I find it interesting that they (except for Thomas!) ignored this case. It was a great opportunity to remand it back and tell the lower court to try again. The SC Justices would not have to make the eventual ruling, let the lower courts do the work for them. The question is why do they let this go on this way? Why not force the lower courts to do the work for them. It could be done nice and slow, incrementally, and keep the SCOUS on the side lines.
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Agreed. A short Per Curiam telling CA9 that their opinion ain't intermediate scrutiny would have allowed them to duck the underlying issue.
Then again, they may have known CA9 would send it straight back with a few words changed here or there.