The Supreme Court on Monday morning issued more orders from the justices’ private conference last week. After adding 14 new cases to their docket for the term on Friday afternoon, the justices were not expected to grant review in additional cases on Monday – and they did not. Monday’s order list was nonetheless noteworthy because the justices turned down a group of requests to expedite the consideration of petitions for review in cases seeking to undo the results of the 2020 presidential election. The denial confirms that the justices will not consider the petitions until after the inauguration of President-elect Joe Biden, effectively rendering the disputes moot.
The eight petitions challenge the election procedures and results in the four battleground states of Arizona, Georgia, Pennsylvania and Wisconsin, all of which Biden won. Numerous lower courts rejected the challenges, prompting President Donald Trump’s campaign along with Republican allies of the president to file last-ditch appeals to the Supreme Court. Lawyers for the challengers had asked the justices to fast-track the court’s consideration of the petitions, generally requesting that responses opposing review be filed by late December or early January, to allow the court to weigh in before Congress counted the electoral votes on Jan. 6. But the justices – whose last regularly scheduled conference before Jan. 6 took place on Dec. 11 – declined to consider the requests to fast-track until their next regularly scheduled conference, on Jan. 8, and then denied them without explanation. The justices are now not likely to consider any of the petitions until mid- to late February at the earliest, well after Biden’s inauguration on Jan. 20, when it will be too late for the court to grant any of the relief related to the 2020 election that the challengers seek.
Two other election-related petitions out of Pennsylvania still stand a chance of getting taken up by the Supreme Court after the inauguration – though not in a posture that would affect the 2020 election. The petitions in Republican Party of Pennsylvania v. Boockvar and Scarnati v. Pennsylvania Democratic Party involve challenges to the Pennsylvania Supreme Court’s extension of an absentee-voting deadline last year. The challengers originally sought to undo the Pennsylvania results, but after the justices declined to intervene on an expedited basis, Republicans acknowledged in a brief on Dec. 15 that the case “cannot change the outcome” of the 2020 election. They argued nonetheless that the court should grant review in order to clarify the law for future elections.
The court considered the Boockvar and Scarnati petitions for the first time at the Jan. 8 conference. The court took no action on the petitions, and docket entries for the cases indicate they have been relisted for further consideration at this Friday’s conference.
The justices did place a different dispute, over the constitutionality of Nevada’s stay-at-home orders to deal with the COVID-19 crisis, on a fast track. The justices ordered the state to respond by Jan. 19 to a petition by Calvary Chapel Dayton Valley, a church that argues that the state’s more favorable treatment of secular venues like casinos, while restricting attendance at churches, violates the First Amendment. The Supreme Court turned down a request in July from the church for emergency relief, but the make-up of the court has changed since then, with the more conservative Justice Amy Coney Barrett replacing the late Justice Ruth Bader Ginsburg. The justices directed the church to respond by noon on Jan. 21, potentially allowing them to consider the case at their Jan. 22 conference – the last conference before their winter recess – and, if they grant review, to hear oral argument and decide the case this term.
The justices turned down Bruni v. City of Pittsburgh, a challenge to a Pittsburgh ordinance that creates a “buffer zone” around abortion clinics. Anti-abortion activists who want to be able to speak to patients entering the clinic went to court, arguing that the ordinance violates their First Amendment rights. The U.S. Court of Appeals for the 3rd Circuit concluded that the ordinance allows “sidewalk counseling,” and the challengers appealed to the Supreme Court, which on Monday announced that it would not weigh in.
Justice Clarence Thomas filed a statement regarding the court’s decision to stay out of the dispute. He wrote that “buffer zones” like Pittsburgh’s “often impose serious limits on free speech.” Moreover, he observed, the test that the Supreme Court used in upholding the constitutionality of a “buffer zone” law in a 2000 case conflicts with the court’s “current First Amendment doctrine.” Thomas agreed that the court was right to deny review in this case “because it involves unclear, preliminary questions about the proper interpretation of state law.” But he added that the justices should “take up this issue in an appropriate case to resolve the glaring tension in our precedents.”
The justices did not act on several other high-profile cases, including Dobbs v. Jackson Women’s Health Org., the challenge to a Mississippi law that generally bans abortions after 15 weeks of pregnancy, and United States v. Tsarnaev, the federal government’s petition to review the case of Boston Marathon bomber Dzhokhar Tsarnaev, whose death sentences the 1st Circuit vacated. The justices considered all of these cases for the first time at last week’s conference, and they have already been relisted for consideration again at Friday’s conference.
This post is also published on SCOTUSblog.