Yeah it’s a real neck-and-neck race between “there’s no clear legal path to even get to scotus” and “alito says it’s overturned because fuck you that’s why”
My instinct is that they wait to see if he wins. If he wins it’s part of the coronation, if he loses they no longer have any use for him.
There is truly no plausible path to review in the Supreme Court before the election unless they want to literally, not figuratively, throw out 245 years of practice about SCOTUS review of state court decisions.
They were reviewing a decision of the Florida Supreme Court there, which was expedited because everyone agreed there was a ticking clock. There’s not even going to be a decision by the Appellate Division before the election unless something really weird happens.
I hope you’re right but the point is they don’t have to throw out anything, they can just say “it’s a special circumstance just this once” and no one can say different
What do you mean by “throw out”? The court is “final and so infallible” in every case and was also in Texas v. Pennsylvania. The question is whether they want to pretend to be a court, and I say they do.
You do not decide the merits through the shadow docket, by definition. If you can find me a merits decision reversing a state court final judgment through the shadow docket, I will take it. But I don’t see one.
Right but they directionally/procedurally shape or skew or avoid merits decisions through the shadow docket. Literally why the term exists as an item of controversy.
There are rules that they are happy to ignore (substantive rules) and rules that they observe because they don’t limit their ability to rule however they want in the end, but give an air of legitimacy. This is the second kind, which is why I predict they follow it.
There is truly no plausible path to review in the Supreme Court before the election unless they want to literally, not figuratively, throw out 245 years of practice about SCOTUS review of state court decisions.
Really there isn’t. 28 USC 1257 has a pretty defined meaning. They skirted that through the shadow docket with Yeshiva University Pride Alliance, but that’s still not reaching the merits prior to a final state decision.
I have spent the last near-decade watching people be perpetually shocked when another norm is blown up, another law is broken, another clause of the Constitution is barbered or ignored
"Reality is what you can get away with" - Robert Anton Wilson
The Supreme Court is totally unbound on the merits and the substance and has no reason to burn its credibility to leapfrog procedural delays, because they always have the last word if they wait long enough.
You realize there are people out there arguing that the Supreme Court is behaving legitimately precisely BECAUSE it observes the rules I am talking about? Most of those people are in the justices’ social circles. Don’t go full Pauline Kael here. (And I know that Kael thing didn’t happen.)
