The Political Immodesty of the Roberts Court
By 
Mark Jospeh Stern observes that one of the numerous problems with the Supreme Court’s punting on the census case today is that the Court has recently reached out to decide two cases that were actually moot:
Friday’s ruling also entrenches a new rule that emerged after Barrett replaced Justice Ruth Bader Ginsburg: Plaintiffs only have standing when they are challenging a policy that the conservatives do not like. In November, by a 5–4 vote, the ultraconservatives blocked a COVID-19 restriction on New York City churches that was no longer in effect. As Roberts explained in his dissent, the restrictions were not in force when the court issued its decision. Yet the court blocked them anyway, reasoning that the governor might enforce them again in the future.
It is difficult to square that decision with Friday’s census punt. Trump has stated his policy in stark terms and directed the government to execute it as soon as possible. There is a serious, looming threat that his administration will carry it out in the near future. No one actually knows whether Biden or Congress can reverse the policy after it has been implemented. Yet the conservative justices still considered the case premature. This inconsistent approach gives the impression that at least five conservative justices are manipulating the rules to roll back blue states’ COVID orders while giving Trump leeway to test out illegal policies. Friday’s decision is not the end of this litigation, and the administration may ultimately fail to rig the apportionment of House seats. It is framed as a modest, narrow, technical decision. But the court has revealed its priorities, and they have nothing to do with restraint.
Manipulating standing rules to produce favorable substantive outcomes has long been one of the starkest way in which the Roberts Court has revealed its bullshit fake-minimalism. But this a particularly egregious case, and the refusal of anyone in the majority to even take responsibility for these opinions — which are both massively unpersuasive on their own merits and completely irreconcilable when considered collectively — makes it even worse.