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.
I agree with you about Boyle and NIH, but disagree about DVD. Judge Murphy upholding his second injunction after SCOTUS struck the first down was bad faith.
While yes, the SC's order in DVD was unexplained, judges are smart enough to take unexplained orders as guidance — I haven't been having trouble for one! And there was simply no colorable, good faith explanation to keep the second order up. As Kagan put it: "I do not see how a district court can compel compliance with an order that this Court has stayed".
Of course, DVD alone does not make a pattern, and *overall* Gorsuch's concurrence was hot nonsense. (Not the first time he's done this either btw, he complained about courts not reading the tea leaves in Bremerton and Ramos too. Perhaps we're just not as smart as him.) But he's right about "defiance" in DVD.
The question is not whether Sotomayor was right; it’s whether, given that the majority said literally nothing (when the government had asked it to); and that the only writing accompanying the ruling disclaimed that it applied to the later order, the district court was *reasonable* in thinking that the Court’s stay covered the order it didn’t mention. I see the argument for why Judge Murphy was *wrong* (Kagan’s later concurrence, about which I wrote a whole post); I don’t see the argument for why he was so obviously wrong as to constitute evidence of “defiance” of the Court.
Chris, your comment identifies the problem with the conduct of SCOTUS justices: "the SC's order in DVD was unexplained;" and "judges are [supposed to be] smart enough to take unexplained orders as guidance."
As Justice Gorsuch, himself, emphasized: "Mere deference to [other] decisions risks relegating courts to the status of potted plants, inconsistent with their duty to say what the [governing] law is in the cases that come before them." Turkiye Halk Bankasi A.S. v. United States, 598 U.S. 264 (2023) (Gorsuch, Alito, JJ., concurring, dissenting).
Justice Gorsuch and other SCOTUS justices are knowingly violating their own constitutional duty to say what the governing law actually is, and they're preventing lower courts from fulfilling their constitutional duty to say what the governing law actually is.
"Article III of the Constitution establishes an independent Judiciary" whose “duty" is "to say what the [governing] law is” in "particular cases and controversies." Bank Markazi v. Peterson, 578 U.S. 212 (2016).
"It is emphatically" the "duty of the judicial department to say what the [governing] law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule." Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
We shouldn't be surprised that they're violating the duties of court judges... because Thomas is a bribe-taker, Kavanaugh vowed to be biased on live TV, and the Constitution has a clause about all this:
"The judges, both of the supreme and inferior courts, shall hold their offices DURING good behaviour..."
There is really only one possible way to understand this very plainly written text. They're not actual judges. They're squatters.
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.)
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.
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.
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...."
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.
Professor Vladeck, the enlightenment you provide and your criticism of SCOTUS justices for failing to provide enlightenment about reasons for their rulings on the Shadow Docket highlight a self-evident truth about our access to information.
Now is a good time for the SCOTUS justices and all Americans to recall a warning and admonition by one of the first and foremost Americans. James Madison was rightly known as the Father of the Constitution and the Father of the Bill of Rights. He knew better than most what our Constitution means and requires:
"A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."
America is enduring the farce and the tragedy, and SCOTUS justices are abusing their positions to impose it on us. Our Constitution demands, and the preservation of our republic and our democracy depends on, us continuing to arm ourselves with the power which knowledge gives.
In The Virginia Report of 1800, Madison emphasized that we must consider exercises of power by our public servants “with a reverence for our constitution, in the true character in which it issued from the sovereign authority of the people.” "[A] frequent recurrence to fundamental principles [in our constitutions] is solemnly enjoined by most of the state constitutions, and particularly by our own [Constitution], as a necessary safeguard against the danger of degeneracy to which republics are liable . . . . The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present."
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.
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.
Perhaps Lisa Cook (Fed Governor) can bring this challenge when her case makes it to the USSC... she could file a motion to disqualify Thomas on grounds that he shouldn't be on the court. If unproven allegations are sufficient to overcome "good cause" language for a Fed. Gov., unproven allegations should be sufficient to overcome "good behavior" clause... Of course this won't work, but at the very least it would serve to remind everyone of Thomas's corruption and GOP hypocrisy.
Re Justice Barrett's baby-splitting here: Justice Breyer played a similar role in the paired Establishment Clause cases involving the Ten Commandments monument on the Texas Capitol grounds, Van Orden v. Perry, 545 U.S. 677 (2005)) and a Ten Commandments display in a public schoolroom, McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005). But Barrett went him one better by doing the same thing in a single case. I seem to recall a case or two where Justice O'Connor may have done something similar, but I can't remember the details.
“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.
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.
Justice Gorsuch was no doubt prompted to complain that the Dist. Ct. Judge Young defied binding vertical S.Ct. precedent when he had written (in denying the stay motion) that California was “not binding on this [Dist.] Court” and “of little assistance to the district courts” because it was “an emergency interlocutory order.” Gov. App. at 221a, 229a, 232a. And instead “agree[d] with the Supreme Court dissenters” and even cited the First Circuit decision that the Supreme Court had overruled in California. Id. at 221a, 235a. He did try to distinguish California, but should have stopped there.
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).
It seems to me the bulk of the bad behavior is at the Supreme Court.
I agree with you about Boyle and NIH, but disagree about DVD. Judge Murphy upholding his second injunction after SCOTUS struck the first down was bad faith.
