The Supreme Court closed the balance of the October 2024 Term with both actions and opinions that bespeak a new vision of how it exercises power—one that is as dangerous as it will be unpredictable.
Thank you. I learn a lot from your posts on the Supreme Court. Unfortunately, your words leave me so discouraged. It seems we the people have no recourse other than to suck it up.
I commend the piece now up on JustSecurity by Harold Hongju Koh and colleagues on APA vacatur as an alternative to universal injunction (though I can’t offer an informed opinion on the validity of the argument presented).
I am an old, retired criminal defense lawyer. I am wondering whether there would be any prohibitive procedural or substantive legal barriers to law firms committed to Trump’s pro bono work, developing plausible causes of action, based on diversity jurisdiction, filing thousands or even tens of thousands of cases for individual plaintiffs in various district courts?
Perhaps coordinating with Universities with similar reputational incentives, in legal and public relations responses to attempts at retaliation.
Fortunately for our Nation's judges, the vigilance of law enforcement officers and investigators has stopped many threats of violence before they could be carried out. Indeed from the founding of the Republic in 1789 until 1979, only one federal judicial officer. Chief Justice John Slough of the New Mexico Territorial Supreme Court, was killed in office. In more recent decades, however, disgruntled litigants have perpetrated acts of violence against several judges and members of their families. I also thank Congress for providing additional funding to protect the physical security of judges and justices.
Some will find the rest of my comment to be mere nitpicking, but hear me out. I was pleased that Steve said a “stopped” clock and not a “broken” clock. A stopped clock is necessarily right 2x day. A broken clock might be, but might also never be right if it’s running fast/slow. “I could care less” means there’s room for less caring. It’s “I couldn’t care less”. “The proof is in the pudding.” That never made sense to me, but “the proof isn’t in the pudding, it’s in the eating since all puddings look sweet” makes a lot more sense!
There are so many more examples of where people have stopped being precise in their word choices or even thinking about what they say actually means. More and more I’m hearing “you know what I meant”. Maybe I did and maybe I didn’t. My dad had a saying: I understood what you meant, but I’m not obliged to by what you said.” Pompous for sure, but ultimately accurate. Lack of education seems to mean people think words in a thesaurus are interchangeable rather than similar but not necessarily the same. Nuance seems to be lost. I understand English is a living language and therefore needs to and will change over time, but that doesn’t mean we need to be sloppy in our thoughts and speech.
If you made it to the end of this post, thanks for letting me get this off my chest! I knew you were my peeps and would understand my frustration!
I believe the CASA ruling proves the 6 conservative Supreme Court justices are following the Project 2025 script. The "Federalist Society" Court and the Trump Administration are working together to dissemble the checks and balances of our Democratic society.
In Trump v. CASA, the Court dissed nearly 60 years of historical jurisprudence, constraining the lower courts from issuing nationwide injunctions. How is it the conservative majority never sought to constrain the use of nationwide injunctions when such injunctions were sought by Republicans??? How is it that the Trump Administration requested only a determination concerning the use of injunctions in the birthright matter and a 'tough minded" conservative Court obliged rather consider the merits of the constitutionality of a clearly unconstitutional act.
If it looks like a fish, smells like a fish and tastes like a fish and , then guess what, folks, it is a fish. And this one, at least to me, stinks.
I find it concerning when someone like you, who seems so knowledgeable and measured and who seems to be able to find a way to not need to leave anything left over to be read between the lines, uses a word like dangerous.
Yes, we all feel it and in our hearts and know it on that level, but reading it is hard.
Everyday, I somehow feel a bit more exposed and less protected by law. Law that should give us some comfort in its predictability and protection.
It is like a shield that defines our civilization is being removed.
Little of what we thought he knew and counted on now seems certain.
The law is like a string that binds us all like beads and it is being cut.
How long until we scatter across the floor feeling a need to fend for ourselves?
I was in law school from 1972-75. During this time period the Supreme Court heard and handed down cases like US v. Nixon and Roe v. Wade. The concepts taught then about the courts (and the SC particularly) was that they DID NOT insert personal views and preferences into case decisions. There was a formal structure and precedent/ stare decisis prevailed in order to have a stable legal and Constitutional order. The rare basis for overturning precedent had theoretical explanations, primarily that the majority (democratic) view on an issue had changed significantly, such as in the area of medical treatment and the privacy necessary to allow doctors and patients to make medical decisions without government interference. No one taught that you could open an opinion saying "the majority of us have always rejected the concepts in this 50-years old case on Constitutional principles and therefore we can now reject it...the State governments have an overriding interest in what you and your doctors are doing and so the state legislatures have to be free to use their police powers to curb your personal decisions." So this same SC will now do whatever it wants, whenever it wants, so that it will never have to feel like flying the flag upside down again. If prior to 2022 you had written Bar Exam answers that read like this SC's opinions on multiple issues you would have outright failed the Bar...I have no idea what they taught during these 50 years at Harvard and Yale law schools but it must have been that power and privilege Trump's all.
