"To avoid that needless prospect, and as the government explained in its opposition to NYIC's motion to remand (at 16-17), this court should address the equal-protection claim in its opinion, and make clear that the administrative record, the extra-record evidence, and the Hofeller files do not, individually or together, provide any basis for setting aside the Secretary's decision on the ground that it violates principles of equal protection."
The standard for this kind of review is to assume all of the facts are as favorable as possible to the party opposing the request. Effectively they are asking for a ruling that even if all the allegations about the Hofeller stuff is true, the decision would still be the same. The Supreme Court can't look at the evidence in the other case and decide what's credible and what's not so they have to assume the worst possible facts for the party seeking this kind of determination.
That's an "and" though, as in "plz address equal protection and also say that evidence wouldn't matter in regards to it regardless of what it might say". They're still requesting SCOTUS to address equal protection, are they not?
Certainly the equal protection argument is larger than just those files. Yes, the government won in district court on that which is why it isn't an issue here, but it seems to me like DOJ is straight-up asking SCOTUS to affirm that district court ruling on equal protection when, AFAIK, it was never argued before SCOTUS. Am I mistaken?
If it's purely a legal question as opposed to a factual one SCOTUS can consider it whether or not it was argued by the parties. That's how Justice Roberts saved Obamacare, with a legal theory not argued by the parties.
But the Supreme Court is not going to announce that all of a sudden racial discrimination is okay. They might possibly hold that what a partisan operative's goals are irrelevant. ---
September 1, 2003; November 4, 2007; September 2, 2013 Congratulations to DP Oblivion in the Guru Contest!