Just like the earlier rulings that Justice Gorsuch claims lower courts are defying, his concurrence in the NIH grant cutoffs case would be a lot more convincing if it showed more of its work.
Justice Jackson doesn't fit on this Court, but I'm so thankful she's on it. She's so lucid, principled, and persuasive, and you can tell how maddening she finds everything to be. History will look on her kindly, and rightfully so.
Justice Gorsuch is not a dumb guy. But given how specious and frankly untechnical (one might even argue, unlawyerly)his comments sound, it's hard not to wonder if this is not an outright power play.
While I'm sure Prof. Vladeck is far more informed than I am on the subject, I've noticed that Gorsuch's writing caliber can be lacking on occasion. I still remember one of RBG's final dissents before she passed, one where Gorsuch wrote the majority opinion: it eviscerated any remaining guardrails on the use of mandatory arbitration clauses even in employment contracts.
His reasoning was both weird & weirdly explained, and – again – specious & unlawyerly. RBG's dissent OTOH was, well, classic RBG, and IIRC even longer than the main opinion! Her logic was sound: even a decade ago it was becoming clear that the Court's conservative wing was ascendant in some areas, including this one, and abusing the Federal Arbitration Act (passed a century ago this year) far beyond Congress's original intent.
Thomas & Alito are the main ones pulling this power-play BS, but I'd have to concur Gorsuch is doing so in this instance. While this isn't a new thing, the stakes are clearly far higher nowadays.
This issue was front and center of the last years of my career in government. The SCOTUS rationale is utter garbage. (I assume you’re talking about Epic Systems.)
The word "Calvinball" was mentioned in oral argument more than once, including by Justice Barrett, as a search on the SCOTUS website will tell you. To toss that in.
The eight justices' dissenting comment made me think of Bazemore v. Friday, which had a per curiam opinion along with two separate concurrences. One was by "JUSTICE BRENNAN, joined by all other Members of the Court, concurring in part."
Okay. Totally serious comment. The concern about attacks on the courts is valid, but at some point, a strong attack on the Supreme Court is valid. People are particularly liable to be angry at Gorsuch (or Barrett) because of how they got on the Supreme Court in the first place.
I think a tipping point has been reached. SCOTUS jumped the shark. Prof. Vladeck wants to save it, but the justices don't want to be saved. The Court has to be seriously changed.
It's time to enforce the "Good Behaviour" clause. Thomas has been proven beyond the shadow of a doubt to have taken bribes, and has even confessed to a felony.
"The judges, both of the supreme and inferior courts, shall hold their offices DURING good behaviour..."
The Constitution doesn't contain surplusage. If they'd meant "for life", they would have said that. If they'd meant "until impeached", they would have said that. They meant DURING good behaviour. There is no way that bribe-taking could possibly be considered good behaviour by any legal standard ever, so Thomas isn't a judge. He's just been allowed to squat since the bribes were discovered... for some reason.
Every purported ruling involving the bribe-taker Thomas is *inherently void* and it's time for the other courts to start recognizing this. If a fake judge like Thomas issues fake rulings, that doesn't make them into court rulings.
Gorsuch and Kavanaugh do understand. Gorsuch has consistently been intellectually dishonest (and in some cases straight up dishonest) throughout his tenure on the court. For those who recall his mother’s stint at EPA Administrator under Reagan, it seems the fruit doesn’t fall far from the tree.
Let us not be afraid to armchair psychoanalize Gorsuch: he has had a huge chip on his shoulder, and an ax to grind, ever since his mother was forced from office...if not before.
Implied, but not really addressed in today's Vladeck commentary, the reason the lower courts keep coming to different results than ussc is that the lower courts are following established law (ie, precedent).
What about the principle that a Supreme Court order granting or denying a preliminary relief in one case does not establish binding precedent in any other case. Indeed, as Justice Scalia wrote, preliminary relief “is not even law of the case, much less res judicata in other litigation.” District courts are compelled to decide motions for preliminary relief by weighing well-established factors: likelihood of success, irreparable harm, balance of hardships, and public interest. It is not up to the federal district courts to consider how the Supreme Court weighed those factors in other “shadow docket” cases involving distinctive facts, other litigants, and different arguments. The federal district courts are not “defying” Supreme Court orders. While possibly persuasive, those orders are neither precedent nor binding. Rather, the courts are doing their jobs by applying the law to the facts and litigants before them.
“Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them.”
To this layperson, it seems an almost certain takeaway of this rebuke is that two Supremes have handed our Administration and the right-wing media more sound bites for their chastisements of our nation's so-called activist, now disobedient judges -- when in actuality the vast majority of our lower court judges are mightily attempting to hold the line.
"This court" meaning the bribe-taker Thomas, the swore-to-be-biased-on-live TV Kavanaugh, and similar criminals who are explicitly banned from office by the "good behaviour" clause?
The oath to the Constitution actually REQUIRES other court judges to reject the fake orders of fake judges pretending, falsely, to be on the supreme court.
In the current lawfare climate, I worry that Justice Jackson's outspokenness is going to bring the wrath of the corrupt DJT DOJ down on her, the way we saw happen to John Bolton last week. And should it happen, I further worry that the right-wing of the Court will cheer it on rather than seeing it as an attack on their independence (such as it is).
I'm re-reading a timely and insightful book by Leonard Levy, "Origins of the Bill of Rights." I think it's more than merely coincidental that Levy's book seems to be a bizarre playbook for somebody advising Trump. Levy wrote about many of the things that people did to abuse power before our Constitution--they are the reasons our Constitution says what it does. Somebody seems to be using this history to advise Trump to do things that are clearly unconstitutional. In his chapter on the Fourth Amendment (prohibiting unreasonable searches and seizures) Levy quoted William Cuddihy saying, "Reasonable search and seizure in colonial America closely approximated whatever the searcher thought was reasonable."
Several SCOTUS decisions discuss the reason that the Fourth Amendment expressly protects "papers" from "unreasonable searches and seizures." It was because public officials searched homes and offices to retaliate against people who criticized people in power (so-called "seditious libel"). The following are some examples:
Those decisions highlight that one of the most famous patriots in the 1760's was a Boston lawyer named James Otis, Jr. Otis became famous for his argument in court against "writs of assistance" which were used for outrageously unreasonable searches and seizures.
Coincidentally, one of Trump's personal attorneys (regarding his First Amendment rights) right up until Trump was re-elected was John Sauer. Sauer's law firm was named "The James Otis Law Group." Now, Sauer is one of the top attorneys in the DOJ. He is the U.S. Solicitor General for the Trump administration.
I posted this almost a month ago on an article by Judge J Michael Luttig, echoing Steve Vladeck's comments today...Judge Luttig was referring specifically to the position of CJ Roberts in the Court's abdication of its corrective rôle vis-à-vis tRump running roughshod over the rule of law::
Let us remember that Scotus is in fact aiding and abetting the tRump/DOJ attack upon district courts by continually offering "emergency" stays to orders carefully and studiously crafted by lower-court judges via the infamous "shadow docket", stays which are issued WITHOUT COMMENT or without the briefest attention to the MERITS of a particular suit against the government. The Scotus majority simply show contempt and disdain toward the judicial system by dismissing cavalierly the work of the federal district
courts, and grossly dishonor the judges who are putting in the time and effort to halt the spiraling attacks upon the foundations of our legal system.
Look to John Roberts? The Chief Justice who has made it his career to sanctify criminality at the highest level of our government? Him? Sorry to say, Judge Luttig, that train has left the station, taking our democracy and rule of law with it.
When will the lower courts begin to express frustration, indeed criticism, of the Supreme Court for its lack of guidance and abject failure to provide transparency behind its decisions in these emergency applications? Come on lower courts! Speak your mind!
The lower courts should, rather, start a factual hearing on the question of whether the *purported* supreme court orders are actually coming from real judges, or whether they are coming from disqualified, bribe-taking criminals who are explicitly not judges according to the US Constitution
US Constituition says.... "The judges, both of the supreme and inferior courts, shall hold their offices DURING good behaviour...."
