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  • Writer's pictureElizabeth Slattery

A Final Recap for 2023

While many in Washington, D.C. are busy with holiday soirées, promises to circle back in the new year, and generally in an "OOO" state of mind, the Supreme Court justices have been hard at work this holiday season.

Wednesday the Court announced it will hear arguments in Ohio v. Environmental Protection Agency concerning the agency's "Good Neighbor" plan. EPA finalized a rule in March 2023 that would require nearly two dozen states to reduce smog-forming emissions that affect downwind states' ability to meet mandated air quality standards. Several industry groups and businesses, as well as Indiana, Ohio, and West Virginia filed petitions for review of the plan. The U.S. Court of Appeals for the D.C. Circuit denied requests to stay the Good Neighbor plan.

man in red sweater with headset
Like Pavlov's dog, I hear "Good Neighbor" and think "State Farm is there."

As one of the stay applications argues, this challenge involves "a stubborn refusal by EPA to admit that the legal foundation for a massive, multi-state, regulatory program . . . is irreparably flawed[.] . . EPA’s willful decision to move forward has simultaneously abrogated the rights of States to regulate air pollution within their borders and improperly forced industries regulated by the [Good Neighbor] Plan into the immediate expenditure of hundreds of millions of dollars pending the lower court’s review, all while jeopardizing the reliability of the electric grid." The Supreme Court will hear four consolidated applications for stay in its February 2024 sitting.

Last week, the Court granted review in seven cases. That brings the total to 52 cases that the Court has agreed to hear so far this term. There are typically between 60–70 cases argued and decided each term, so expect to see more grants following their next conference in January. (Fingers crossed for a grant of PLF's petition in Coalition for TJ v. Fairfax County School Board !) Highlights from last week's orders list include the Biden Administration's appeal of a U.S. Court of Appeals for the Fifth Circuit ruling invalidating the FDA's decision to allow the abortion pill mifepristone to be dispensed by mail rather than in person; and Fischer v. United States, which considers whether individuals who are alleged to have assaulted Capitol police during the riot on January 6, 2021 may be charged with violating a federal law that prohibits obstructing, influencing, or impeding congressional proceedings.

The Court also received a petition for cert before judgment (effectively a request to leapfrog the appeals court) from Special Counsel Jack Smith asking the justices to decide whether a former president (you know which one!) is absolutely immune from federal prosecution for crimes committed while he was in office or constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin. In his response, President Donald Trump maintained that there's no need to deviate from the normal appellate practice. Further, he pointed out, since the district court denied his motion to dismiss the indictments (for conspiracy to defraud the United States, obstructing certification of the election results, etc.), based on presidential immunity, the prevailing party (Special Counsel Smith) lacks standing to appeal.

And if that's not enough, there's yet another Trump-related case barreling toward the Supreme Court. Check out Anastasia's commentary on the Colorado Supreme Court's holding that Trump is ineligible for office under Section 3 of the 14th Amendment and thus disqualified from the state's ballot.

Since the justices have been so busy with work rather than revelry this holiday season, perhaps they should consider livening up their attire, à la the Canadian Supreme Court.

The Supreme Court also gathered this week to remember Justice Sandra Day O'Connor. She lie in repose in the Court's Great Hall on Monday, and there was a memorial service at the Washington National Cathedral Tuesday. My favorite tidbit comes from Mark Walsh's coverage of Monday:

Every sitting member of the court was present for the somber ceremony, as was retired Justice Anthony M. Kennedy. Jane Roberts, Virginia Thomas, and Ashley Kavanaugh were present among the spouses of current justices, while Mary Kennedy, Maureen Scalia (the widow of the late Justice Antonin Scalia), and Cathleen Douglas Stone (the widow of the late Justice William O. Douglas) were also here.

It's heartening to see members of the Court (past and present) and their spouses honor the memory of Justice O'Connor. But I had to re-read this particular passage mentioning the widow of Justice William O. Douglas . . . a Roosevelt appointee who served from 1939–1975. A quick visit to Wikipedia and Google confirmed that Wild Bill's fourth (and final) wife was in her 20s when they wed in 1966. But I digress.

There's a moving tradition where a deceased justice's former law clerks line the steps of the Supreme Court as the casket is brought into the building.

If you missed it, check out our interview with Allyson Ho, who clerked for Justice O'Connor. And one last thing, if you still haven't completed your holiday shopping (lookin' at you, Anastasia!), peruse our gift guide for the SCOTUS aficionado in your life. Happy SCOTUS to all, and to all a good night!


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