaint underscored that when justices offer scant explanations, it is difficult to know whether they are operating fairly or unfairly.

"You reach a point when members of the court start exposing internal procedural complaints because they're so frustrated with where the court is going," Baude observed. "That can undermine the court as a court of law."

At a time when the Supreme Court is under greater scrutiny for potential partisanship, and Roberts has fought back against President Donald Trump's attacks on the judiciary, it remains difficult for the public to assess much of the court's work.

The mysteries are large and small, from ambiguous signals in capital cases to undisclosed rules governing the screening of petitions. The court does not reveal, for example, how many votes are needed when someone who has lost in a trial court seeks to bypass the usual appeals court review and go right to the justices.

Former court insiders have told CNN it takes five votes for such extraordinary review, rather than the usual four that the court states are required to grant a regular petition and hear oral arguments.

The Trump administration has sought such action in a series of cases, including in the dispute over a proposed citizenship question on the 2020 census, which the justices accepted and heard last week.

Other unknowns surround pending cases. For months the justices had declined to act in any public way on claims of workplace discrimination based on sexual orientation or transgender status, but suddenly announced in a brief order last week that they would hear, next session, a trio of long-pending LGBTQ cases.

There has been no sign of action on a long-pending case from Indiana testing a law that would, among other provisions, block abortions based on the sex, race, or disability of the fetus, or on a closely watched dispute from Oregon brought by bakery owners who were fined after declining to make a wedding cake for a same-sex couple.

The justices are now in a two-week recess. They will next issue a scheduled orders list on May 13. That is also the next likely date for signed opinions. Among the high-profile cases that have been subject to hearings are those concerning a 40-foot "Peace Cross" monument on public ground in Maryland, the census lawsuit and partisan gerrymanders in North Carolina and Maryland.