It’s time that we faced facts. This court majority is deeply corrupt. And they have made the court itself one of the biggest dangers the country faces. Stephen is one of if not the most brilliant scholars of rhe court but he makes a fatal mistake in this line of his reasoning. For such did not make a mistake, he is,deliberately attempting to,destroy the rule of law.
Messrs Gorsuch and Kavanaugh. It's well past time to stop pretending that they're judges. "The judges, both of the supreme and inferior court, shall hold their offices during good behaviour....".... it means what it says.
I am forever thankful that I had a ConLaw professor who told me I was too provocative for a career in law. Consequently, I know just enough to play the fool. That said, even this fool can see that Gorsuch is spouting nonsense. If there's no opinion to document the reasoning, why would any judge assume a precedent had been established? Without a document explaining the rationale AND the law behind it, a judge would be forced to guess where the imaginary line is drawn. In too many of the "emergency docket" cases, the decision doesn't even make sense to most of us.
You wrote: "One of the more curious features of the Supreme Court’s ruling in the NIH grant cutoffs case is that eight different justices dissented from at least part of it" [SV].This fact alone justifies your criticism of the Court for reprimanding lower courts' reluctance to adhere to its decisions.
Even the short opinion in the NIH case was complicated. Thank you as always for your very helpful analysis!
That the Supreme Court controls the outcome in the case before it is obvious. That its rulings control anything else is not. Nothing in the Constitution or any statute says so explicitly. It’s simply tradition which the Court itself has little regard for. So why should life appointed lower court judges? Gorsuch should explain his authority and we all will be the judge as to whether he makes sense.
Justice Jackson doesn't fit on this Court, but I'm so thankful she's on it. She's so lucid, principled, and persuasive, and you can tell how maddening she finds everything to be. History will look on her kindly, and rightfully so.
Justice Gorsuch is not a dumb guy. But given how specious and frankly untechnical (one might even argue, unlawyerly)his comments sound, it's hard not to wonder if this is not an outright power play.
While I'm sure Prof. Vladeck is far more informed than I am on the subject, I've noticed that Gorsuch's writing caliber can be lacking on occasion. I still remember one of RBG's final dissents before she passed, one where Gorsuch wrote the majority opinion: it eviscerated any remaining guardrails on the use of mandatory arbitration clauses even in employment contracts.
His reasoning was both weird & weirdly explained, and – again – specious & unlawyerly. RBG's dissent OTOH was, well, classic RBG, and IIRC even longer than the main opinion! Her logic was sound: even a decade ago it was becoming clear that the Court's conservative wing was ascendant in some areas, including this one, and abusing the Federal Arbitration Act (passed a century ago this year) far beyond Congress's original intent.
Thomas & Alito are the main ones pulling this power-play BS, but I'd have to concur Gorsuch is doing so in this instance. While this isn't a new thing, the stakes are clearly far higher nowadays.
This issue was front and center of the last years of my career in government. The SCOTUS rationale is utter garbage. (I assume you’re talking about Epic Systems.)
PS Congress actually overturned part of it, in cases concerning sexual harassment.
Justice Gorsuch writes like he's using his position on SCOTUS to try to pitch the book he recently published.
It seems to me the bulk of the bad behavior is at the Supreme Court.
The word "Calvinball" was mentioned in oral argument more than once, including by Justice Barrett, as a search on the SCOTUS website will tell you. To toss that in.
The eight justices' dissenting comment made me think of Bazemore v. Friday, which had a per curiam opinion along with two separate concurrences. One was by "JUSTICE BRENNAN, joined by all other Members of the Court, concurring in part."
Okay. Totally serious comment. The concern about attacks on the courts is valid, but at some point, a strong attack on the Supreme Court is valid. People are particularly liable to be angry at Gorsuch (or Barrett) because of how they got on the Supreme Court in the first place.
I think a tipping point has been reached. SCOTUS jumped the shark. Prof. Vladeck wants to save it, but the justices don't want to be saved. The Court has to be seriously changed.