So here would be the result of the legally formalistic approach proposed here: lower courts would continue to go beyond the law to obstruct Trump’s efforts until he simply refused to comply and we would have a real crisis. By contrast so far the complaining has been loud but not screaming, and as this column indicates even by partisan. Making everyone unhappy probably means the Court is on the best path.
I agree with Kavanaugh. His way of doing the shadow docket (esp FN 3) makes sense to me. I don't think formalism really requires them to be bound to the old standards, which were entirely judge-made in another era anyway. I think they should publish something as a majority if they're changing the rules though.
I agree on Mahmoud v Taylor being a "sleeper" case (despite already being very high-profile). My other sleeper case is Seven County Infrastructure (the NEPA one) which I've posted on here about before.
Barrett’s brief irreparable harm analysis cites O’Connor from 1993 in a case that involved a lack of standing. Is that really apt to this case? It seems her argument is potentially circular in that the harm analysis relies in the conclusion that universal injunction is improper.
Under Motor Vehicle Mfrs. v. State Farm Ins., a federal agency changing directions "must examine the relevant data and articulate a satisfactory explanation for its action including a 'rational
connection between the facts found and the choice made.'" 463 U.S. 29, 43 (1983). The Supreme Court's explanation-free dispositions in "emergency" cases could never satisfy that "arbitrary and capricious" standard of review under the Administrative Procedure Act.
Could Congress impose an APA-type standard of review on the Supreme Court's shadow docket dispositions?
That last point is a really helpful articulation of the problem with “whatever we feel like” being the guide behind the decisions. Thank you for articulating that.
I see an ideological throughline from the presidential immunity decision to Kavanaugh’s birthright citizenship concurrence: SCOTUS reserves the right to make “final” decisions where it declines to offer any real guidance. Colloquially, it’s refereeing a game in which there are no rules. It’s profoundly out of step with the rule of law.
The fact that Kavanaugh is the one with a concurrence in the birthright citizenship case advancing the power of the justices is particularly galling. In a better world, that *** wouldn't be on the damn Court in the first place. It is telling that this power shift significantly came with the current personnel and during the first Trump Administration. Addressing the problem requires knowing it.
Thank you. I learn a lot from your posts on the Supreme Court. Unfortunately, your words leave me so discouraged. It seems we the people have no recourse other than to suck it up.
I commend the piece now up on JustSecurity by Harold Hongju Koh and colleagues on APA vacatur as an alternative to universal injunction (though I can’t offer an informed opinion on the validity of the argument presented).
I am an old, retired criminal defense lawyer. I am wondering whether there would be any prohibitive procedural or substantive legal barriers to law firms committed to Trump’s pro bono work, developing plausible causes of action, based on diversity jurisdiction, filing thousands or even tens of thousands of cases for individual plaintiffs in various district courts?
Perhaps coordinating with Universities with similar reputational incentives, in legal and public relations responses to attempts at retaliation.
I should have said this to exploit the absurdity of Trump v. Casa
Fortunately for our Nation's judges, the vigilance of law enforcement officers and investigators has stopped many threats of violence before they could be carried out. Indeed from the founding of the Republic in 1789 until 1979, only one federal judicial officer. Chief Justice John Slough of the New Mexico Territorial Supreme Court, was killed in office. In more recent decades, however, disgruntled litigants have perpetrated acts of violence against several judges and members of their families. I also thank Congress for providing additional funding to protect the physical security of judges and justices.
Always edifying to read these posts.
Some will find the rest of my comment to be mere nitpicking, but hear me out. I was pleased that Steve said a “stopped” clock and not a “broken” clock. A stopped clock is necessarily right 2x day. A broken clock might be, but might also never be right if it’s running fast/slow. “I could care less” means there’s room for less caring. It’s “I couldn’t care less”. “The proof is in the pudding.” That never made sense to me, but “the proof isn’t in the pudding, it’s in the eating since all puddings look sweet” makes a lot more sense!
There are so many more examples of where people have stopped being precise in their word choices or even thinking about what they say actually means. More and more I’m hearing “you know what I meant”. Maybe I did and maybe I didn’t. My dad had a saying: I understood what you meant, but I’m not obliged to by what you said.” Pompous for sure, but ultimately accurate. Lack of education seems to mean people think words in a thesaurus are interchangeable rather than similar but not necessarily the same. Nuance seems to be lost. I understand English is a living language and therefore needs to and will change over time, but that doesn’t mean we need to be sloppy in our thoughts and speech.
If you made it to the end of this post, thanks for letting me get this off my chest! I knew you were my peeps and would understand my frustration!
I agree with most it but I have to say that in this case the clock does seem more broken than stopped.
I was basing it on Steve’s comment that a stopped clock is occasionally right. I agree the clock, overall, seems to be broken!
I believe the CASA ruling proves the 6 conservative Supreme Court justices are following the Project 2025 script. The "Federalist Society" Court and the Trump Administration are working together to dissemble the checks and balances of our Democratic society.
