Thursday's ruling in the NetChoice case appears to suggest that one of the key justices is either being inconsistent or completely hypocritical in how he is voting on emergency applications.
Retired Chicago appellate lawyer here. In my circuit (the 7th), a Rule 28(j) letter must be limited to submission of the new decision, along with a brief non-argumentative description of the point to which it relates. By brief, I mean typically no more than a sentence. If a lawyer filed a 28(j) letter like the SG's here, the court of appeals would squash that lawyer like a bug.
The decisions of the SC seem to bear less and less relationship to proper jurisprudence - and the letter purportedly from the Solicitor General beggars belief! Thank you for your time and trouble in setting out all these problems in detail, it's really wonderful to have such thorough explanations.
Steve, is it possible that the explanation for the SCT’s rulings on this administration’s emergency petitions is that a majority of the justices believe that the most important “equity” is to provide broad leeway for the president’s discretion? In other words, they are weighing the president’s discretion not only as part of the merits but also the most important part of weighing the equities? That would (I think) explain Kavanaugh’s apparent inconsistency. Of course, it’s all just speculation until the SCT decides to favor us all with an explanation. I’m not trying to defend their approach; just trying to understand it.
That may be. Indeed, I think that's a lot of what Jack Goldsmith is arguing in his forthcoming paper: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5378193. The problem is that the Biden administration received no comparable "equity" considerations, including in cases in which the Court ultimately ruled for it on the merits. It's really hard to see the argument for why even such an unexplained "equitable" deference to the executive branch can be reconciled with the Court's behavior from 2021-25.
My problems in looking at this current majority are usually grounded as much in the history of our Constitution as they are in law (although there are many problems here too). In "balancing the equities" this majority always seems to give deference to the Trump administration and never to a party trying to assert interests related to the Bill of Rights (i.e., Amendments 1-10, as supported by the 14th). It has seemed to me historically that favoring government over citizens everywhere except in gun rights or Evangelical privilege is backward, but maybe that is just my simplistic mind.
perhaps written by AI? and if they wanted to save space they could have reduced the repetition. And it wouldn't be the foreign countries to which any tariffs that were held illegal would have to be repaid!
Justice Kavanaugh seems unbothered by intellectual inconsistency, especially when tinged with political ideology.
Recently I attended the judicial conference for the United States Court of Appeals for the Eighth Circuit. Our circuit justice is Kavanaugh. His presentation was responding to a bunch of softball questions from a recently confirmed Trump District Court judge. In response to one of the questions, he took credit for increasing the number of women law clerks at the Supreme Court. He said that when law professors recommended male students to him, he would call them up and ask, “Who else do you have“? He said that resulted in an increase of women law clerks. The Circuit has video of this event.
Afterward, I waited in line with admirers seeking selfies with him. When it was my turn, I shook his hand and told him that I wanted to congratulate him for his DEI affirmative action to get more women law clerks. He raised both hands, palms out and moving them laterally and said “No! Equal opportunity! Equal opportunity!”
Doesn’t it feel like we’re just attempting to apply logic, law, and historical standards to people committed to using any means that achieves their pre-determined outcome?
Your trivia did include something new to keep me mildly amused at nights--how was a case filed in 1922 still pending in 1962? Wikipedia doesn't even hint at this tortured history, which parties attempted to reopen as recently as 2009.
Thanks for providing the clearest explanation of equities to date. I have no legal training but have an avid interest in jurisprudence, following you and several other lawyers on Substack. You do a superb service in allowing us to dive into the weeds without being overwhelmed. Kudos!
"But Kavanaugh wrote that he is likely to agree with the district court and NetChoice on the merits." Not really. He can be understood only to be pointing out the current state of the law without any commitment to not changing it.
There’s something we could read into Kavanaugh‘s references to “this Court’s precedents” and “as it currently stands”? This sounds like it could be he is saying the Court’s current case law says X (unconstitutional) but that might not stay true after it takes this case and decides it on the merits. Something about those references and his em-dash “definition” of likelihood of success with respect to current precedent jumped out. If that’s the case, but he thinks they will change course maybe that plays into his assessment of the equities in a strange way.
The state of Iowa has taken to arguing in court that it will be irreparably harmed if it is not allowed to enforce a law. This is a passage from the state's December 2024 brief in the U.S. District Court for the Southern District of Iowa, resisting a motion to enjoin a school book ban:
___________
Finally, an injunction is not in the public interest. “[A]ny time a State is enjoined by a court
from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers); see also Rounds, 530 F.3d at 732–33 (stressing the “more rigorous standard for demonstrating a likelihood of success on the merits” when plaintiffs seek to “thwart a state’s presumptively reasonable democratic processes”).
