Bonus 7: SCOTUS's Top 10 (Non-Merits) Stories of 2022
Recaps of the Court's Terms (or years) tend to focus on the Justices' substantive rulings. Here, I take a look at 10 big 2022 stories *besides* those decisions
Welcome to this week’s “One First” bonus content, a preview of which is available to all subscribers, with the full content available to paid subscribers. (Monday’s regular issue will always be free to all subscribers.)
It seems de rigueur to end the year with some kind of “Top 10” list (or I just watched too much David Letterman growing up). Either way, I thought I’d use this week’s bonus content to do a Top 10 SCOTUS list for 2022 with a bit of a twist. Any account of the Top 10 SCOTUS stories of 2022 would be dominated by some of the Court’s biggest rulings—Dobbs; Bruen; West Virginia v. EPA; the religion cases; the OSHA/CMS vaccine mandate cases; etc.
But what if we took the merits out of it, and looked at the top 10 non-merits SCOTUS stories of 2022? Not only do I think such a list tells a meanigfully different story about the Court, but it also reinforces one of my broader goals in this newsletter—to provide a holistic view of the Court as an institution, and not just a reactive view of the Court as the sum of its rulings.
With that in mind, here’s my unofficial Top 10 list of big 2022 SCOTUS stories other than the substance of its 58 decisions in cases argued during the October 2021 Term, reactions to which will likely sort many (if not most) into their usual camps:
10. To Mask or Not To Mask
The year began with a bang—in the midst of the Omicron surge, the Court heard oral argument on a pair of emergency applications relating to Biden administration vaccine mandates, the first such arguments (on emergency applications) since the early 1970s. All of the Justices showed up for the arguments wearing a mask except Justice Gorsuch, with Justice Sotomayor participating remotely. That set off … a whole thing (with Nina Totenberg reporting that the Chief Justice had asked everyone to mask up on the bench, and that Sotomayor chose to participate remotely after it became clear Gorsuch wouldn’t), culminating in one of the most awkward, non-responsive joint statements in the history of the Court. And that was January.
9. Financial Disclosure … Corrections
Not one, not two, but three of the nine Justices (Thomas, Sotomayor, and Jackson) had to update or otherwise correct prior financial disclosure reports during calendar year 2022—in each case, to include income that had not previously been reported. This should’ve been a bigger story.
Fortunately, Gabe Roth and his colleagues at Fix the Court have been on it. But the laxity surrounding these statements, including how often the Justices miss the filing deadlines, ought to be a bigger deal (and one of many subjects of potential congressional reforms).
8. The Shrinking Docket
Although the flurry of high-profile decisions in June might have given a different impression, the Court handed down only 58 signed decisions in argued cases during the October 2021 Term—the third-lowest total since the Civil War. The second-lowest was the October 2020 Term; the lowest was the October 2019 Term. Here’s a helpful graphic by Dr. Adam Feldman depicting the significant constriction of the merits docket in the last few years:
Reasonable minds will differ about why the Court is deciding so few cases these days, and whether that’s a good or a bad thing. At some point, though, it sure seems increasingly clear that it’s a thing.
7. Ginni Thomas and January 6
News reports that Virginia (“Ginni”) Thomas, the wife of Justice Clarence Thomas, had exchanged text messages with White House Chief of Staff Mark Meadows in the run up to January 6 (and, later, the messages themselves) ignited a firestorm about her involvement in efforts to overturn the 2020 presidential election and, in a related vein, Justice Thomas’s participation in cases relating to the January 6 investigation (including the Court’s rejection of an emergency application from President Trump trying to block the National Archives and Records Administration from turning over certain documents to the January 6 Committee, from which Thomas was the lone public dissenter).
Ginni Thomas ended up agreeing to sit for an interview with the January 6 Committee, during which she apparently reasserted her belief that the 2020 election was stolen from Trump, and also told the Committee that she and Justice Thomas have “an ironclad rule” that they never speak about matters pending before the Supreme Court.
If nothing else, the controversy reignited a long-running debate over whether the Justices should be subject to the Code of Conduct for United States Judges (they are not at present); and whether the federal disqualification statute, which does apply to the Justices, needs a better enforcement mechanism than self-policing by individual members of the Court.