The red states involved in the Title 42 litigation weren’t parties to the original proceedings. Worse, and even more importantly, they transparently have no case on the merits. Given their indifference to fighting the pandemic at home, they cannot plausibly argue that the CDC acted capriciously by determining that Title 42 is no longer defensible as a public health measure. A “normal” Supreme Court would not, therefore, have involved itself in this litigation.
The current Supreme Court, however, is anything but “normal.” It extended the stay, pending a final decision on the red states’ right to intervene in June. It did not agree to hear the case on the merits at that time; if the Court finds that the red states had standing, the merits will be considered by the Court of Appeals on a slower track. As a result, the final decision on the case may be over a year away.
In other words, five justices have decided to slow roll this case in order to keep the stay in place as long as possible even though they have to know that the asylum seekers will ultimately win on the merits. The Court is trampling on the rights of litigants purely for purposes of political expediency; even Biden, whose lawyers said all the right things in public, is probably quietly relieved.
Sounds like Korematsu for the 21st century, doesn’t it? If push comes to shove and your rights are at stake, you can’t rely on this Court to defend them if it is politically inconvenient.