The Court is not scheduled to hear any arguments this week and is in recess until February 17. Nonetheless, this morning it issued orders from last week’s Conference. (Grants were announced last week, and we discussed them here.) The most notable news from this morning’s Orders List is that the Court declined Texas’s request to hear the Texas voter-ID case, Abbott v. Veasey, in which the lower courts found that the voter-ID law violated the Voting Rights Act. The case will now proceed to trial, and as Amy Howe at SCOTUSblog explains, Chief Justice Roberts issued a statement respecting the denial of certiorari — an unusual move — in which he emphasized that the case could come back to the Court post-trial to present the same or similar legal questions. Specifically, he explained that the petitioners were asking the Court to review the lower courts’ findings that Texas had “enacted [the law] with a discriminatory purpose and whether the law results in a denial or abridgment of the right to vote under §2 [of the Voting Rights Act.. Although there is no barrier to our review, the discriminatory purpose claim is in an interlocutory posture, having been remanded for further consideration. As for the §2 claim, the District Court has yet to enter a final remedial order. Petitioners may raise either or both issues again after entry of final judgment. The issues will be better suited for certiorari review at that time.” More information about the case is available at the SCOTUSblog post and the Campaign Legal Center website.
Despite the Court recess, Court-related news and commentary is likely to continue to be relatively heavy, as anticipation builds over Trump’s possible SCOTUS nominee. CNN reports that Trump said in a press conference January 11 that he would likely name his nominee within two weeks of taking the presidential office, so the announcement could be coming soon.
CBS reporter Jan Crawford revealed on Face the Nation on Christmas day that Trump had narrowed his list of possible nominees to five, whom she called “conservative legal rock stars:” Bill Pryor an Atlanta Federal Appeals Court judge; Thomas Hardiman, a judge on the Philadelphia based Appeals Court; Steve Colloton, an Iowa-based judge on the eighth circuit of the U.S. Court of Appeals; Diane Sykes, a judge on the Seventh Circuit. And Joan Larsen, from the Michigan Supreme Court. The Senate confirmation hearings will be a “battle over ideology,” not qualifications, because all of those on the shortlist are highly qualified, she said.
David Lat at Above the Law predicts Sykes will be the nominee. He argues Sykes and Pryor are the two real contenders because, among other reasons, “[t]hey are conservative in terms of methodology, emphasizing Justice Scalia’s themes of textualism, originalism, and judicial restraint. Not surprisingly, they are active in the Federalist Society, aka the legal profession’s vast right-wing conspiracy.” He goes on to say that Sykes has an advantage over Pryor in securing Trump’s nomination because she is an attractive woman, noting that she was nominated for “Superhottie” of the Federal Judiciary in 2004.
In a post-inauguration piece, ABC News profiles those purportedly under consideration (including Sykes and Pryor). In the meantime, Senate Minority Leader Chuck Schumer announced on CNN that the Democrats will “do our best to keep the seat open” if Trump appoints someone who is “out of the mainstream” and cannot attract “bipartisan support.” Majority Leader Mitch McConnell has threatened to invoke the nuclear option — to eliminate the filibuster for Supreme Court nominees — if the Democrats, who do not command a majority in the Senate attempt to filibuster Trump’s nomination. In any event, whomever Trump nominates will be supported by a large, well-funded network, according to the Washington Times. That newspaper reports that a conservative network of activists is launching a $10 million campaign to support the nominee.