___________
I think I saw a similar passage in the state of Iowa's brief resisting a motion to enjoin an immigration law modeled on a Texas statute (making "illegal re-entry" a state crime, even though the federal government has the authority to regulate immigration).
Professor Vladeck, please consider the important opportunities and implications of SCOTUS ordering a response to Kim Davis’s petition seeking reversal of Obergefell. Don't SCOTUS’s orders (including the subsequent order extending the response deadline until Oct. 8) present important opportunities for filing amicus briefs?
You reasonably could be shocked if the Court granted certiorari here, and you reasonably could doubt there are five justices right now willing to overrule Obergefell. But haven’t you already been shocked by SCOTUS justices’ conduct in this very area of law (regarding the Ninth Amendment)? Weren’t you shocked that six SCOTUS justices signed onto an opinion in which they lied about the Ninth Amendment and knowingly violated it to pretend to justify overruling precedent that was far more faithful to our Constitution than Dobbs?
The judgment of the majority in Roe v. Wade was faithful to the plain text and structure of our Constitution, as emphasized by the Preamble and the Ninth and Tenth Amendments: "We the People" are sovereign, and "by the Constitution" we "delegated to the United States" limited
"powers;" we "prohibited by it to the States" certain powers: we "reserved to the States" certain powers and we "reserved" to "the people" the remaining powers. Our rights were "retained by the people," and our "Constitution" NEVER can "be construed to deny or disparage" ANY such rights because of any mere "enumeration in the Constitution" of "certain rights."
Doesn’t SCOTUS’s order requiring a response to Davis’s petition present an opportunity to put before SCOTUS the crucial fact that Dobbs was founded on a lie about the Ninth Amendment and a knowing violation of the Ninth Amendment? The majority opinion (twice) misrepresented that the Ninth Amendment was a "reservation of rights to the people." The majority abused that lie about the meaning of the Ninth Amendment to justify the following contention and conclusion (which blatantly violated the Ninth Amendment): "The Constitution makes no express reference to a right to [do something specific], and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text."
This is super simple and super straightforward. No judge (or lawyer) worthy of the title could read the Ninth Amendment and fail to see that it stated a clear command about how our "Constitution" absolutely "shall not be construed." Our "Constitution" NEVER can "be construed to deny or disparage" ANY rights "retained by the people" because of any mere "enumeration in the Constitution" of "certain rights."
The Dobbs majority blatantly violated the Ninth Amendment by focusing on the (irrelevant) fact that "[t]he Constitution makes no express reference to a right to [do something specific]" and then using the absence of an "express reference to a right to [do something specific]" to justify shifting the burden of proof to people asserting our rights.
I respectfully submit that this is not the time for people to take comfort in their perception of the mere relative safety of the particular exercises of rights that they cherish while standing idly by as six SCOTUS justices (and many other purported public servants) rip to pieces the broad constitutional safeguards that protect us all.
James Madison put it very well in 1785 in his Memorial and Remonstrance Against Religious Assessments. Madison's principles and logic apply equally to the attacks on our rights then and now. He was speaking generally about purported public servants attacking and undermining the rights and freedoms of the people. The attacks at issue then were subsequently secured by the First Amendment's express allusions to religion, but they were equally secured by the principles expressed in the Ninth Amendment.
Madison reminded all Americans of the great danger in forgetting eternal truths about both discrimination and establishment (support) for discrimination. In part, Madison was speaking about the danger of precedent (or legislation) that incrementally erodes our rights and liberties. Clearly, "the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects" and "the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever."
As a result, "it is proper to take alarm at the first experiment on our liberties." In fact, "this prudent jealousy" is "the first duty of Citizens, and one of the noblest characteristics of the [American] Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We [should] revere this lesson too much soon to forget it."
Hey Steve. Big fan of your work. I wrote about the Shadow Docket through the lens of a couple great philosophers. In hindsight I should have referenced and credited your work. Mea culpa, next time for sure. If you are interested, here it is. But certainly no hard feelings if you are too busy.
I'm a non-lawyer and I would like to learn more about the apparent tension between "the equities" and "the merits" as it applies to SCOTUS rulings in a very general way. If anyone reading this could suggest a resource?
Retired Chicago appellate lawyer here. In my circuit (the 7th), a Rule 28(j) letter must be limited to submission of the new decision, along with a brief non-argumentative description of the point to which it relates. By brief, I mean typically no more than a sentence. If a lawyer filed a 28(j) letter like the SG's here, the court of appeals would squash that lawyer like a bug.
Posner probably would’ve sanctioned whoever filed it.
Possibly. Or Easterbrook. Historically, it hasn't been a real forgiving group.