In Trump v. CASA, the Court dissed nearly 60 years of historical jurisprudence, constraining the lower courts from issuing nationwide injunctions. How is it the conservative majority never sought to constrain the use of nationwide injunctions when such injunctions were sought by Republicans??? How is it that the Trump Administration requested only a determination concerning the use of injunctions in the birthright matter and a 'tough minded" conservative Court obliged rather consider the merits of the constitutionality of a clearly unconstitutional act.
If it looks like a fish, smells like a fish and tastes like a fish and , then guess what, folks, it is a fish. And this one, at least to me, stinks.
I find it concerning when someone like you, who seems so knowledgeable and measured and who seems to be able to find a way to not need to leave anything left over to be read between the lines, uses a word like dangerous.
Yes, we all feel it and in our hearts and know it on that level, but reading it is hard.
Everyday, I somehow feel a bit more exposed and less protected by law. Law that should give us some comfort in its predictability and protection.
It is like a shield that defines our civilization is being removed.
Little of what we thought he knew and counted on now seems certain.
The law is like a string that binds us all like beads and it is being cut.
How long until we scatter across the floor feeling a need to fend for ourselves?
I was in law school from 1972-75. During this time period the Supreme Court heard and handed down cases like US v. Nixon and Roe v. Wade. The concepts taught then about the courts (and the SC particularly) was that they DID NOT insert personal views and preferences into case decisions. There was a formal structure and precedent/ stare decisis prevailed in order to have a stable legal and Constitutional order. The rare basis for overturning precedent had theoretical explanations, primarily that the majority (democratic) view on an issue had changed significantly, such as in the area of medical treatment and the privacy necessary to allow doctors and patients to make medical decisions without government interference. No one taught that you could open an opinion saying "the majority of us have always rejected the concepts in this 50-years old case on Constitutional principles and therefore we can now reject it...the State governments have an overriding interest in what you and your doctors are doing and so the state legislatures have to be free to use their police powers to curb your personal decisions." So this same SC will now do whatever it wants, whenever it wants, so that it will never have to feel like flying the flag upside down again. If prior to 2022 you had written Bar Exam answers that read like this SC's opinions on multiple issues you would have outright failed the Bar...I have no idea what they taught during these 50 years at Harvard and Yale law schools but it must have been that power and privilege Trump's all.
So here would be the result of the legally formalistic approach proposed here: lower courts would continue to go beyond the law to obstruct Trump’s efforts until he simply refused to comply and we would have a real crisis. By contrast so far the complaining has been loud but not screaming, and as this column indicates even by partisan. Making everyone unhappy probably means the Court is on the best path.
I agree with Kavanaugh. His way of doing the shadow docket (esp FN 3) makes sense to me. I don't think formalism really requires them to be bound to the old standards, which were entirely judge-made in another era anyway. I think they should publish something as a majority if they're changing the rules though.
I agree on Mahmoud v Taylor being a "sleeper" case (despite already being very high-profile). My other sleeper case is Seven County Infrastructure (the NEPA one) which I've posted on here about before.
Barrett’s brief irreparable harm analysis cites O’Connor from 1993 in a case that involved a lack of standing. Is that really apt to this case? It seems her argument is potentially circular in that the harm analysis relies in the conclusion that universal injunction is improper.
Under Motor Vehicle Mfrs. v. State Farm Ins., a federal agency changing directions "must examine the relevant data and articulate a satisfactory explanation for its action including a 'rational
connection between the facts found and the choice made.'" 463 U.S. 29, 43 (1983). The Supreme Court's explanation-free dispositions in "emergency" cases could never satisfy that "arbitrary and capricious" standard of review under the Administrative Procedure Act.
Could Congress impose an APA-type standard of review on the Supreme Court's shadow docket dispositions?
I wonder what the constitutional and legal world would look like if only Sotomayor, Kagan, and Jackson comprised the whole Supreme Court.
A court full of Kagans would be utopia.
A court full of Sotomayors would look something like the activist Warren/Burger courts.
A court full of Jacksons would be getting ignored by Trump DoJ and throw us into a constitutional crisis.
And just for fun.
A court full of Robertses/Kavanaughs looks the same.
A court full of Barretts would ...pretty decent actually, but it'd exclusively grant civpro cases nobody cares about.
A court full of Gorsuches would be weird, Congress might actually have to do things again.
A court full of Alitos turn the US into theocracy where the only law is the Free Exercise clause. (Hey at least prisons would be empty.)
A court full of Thomases does not compute because he's never written an opinion intended to actually be serious workable law.
That last point is a really helpful articulation of the problem with “whatever we feel like” being the guide behind the decisions. Thank you for articulating that.
I see an ideological throughline from the presidential immunity decision to Kavanaugh’s birthright citizenship concurrence: SCOTUS reserves the right to make “final” decisions where it declines to offer any real guidance. Colloquially, it’s refereeing a game in which there are no rules. It’s profoundly out of step with the rule of law.
The fact that Kavanaugh is the one with a concurrence in the birthright citizenship case advancing the power of the justices is particularly galling. In a better world, that *** wouldn't be on the damn Court in the first place. It is telling that this power shift significantly came with the current personnel and during the first Trump Administration. Addressing the problem requires knowing it.