It's time to enforce the "Good Behaviour" clause. Thomas has been proven beyond the shadow of a doubt to have taken bribes, and has even confessed to a felony.
"The judges, both of the supreme and inferior courts, shall hold their offices DURING good behaviour..."
The Constitution doesn't contain surplusage. If they'd meant "for life", they would have said that. If they'd meant "until impeached", they would have said that. They meant DURING good behaviour. There is no way that bribe-taking could possibly be considered good behaviour by any legal standard ever, so Thomas isn't a judge. He's just been allowed to squat since the bribes were discovered... for some reason.
Every purported ruling involving the bribe-taker Thomas is *inherently void* and it's time for the other courts to start recognizing this. If a fake judge like Thomas issues fake rulings, that doesn't make them into court rulings.
Gorsuch and Kavanaugh do understand. Gorsuch has consistently been intellectually dishonest (and in some cases straight up dishonest) throughout his tenure on the court. For those who recall his mother’s stint at EPA Administrator under Reagan, it seems the fruit doesn’t fall far from the tree.
Let us not be afraid to armchair psychoanalize Gorsuch: he has had a huge chip on his shoulder, and an ax to grind, ever since his mother was forced from office...if not before.
Implied, but not really addressed in today's Vladeck commentary, the reason the lower courts keep coming to different results than ussc is that the lower courts are following established law (ie, precedent).
What about the principle that a Supreme Court order granting or denying a preliminary relief in one case does not establish binding precedent in any other case. Indeed, as Justice Scalia wrote, preliminary relief “is not even law of the case, much less res judicata in other litigation.” District courts are compelled to decide motions for preliminary relief by weighing well-established factors: likelihood of success, irreparable harm, balance of hardships, and public interest. It is not up to the federal district courts to consider how the Supreme Court weighed those factors in other “shadow docket” cases involving distinctive facts, other litigants, and different arguments. The federal district courts are not “defying” Supreme Court orders. While possibly persuasive, those orders are neither precedent nor binding. Rather, the courts are doing their jobs by applying the law to the facts and litigants before them.
“Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them.”
To this layperson, it seems an almost certain takeaway of this rebuke is that two Supremes have handed our Administration and the right-wing media more sound bites for their chastisements of our nation's so-called activist, now disobedient judges -- when in actuality the vast majority of our lower court judges are mightily attempting to hold the line.
"This court" meaning the bribe-taker Thomas, the swore-to-be-biased-on-live TV Kavanaugh, and similar criminals who are explicitly banned from office by the "good behaviour" clause?
The oath to the Constitution actually REQUIRES other court judges to reject the fake orders of fake judges pretending, falsely, to be on the supreme court.
In the current lawfare climate, I worry that Justice Jackson's outspokenness is going to bring the wrath of the corrupt DJT DOJ down on her, the way we saw happen to John Bolton last week. And should it happen, I further worry that the right-wing of the Court will cheer it on rather than seeing it as an attack on their independence (such as it is).
I'm re-reading a timely and insightful book by Leonard Levy, "Origins of the Bill of Rights." I think it's more than merely coincidental that Levy's book seems to be a bizarre playbook for somebody advising Trump. Levy wrote about many of the things that people did to abuse power before our Constitution--they are the reasons our Constitution says what it does. Somebody seems to be using this history to advise Trump to do things that are clearly unconstitutional. In his chapter on the Fourth Amendment (prohibiting unreasonable searches and seizures) Levy quoted William Cuddihy saying, "Reasonable search and seizure in colonial America closely approximated whatever the searcher thought was reasonable."
Several SCOTUS decisions discuss the reason that the Fourth Amendment expressly protects "papers" from "unreasonable searches and seizures." It was because public officials searched homes and offices to retaliate against people who criticized people in power (so-called "seditious libel"). The following are some examples:
Marcus v. Search Warrant, 367 U.S. 717 (1961) https://supreme.justia.com/cases/federal/us/367/717/
Stanford v. Texas, 379 U.S. 476 (1965) https://supreme.justia.com/cases/federal/us/379/476/
Boyd v. United States, 116 U.S. 616 (1886) https://supreme.justia.com/cases/federal/us/116/616/
Those decisions highlight that one of the most famous patriots in the 1760's was a Boston lawyer named James Otis, Jr. Otis became famous for his argument in court against "writs of assistance" which were used for outrageously unreasonable searches and seizures.