The decisions of the SC seem to bear less and less relationship to proper jurisprudence - and the letter purportedly from the Solicitor General beggars belief! Thank you for your time and trouble in setting out all these problems in detail, it's really wonderful to have such thorough explanations.
Steve, is it possible that the explanation for the SCT’s rulings on this administration’s emergency petitions is that a majority of the justices believe that the most important “equity” is to provide broad leeway for the president’s discretion? In other words, they are weighing the president’s discretion not only as part of the merits but also the most important part of weighing the equities? That would (I think) explain Kavanaugh’s apparent inconsistency. Of course, it’s all just speculation until the SCT decides to favor us all with an explanation. I’m not trying to defend their approach; just trying to understand it.
Hi Beth!
That may be. Indeed, I think that's a lot of what Jack Goldsmith is arguing in his forthcoming paper: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5378193. The problem is that the Biden administration received no comparable "equity" considerations, including in cases in which the Court ultimately ruled for it on the merits. It's really hard to see the argument for why even such an unexplained "equitable" deference to the executive branch can be reconciled with the Court's behavior from 2021-25.
My problems in looking at this current majority are usually grounded as much in the history of our Constitution as they are in law (although there are many problems here too). In "balancing the equities" this majority always seems to give deference to the Trump administration and never to a party trying to assert interests related to the Bill of Rights (i.e., Amendments 1-10, as supported by the 14th). It has seemed to me historically that favoring government over citizens everywhere except in gun rights or Evangelical privilege is backward, but maybe that is just my simplistic mind.
That plain-paper letter purportedly from Sauer is a real piece of work.
And by "work", I mean "horseshit".
perhaps written by AI? and if they wanted to save space they could have reduced the repetition. And it wouldn't be the foreign countries to which any tariffs that were held illegal would have to be repaid!
I'd like to believe that AI wouldn't be so stupid as to get tariff logic that backward. But reality says take nothing for granted.
In this case Sauer (or whoever really wrote this) was more likely aided by AIE (Always Incrementing Excrement)
Justice Kavanaugh seems unbothered by intellectual inconsistency, especially when tinged with political ideology.
Recently I attended the judicial conference for the United States Court of Appeals for the Eighth Circuit. Our circuit justice is Kavanaugh. His presentation was responding to a bunch of softball questions from a recently confirmed Trump District Court judge. In response to one of the questions, he took credit for increasing the number of women law clerks at the Supreme Court. He said that when law professors recommended male students to him, he would call them up and ask, “Who else do you have“? He said that resulted in an increase of women law clerks. The Circuit has video of this event.
Afterward, I waited in line with admirers seeking selfies with him. When it was my turn, I shook his hand and told him that I wanted to congratulate him for his DEI affirmative action to get more women law clerks. He raised both hands, palms out and moving them laterally and said “No! Equal opportunity! Equal opportunity!”
Twisting out of inconsistency.
Doesn’t it feel like we’re just attempting to apply logic, law, and historical standards to people committed to using any means that achieves their pre-determined outcome?
Your trivia did include something new to keep me mildly amused at nights--how was a case filed in 1922 still pending in 1962? Wikipedia doesn't even hint at this tortured history, which parties attempted to reopen as recently as 2009.
Thanks for providing the clearest explanation of equities to date. I have no legal training but have an avid interest in jurisprudence, following you and several other lawyers on Substack. You do a superb service in allowing us to dive into the weeds without being overwhelmed. Kudos!
"But Kavanaugh wrote that he is likely to agree with the district court and NetChoice on the merits." Not really. He can be understood only to be pointing out the current state of the law without any commitment to not changing it.
There’s something we could read into Kavanaugh‘s references to “this Court’s precedents” and “as it currently stands”? This sounds like it could be he is saying the Court’s current case law says X (unconstitutional) but that might not stay true after it takes this case and decides it on the merits. Something about those references and his em-dash “definition” of likelihood of success with respect to current precedent jumped out. If that’s the case, but he thinks they will change course maybe that plays into his assessment of the equities in a strange way.
The state of Iowa has taken to arguing in court that it will be irreparably harmed if it is not allowed to enforce a law. This is a passage from the state's December 2024 brief in the U.S. District Court for the Southern District of Iowa, resisting a motion to enjoin a school book ban:
___________
Finally, an injunction is not in the public interest. “[A]ny time a State is enjoined by a court
from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers); see also Rounds, 530 F.3d at 732–33 (stressing the “more rigorous standard for demonstrating a likelihood of success on the merits” when plaintiffs seek to “thwart a state’s presumptively reasonable democratic processes”).
___________
I think I saw a similar passage in the state of Iowa's brief resisting a motion to enjoin an immigration law modeled on a Texas statute (making "illegal re-entry" a state crime, even though the federal government has the authority to regulate immigration).
