ArmoredRodent
Well-Known Member
Certainly, there's a possibility, this is a big case. But probably not a high likelihood. There's a statute in place that establishes the specific procedure to be followed in exactly this sort of situation. If you were a Justice, what would you need to see to over-ride that specific procedure? Pro tip: first and foremost, a handy rule for the irregular moves you are asking about, for a matter outside of the usual procedures, is that you need six votes, instead of the four you need to get the Court to review a case (grant cert), and the five to win. Given the recent splits in decisions, do you see six votes? (This kind of vote counting, by the way, is the FIRST question any SCotUS practitioner asks, because the Court won't waste its time if it can't come to a decision; after all, the Supremes are the only branch of the federal government that, year in, year out, finishes its work on time.)
So, a "gut feeling" that the panel is wrong, even a strongly-held belief, would be, in practitioner's lingo, "mere error," which almost never works. The Supreme Court is very used to letting things develop enough to get a substantial record upon which to judge the various balances involved. A decision this summer was in a case I worked on for seven years; the brief I sent in Thursday evening was the third one on that topic in five years. As I've noted before, by the time a case like this gets to the Court level, it's never easy, and certainly never as easy as media pundits make out. There are always many, many sides to a question like this, and the Court doesn't want to do that kind of balancing without knowing what it and others will put on the scales. Too many things in motion right now to make a snap judgment (pun intended).
Even more important, this is not a 6-3 Court, despite what various media claim. This is, as commentators right and left point out (though with differing titles and explanations of motives). Leaving aside that half of all cases are decided unanimously, and most of the others are not decided by easily-identified voting blocs, there are three liberal Justices who vote as a bloc, three conservative Justices who often vote together, and then there are Chief Justice Roberts and Justices Kavanaugh and Barrett, who pretty much go their own way. And any referral to the Circuit Justice for the Sixth Circuit goes to ... Justice Kavanaugh. Who tested positive for Covid on Oct. 1 even though he was fully vaxxed. In the workplace. So, is unlikely to think that the newest surge is something to ignore or act precipitously on.