Coincidentally, one of Trump's personal attorneys (regarding his First Amendment rights) right up until Trump was re-elected was John Sauer. Sauer's law firm was named "The James Otis Law Group." Now, Sauer is one of the top attorneys in the DOJ. He is the U.S. Solicitor General for the Trump administration.
I posted this almost a month ago on an article by Judge J Michael Luttig, echoing Steve Vladeck's comments today...Judge Luttig was referring specifically to the position of CJ Roberts in the Court's abdication of its corrective rôle vis-à-vis tRump running roughshod over the rule of law::
Let us remember that Scotus is in fact aiding and abetting the tRump/DOJ attack upon district courts by continually offering "emergency" stays to orders carefully and studiously crafted by lower-court judges via the infamous "shadow docket", stays which are issued WITHOUT COMMENT or without the briefest attention to the MERITS of a particular suit against the government. The Scotus majority simply show contempt and disdain toward the judicial system by dismissing cavalierly the work of the federal district
courts, and grossly dishonor the judges who are putting in the time and effort to halt the spiraling attacks upon the foundations of our legal system.
Look to John Roberts? The Chief Justice who has made it his career to sanctify criminality at the highest level of our government? Him? Sorry to say, Judge Luttig, that train has left the station, taking our democracy and rule of law with it.
When will the lower courts begin to express frustration, indeed criticism, of the Supreme Court for its lack of guidance and abject failure to provide transparency behind its decisions in these emergency applications? Come on lower courts! Speak your mind!
The lower courts should, rather, start a factual hearing on the question of whether the *purported* supreme court orders are actually coming from real judges, or whether they are coming from disqualified, bribe-taking criminals who are explicitly not judges according to the US Constitution
US Constituition says.... "The judges, both of the supreme and inferior courts, shall hold their offices DURING good behaviour...."
I think the DRI judge did in that courts birthright citizenship case post CASA.
It’s time that we faced facts. This court majority is deeply corrupt. And they have made the court itself one of the biggest dangers the country faces. Stephen is one of if not the most brilliant scholars of rhe court but he makes a fatal mistake in this line of his reasoning. For such did not make a mistake, he is,deliberately attempting to,destroy the rule of law.
Thank you for your writings. I always learn a lot from you.
"Justices Gorsuch and Kavanaugh either don’t understand that, or they do. I’m not sure which one is more disconcerting."
I know you cannot say it, but I can. THEY DO.
At this point, theirs is just sophistry. There is NO bona fide. They are not on the people or the law's side.
Messrs Gorsuch and Kavanaugh. It's well past time to stop pretending that they're judges. "The judges, both of the supreme and inferior court, shall hold their offices during good behaviour....".... it means what it says.
I am forever thankful that I had a ConLaw professor who told me I was too provocative for a career in law. Consequently, I know just enough to play the fool. That said, even this fool can see that Gorsuch is spouting nonsense. If there's no opinion to document the reasoning, why would any judge assume a precedent had been established? Without a document explaining the rationale AND the law behind it, a judge would be forced to guess where the imaginary line is drawn. In too many of the "emergency docket" cases, the decision doesn't even make sense to most of us.
You wrote: "One of the more curious features of the Supreme Court’s ruling in the NIH grant cutoffs case is that eight different justices dissented from at least part of it" [SV].This fact alone justifies your criticism of the Court for reprimanding lower courts' reluctance to adhere to its decisions.
Even the short opinion in the NIH case was complicated. Thank you as always for your very helpful analysis!
That the Supreme Court controls the outcome in the case before it is obvious. That its rulings control anything else is not. Nothing in the Constitution or any statute says so explicitly. It’s simply tradition which the Court itself has little regard for. So why should life appointed lower court judges? Gorsuch should explain his authority and we all will be the judge as to whether he makes sense.