Reply To: Supreme Court asks for input of Solicitor General; what does this mean?


For my part, I don’t see any scenario where Snyder isn’t granted cert. The case is too important. I can see how it could be a bad thing; if SCOTUS overturns Snyder, it would essentially open up whatever punitive measures the states want to impose without fear of reprisal. A crushing blow.

On the other hand, the 6th circuit’s ruling was very largely based on empirical evidence and the fact that Michigan’s SOR scheme does not achieve its stated goals in light of the evidence. That will (or should be, HAS TO BE) the crux of the Does’ argument. The state claims that this evidence is “disputed social science.” They conveniently omit that more studies support the Does’ claims than the state’s, so which is more disputed? They also claim that ” setting public-safety policy is a task entrusted to the legislature, which has the institutional competence to study relevant statistics, to draw conclusions from those statistics, and to enact policy accordingly.” I would bet that a million or so American citizens would vehemently disagree.

As for potential outcomes, I am generally optimistic. I can see Kennedy looking to right a wrong that he has no doubt been advised of at least once in the last 14-15 years. I think we can probably count on Sotomayor, Kagan, and Breyer (who hinted at unconstitutionality of SOR during Packingham). Ginsburg is a toss-up, I think, but she is less conservative than the others. I wouldn’t count on Alito, Roberts, or Thomas; they tend to be ultra-conservative. That leaves Gorsuch who, as others have noted, dissented in Nichols. He could be our 5th. Of course, if Ginsberg rules in our favor, Gorsuch’s vote won’t matter, but the more the merrier we will all be.

IMO, Michigan is showing its hand a bit when one of its points (in its petition) is that if the 6th circuits ruling stands, the state will lose federal money. How can a judicial entity that is sworn to uphold the US Constitution concede that money is more important than liberty and basic human rights? Regardless of the outcome, I hope SCOTUS chastises the state for putting the lives of citizens and their families at ground level on the totem pole of importance.