Justice Sotomayor says the Court "normally does not grant extraordinary relief on such a painfully disproportionate balance of harms".
Given the tight timeline, the potential harms seem significant: it's unclear whether/how the counting operation could be paused and then restarted if the 9th circuit were to reinstate the lower-court stay after deliberation.
Justice Sotomayor's closing line.
This is I think the third solo dissent Justice Sotomayor has issued since Justice Ginsburg's death.
The two used to be a dissenting pair.
One possibly decisive q in the application is how far along the count is. Challengers said new numbers from the govt that they're above 99% are suspect; interesting that Justice Sotomayor does not question that figure but still finds it inadequate given undercount of minorities.
For those wondering about Justices Kagan and Breyer and why they did not join Sotomayor's dissent: since this is a "shadow-docket" order, we know only that at least 5 justices vote to grant the stay. We don't know for sure how K & B voted.
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Barrett just told @SenBlumenthal that Loving v. Virginia (striking down mixed-race marriage bans) was based directly on Brown v. Board of Ed and was therefore correctly decided—but she can't opine on Griswold or Obergefell.
Her characterization of Loving is not quite right. 1/4
Brown v. Board was based *only* the Equal Protection Clause: the idea that separate schools are inherently unequal. The Court explicitly declined to consider whether segregation is also unconstitutional under substantive due process. 2/4
Loving, on the other hand, was based on *both* the Equal Protection Clause and the Due Process Clause, with *more* analysis devoted to the latter. It is a substantive due-process case, much like Griswold (right to contraception) and Obergefell (marriage equality). 3/4
NEW at SCOTUS: Trump administration returns to the Supreme Court with an emergency request to keep the president's financial records out of the hands of a NY grand jury.
Correction: this is Trump in his personal capacity, the administration.
BREAKING: Trump administration files emergency application to halt census count at the Supreme Court
Federal government wanted to stop count by end of September but was blocked by a district court and the 9th circuit declined to lift the stay. Now Trump administration is asking the justices to intervene.
BREAKING: SCOTUS reinstates witness requirement for South Carolina mail-in ballots, blocking lower court order that had waived requirement due to COVID-19.
No noted dissents. Justice Kavanaugh is the only justice to explain his reasoning in this concurrence
Thomas, Alito and Gorsuch would have reinstated the witness req. for all ballots. But the majority waived that requirement for ballots that have already gone into the mail and are received by this Wednesday.
Gist of the decision, which is 7-2 (with Alito and Thomas in dissent): lower courts did not take an adequate look at the special concerns involved when Congress subpoenas information about a president.