Professor Vladeck, please consider the important opportunities and implications of SCOTUS ordering a response to Kim Davis’s petition seeking reversal of Obergefell. Don't SCOTUS’s orders (including the subsequent order extending the response deadline until Oct. 8) present important opportunities for filing amicus briefs?
You reasonably could be shocked if the Court granted certiorari here, and you reasonably could doubt there are five justices right now willing to overrule Obergefell. But haven’t you already been shocked by SCOTUS justices’ conduct in this very area of law (regarding the Ninth Amendment)? Weren’t you shocked that six SCOTUS justices signed onto an opinion in which they lied about the Ninth Amendment and knowingly violated it to pretend to justify overruling precedent that was far more faithful to our Constitution than Dobbs?
The judgment of the majority in Roe v. Wade was faithful to the plain text and structure of our Constitution, as emphasized by the Preamble and the Ninth and Tenth Amendments: "We the People" are sovereign, and "by the Constitution" we "delegated to the United States" limited
"powers;" we "prohibited by it to the States" certain powers: we "reserved to the States" certain powers and we "reserved" to "the people" the remaining powers. Our rights were "retained by the people," and our "Constitution" NEVER can "be construed to deny or disparage" ANY such rights because of any mere "enumeration in the Constitution" of "certain rights."
Doesn’t SCOTUS’s order requiring a response to Davis’s petition present an opportunity to put before SCOTUS the crucial fact that Dobbs was founded on a lie about the Ninth Amendment and a knowing violation of the Ninth Amendment? The majority opinion (twice) misrepresented that the Ninth Amendment was a "reservation of rights to the people." The majority abused that lie about the meaning of the Ninth Amendment to justify the following contention and conclusion (which blatantly violated the Ninth Amendment): "The Constitution makes no express reference to a right to [do something specific], and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text."
In fact, the Ninth Amendment does not state a reservation of rights. It clearly states a rule of construction that expressly prohibits judges from doing what six SCOTUS justices did, above. For non-lawyers, a rule of construction is a rule about how to interpret and apply the law. See https://definitions.uslegal.com/r/rule-of-construction/#:~:text=Rule%20of%20Construction%20is%20a%20rule%20used%20for,mere%20customs%20not%20having%20the%20force%20of%20law.
This is super simple and super straightforward. No judge (or lawyer) worthy of the title could read the Ninth Amendment and fail to see that it stated a clear command about how our "Constitution" absolutely "shall not be construed." Our "Constitution" NEVER can "be construed to deny or disparage" ANY rights "retained by the people" because of any mere "enumeration in the Constitution" of "certain rights."
The Dobbs majority blatantly violated the Ninth Amendment by focusing on the (irrelevant) fact that "[t]he Constitution makes no express reference to a right to [do something specific]" and then using the absence of an "express reference to a right to [do something specific]" to justify shifting the burden of proof to people asserting our rights.
I respectfully submit that this is not the time for people to take comfort in their perception of the mere relative safety of the particular exercises of rights that they cherish while standing idly by as six SCOTUS justices (and many other purported public servants) rip to pieces the broad constitutional safeguards that protect us all.
James Madison put it very well in 1785 in his Memorial and Remonstrance Against Religious Assessments. Madison's principles and logic apply equally to the attacks on our rights then and now. He was speaking generally about purported public servants attacking and undermining the rights and freedoms of the people. The attacks at issue then were subsequently secured by the First Amendment's express allusions to religion, but they were equally secured by the principles expressed in the Ninth Amendment.
Madison reminded all Americans of the great danger in forgetting eternal truths about both discrimination and establishment (support) for discrimination. In part, Madison was speaking about the danger of precedent (or legislation) that incrementally erodes our rights and liberties. Clearly, "the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects" and "the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever."
As a result, "it is proper to take alarm at the first experiment on our liberties." In fact, "this prudent jealousy" is "the first duty of Citizens, and one of the noblest characteristics of the [American] Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We [should] revere this lesson too much soon to forget it."
Where can I find records of Petitioner and Respondent Briefs for cases argued in 1996? I'm looking for the briefs from US v. Virginia.
Hey Steve. Big fan of your work. I wrote about the Shadow Docket through the lens of a couple great philosophers. In hindsight I should have referenced and credited your work. Mea culpa, next time for sure. If you are interested, here it is. But certainly no hard feelings if you are too busy.
https://open.substack.com/pub/philosophersblade/p/the-shadow-docket-midnight-rule-by?r=62hbyt&utm_medium=ios
I'm a non-lawyer and I would like to learn more about the apparent tension between "the equities" and "the merits" as it applies to SCOTUS rulings in a very general way. If anyone reading this could suggest a resource?
Bad Vibes
I’m better understanding, Bad Vibes.