Bonus 74: Shopping for Justices

A new emergency request from Peter Navarro highlights an old quirk in the Supreme Court's rules—one of several anachronisms left over from before the Court moved to a "continuous" term in 1980

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of the bonus content is behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

This week’s bonus issue was prompted by a new filing by Peter Navarro, currently serving his four-month sentence for contempt of Congress. After Chief Justice Roberts had denied Navarro’s last-ditch effort to be released on bail pending his appeal (with the first “in-chambers” opinion we’ve seen from a justice since 2014!), Navarro “renewed” his application by asking the Supreme Court’s Clerk to submit it to Justice Gorsuch. This move is expressly permitted by the Supreme Court’s rules, even though it has a 0.0% chance of succeeding. For decades now, any application resubmitted to a second justice has been referred to the full Court and summarily denied; we just saw one of those last week.

But Navarro’s especially visible invocation of this obscure and (currently) pointless provision provides a good opportunity to explain the very significant purpose the “second-justice” provision used to serve; the reason why it no longer does any work; and the broader problem of the Court still holding on to practices and behaviors that made sense, if at all, in the pre-1980 world in which the Court formally adjourned for several months each year. A Court that is always in session doesn’t need rules or practices designed for a Court that wasn’t.

For those who are not paid subscribers, the next free installment of the newsletter will drop on Monday morning. For those who are, please read on.