Lyle Denniston reported at SCOTUSBlog: “The Supreme Court, altering its usual agenda, will issue one or more opinions in argued cases on Monday of next week, as well as on the more normal days of Tuesday and Wednesday, according to the Court’s telephonic ‘hotline’ announcing its schedule. Ordinarily, when the Court is hearing argument on Mondays, it releases only orders in new cases, and withholds opinions until later in those weeks. The new plan immediately stirred speculation that the Court has found some specific urgency in a pending case that requires immediate action.” Monday is of course already a big day at the Court, with the Court hearing a challenge to President Obama’s immigration directive.
If Monday brings an opinion in an argued case, then I’m not sure what it would be. But is it possible that Monday brings an opinion in the emergency motion that’s been filed to stop Texas’s voter id law pending the en banc hearing in the 5th Circuit? It is a longshot, but not out of the question.
Let me spin this out a bit, knowing this is complete speculation. The Texas voter id law has been very controversial. The last time an emergency motion made it to the Court, Justice Ginsburg issued a forceful dissent at around 5 am on a Saturday morning. I speculated that part of the reason for the timing was to bring more attention to this issue, which has divided the Court.
It is quite possible that the emergency motion has divided the Court 4-4, or maybe it divided the Court 5-3 (Justice Breyer did not join Justice Ginsburg’s dissent last time around). The Court, as it did in Purcell v. Gonzalez, could treat the emergency motion for relief like a petition for cert, grant cert, and issue an opinion. Either a 4-4 split or a denial to Texas could prompt another Ginsburg dissent. The issue of voter suppression is in the news, and what better way for Justice Ginsburg to draw more attention to it than to announce her dissent orally on the day of the big Obama immigration case? The Court might see some urgency too, with so many election disputes coming to the Court, to clarify or affirm the Purcell principle, or spell out something about the scope of Section 2 of the Voting Rights Act in new vote denial cases. Maybe this will signal more that the absence of Justice Scalia really matters in these cases.
I know I see everything through election law-colored glasses. So there could be a million other pressing things coming out of the Court. But I thought it worth this speculation, and I’ll likely be proven wrong in 24 hours.
UPDATE: I’ve heard from enough knowledgeable people now that procedurally this would not come as a 10 am opinion. We still might see something on ID, but likely not this.
MONDAY morning update: And…it was not voter id.