While yes, the SC's order in DVD was unexplained, judges are smart enough to take unexplained orders as guidance — I haven't been having trouble for one! And there was simply no colorable, good faith explanation to keep the second order up. As Kagan put it: "I do not see how a district court can compel compliance with an order that this Court has stayed".
Of course, DVD alone does not make a pattern, and *overall* Gorsuch's concurrence was hot nonsense. (Not the first time he's done this either btw, he complained about courts not reading the tea leaves in Bremerton and Ramos too. Perhaps we're just not as smart as him.) But he's right about "defiance" in DVD.
And to this
> Justice Sotomayor’s dissent explicitly suggested that the later order hadn’t been before the Court
As Roberts said in SFFA, "a dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion"
The question is not whether Sotomayor was right; it’s whether, given that the majority said literally nothing (when the government had asked it to); and that the only writing accompanying the ruling disclaimed that it applied to the later order, the district court was *reasonable* in thinking that the Court’s stay covered the order it didn’t mention. I see the argument for why Judge Murphy was *wrong* (Kagan’s later concurrence, about which I wrote a whole post); I don’t see the argument for why he was so obviously wrong as to constitute evidence of “defiance” of the Court.
Chris, your comment identifies the problem with the conduct of SCOTUS justices: "the SC's order in DVD was unexplained;" and "judges are [supposed to be] smart enough to take unexplained orders as guidance."
As Justice Gorsuch, himself, emphasized: "Mere deference to [other] decisions risks relegating courts to the status of potted plants, inconsistent with their duty to say what the [governing] law is in the cases that come before them." Turkiye Halk Bankasi A.S. v. United States, 598 U.S. 264 (2023) (Gorsuch, Alito, JJ., concurring, dissenting).
Justice Gorsuch and other SCOTUS justices are knowingly violating their own constitutional duty to say what the governing law actually is, and they're preventing lower courts from fulfilling their constitutional duty to say what the governing law actually is.
"Article III of the Constitution establishes an independent Judiciary" whose “duty" is "to say what the [governing] law is” in "particular cases and controversies." Bank Markazi v. Peterson, 578 U.S. 212 (2016).
"It is emphatically" the "duty of the judicial department to say what the [governing] law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule." Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
We shouldn't be surprised that they're violating the duties of court judges... because Thomas is a bribe-taker, Kavanaugh vowed to be biased on live TV, and the Constitution has a clause about all this:
"The judges, both of the supreme and inferior courts, shall hold their offices DURING good behaviour..."
There is really only one possible way to understand this very plainly written text. They're not actual judges. They're squatters.
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.
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.
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.
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!
I think the DRI judge did in that courts birthright citizenship case post CASA.
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...."
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.
Professor Vladeck, the enlightenment you provide and your criticism of SCOTUS justices for failing to provide enlightenment about reasons for their rulings on the Shadow Docket highlight a self-evident truth about our access to information.
Now is a good time for the SCOTUS justices and all Americans to recall a warning and admonition by one of the first and foremost Americans. James Madison was rightly known as the Father of the Constitution and the Father of the Bill of Rights. He knew better than most what our Constitution means and requires:
"A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."
America is enduring the farce and the tragedy, and SCOTUS justices are abusing their positions to impose it on us. Our Constitution demands, and the preservation of our republic and our democracy depends on, us continuing to arm ourselves with the power which knowledge gives.
In The Virginia Report of 1800, Madison emphasized that we must consider exercises of power by our public servants “with a reverence for our constitution, in the true character in which it issued from the sovereign authority of the people.” "[A] frequent recurrence to fundamental principles [in our constitutions] is solemnly enjoined by most of the state constitutions, and particularly by our own [Constitution], as a necessary safeguard against the danger of degeneracy to which republics are liable . . . . The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present."
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.
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.
Perhaps Lisa Cook (Fed Governor) can bring this challenge when her case makes it to the USSC... she could file a motion to disqualify Thomas on grounds that he shouldn't be on the court. If unproven allegations are sufficient to overcome "good cause" language for a Fed. Gov., unproven allegations should be sufficient to overcome "good behavior" clause... Of course this won't work, but at the very least it would serve to remind everyone of Thomas's corruption and GOP hypocrisy.
Re Justice Barrett's baby-splitting here: Justice Breyer played a similar role in the paired Establishment Clause cases involving the Ten Commandments monument on the Texas Capitol grounds, Van Orden v. Perry, 545 U.S. 677 (2005)) and a Ten Commandments display in a public schoolroom, McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005). But Barrett went him one better by doing the same thing in a single case. I seem to recall a case or two where Justice O'Connor may have done something similar, but I can't remember the details.
“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.
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.
Justice Gorsuch was no doubt prompted to complain that the Dist. Ct. Judge Young defied binding vertical S.Ct. precedent when he had written (in denying the stay motion) that California was “not binding on this [Dist.] Court” and “of little assistance to the district courts” because it was “an emergency interlocutory order.” Gov. App. at 221a, 229a, 232a. And instead “agree[d] with the Supreme Court dissenters” and even cited the First Circuit decision that the Supreme Court had overruled in California. Id. at 221a, 235a. He did try to distinguish California, but should have stopped there.
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).
That apple didn’t fall too far from the mommy tree