What the Supreme Court didn't decide

[onenote]

I've seen at least one story (RawStory of course) stating that the Court "ruled that a former president could not invoke executive privilege on White House records if the current president did not also assert that privilege."

In fact, the Court expressly did NOT decide the case on that ground. Here is what the Court said:

"Because the Court of Appeals concluded that President Trump’s claims would have failed even if he were the incumbent, his status as a former President necessarily made no difference to the court’s decision....Any discussion of the Court of Appeals concerning President Trump’s status as a former President must therefore be regarded as nonbinding dicta.

[WarGamer]

1. yeah... raw story, politicus and daily beast. Nothing more than catnip clickbait.

[Nevilledog]

2. That's Kavanaugh's statement about the denial. Majority did not write an opinion.

https://www.documentcloud.org/documents/21182369-order-21a272

[onenote]

3. No its not.

Its the statement of the Court describing its Order and the reasons therefor. Kavanaugh's statement begins on the second page following the statement that Thomas would have granted the application.

In fact, Kavanaugh refers to the Court's Order, stating "As this Court’s order today makes clear, those portions of the Court of Appeals’ opinion were dicta and should not be considered binding precedent going forward."

[Nevilledog]

4. You're right, but I was looking at the last paragraph in Kavanaugh's statement.

I read that first, interested to see what he'd spew.

[Bev54]

5. Yes, that will be left for another day for them to decide. They don't want to put themselves

out of business.

[onenote]

6. And the Court still has to decide whether or not to grant the petition for certiorari

What was decided today was Trump's application for a stay of the lower court decision pending a decision by the Supreme Court on Trump's concurrent petition for certiorari. Trump's response with respect to the stay proceeding and the petition for certiorari matter was due on January 13 and the Court's most recent conference was January 14. There is another conference scheduled for the 21st.

It seems a bit odd that the Court only addressed the stay request but not the cert petition. In theory, they could still grant the cert petition even though it wouldn't stop the Archives from turning over the documents. It only takes four votes to grant cert.