Two appellate rulings from opposite ends of the country on Friday illustrate how much the Court's new term is going to be dominated by Trump cases—even ones in which the Court has already intervened.
With all due respect, have you thought about how the Trump administration, Fox News, New York Post, and the like would respond to the results of your suggestions?
You: "Deploying National Guard troops to subway and bus terminals to perform bag checks and provide a visible presence."
Trump and Fox News: "Thank you Dems! Keep the military on the streets!"
You: "Using National Guard logistics and intelligence analysts to support a multi-jurisdictional task force targeting organized retail crime rings, not shoplifters."
Fox News: "Dems still protecting shoplifters!"
You: "People are right to be concerned about crime and disorder. That's why we are taking unprecedented, targeted action."
Fox News: "Dems fold to Trump, deploying National Guard to fight crime."
As for the legal implications, I'll leave that to the experts.
A question for Steve if he cares to answer it. Will the onslaught of emergency applications affect the number of cases in which the Court grants cert., reducing it? I ask because a friend has a cert. petition pending that's a good one (big circuit conflict on a jurisdictional question) and ordinarily would stand a better than average chance of being granted. Are those chances reduced, given the Court's preoccupation with emergencies?
It's hard to imagine that the uptick in high-profile emergency applications hasn't had at least a *marginal* impact on the merits docket. Indeed, I suspect it's more than a coincidence that the merits docket has shrunk into the 50s over the same time horizon as the emergency docket has become so busy. That said, I suspect the bigger issue for merits cases for the upcoming term is going to be the number of Trump *merits* cases, both the ones the Court is aware of and the ones it will almost certainly be holding at least some space for... That's not to say your friend's petition won't be granted. But the odds are probably a smidge longer than they would've been say, 7-8 years ago.
What a ridiculous country. Our Supreme Court, the formerly most venerable institution of all, is now considering who can use which bathroom in a podunk high school. We are truly through the looking glass here.
What's the difference if the comment reflects the issue? If I understood the original comment correctly, Linda doesn't consider challenges by women and girls regarding gender ideology to be even worthy of discussion (boys & men using women's facilities, "gender-affirming care" for minors, boys and men competing in female sports teams, etc.). My point is that that dismissive attitude is one of the things that helped get Trump reelected (a disastrous outcome in my opinion).
I'm learning to appreciate that one sign of a deteriorating society is the degree to which every day people need to learn the intricacies of its legal system just to survive. How many immigrants and business owners now need to understand civil procedure in order to better understand their rights or how to plan their strategies? Tiring and unfair.
Very interesting analysis, but it raises a question. Prof. Vladek posits that the Supreme Court will reach the merits of the TPS and tariff cases in the OT2025 term because the Court will receive (and presumably grant) cert. petitions in the next few months. I wonder whether the Justices could instead decide not to act on the petitions -- neither denying nor granting them. If so, the Court would not hear the cases on the merits. And, the grants of emergency relief would continue until the Court rules on the petitions. How likely is it that could happen?
It's certainly *possible.* We saw the Court play similar games, for instance, with the petition in the Dobbs case. But I think it's less likely here both because (1) the justices know they'll have to deal with these cases eventually; and (2) there will be several of them.
Regardless how you feel about the outcomes of judicial decisions we are all now bound up in these outcomes. The Trump administration is like a large apartment house that is on fire and the larger population is like people watching live news coverage. Even though there are people , property and pets still in the building the Congress is a gathering crowd on the sidewalk watching the fire, many with their phones out creating video footage. The Courts are the responding emergency fire, EMT and police personnel...and we are just beginning to hear the sirens off in the distance. Will they arrive in time while the Congress watches the catastrophe unfolding figuring someone...anyone... may decide to run toward the danger...?
And the worst part is that these are some of the least problematic cases SCOTUS was hoping to dodge. Those will be decided in the term before midterms. In trying to limit nationwide injunctions, the Federalist/Royalist faction raised the stakes on cases that it and Appellate Courts could have sat upon until after 2026 elections.
How unusual is it for a circuit panel majority to revise its decision when facing the prospect of en banc review?
It seems they should have known the original decision was vulnerable to en banc reversal, in which case I would have expected a bit more care in the original majority opinion.
I feel the 'avoiding excessive confrontation' (a.k.a. 'appeasement') theory is the more persuasive explanation for the Court dragging its feet. But, in my view, the Court is putting off not just its reckoning with Trump, but with a heightened scrutiny from the public who are eager to see the Court finally show its work so we can determine whether or not their arguments/decisions are persuasive. The Court is to blame for how it invited the Trump administration's (ab)uses of the Emergency/Shadow docket, but I've seen evidence the public is growing tired of the Court's constantly balancing the equities so predictably in the government's favor.
FIGHT BACK! If YOU Live in a Blue State, follow this link and Contact Your Governor!
https://open.substack.com/pub/jodygorran/p/if-you-live-in-a-blue-state-contact?r=68rn&utm_medium=ios
With all due respect, have you thought about how the Trump administration, Fox News, New York Post, and the like would respond to the results of your suggestions?
You: "Deploying National Guard troops to subway and bus terminals to perform bag checks and provide a visible presence."
Trump and Fox News: "Thank you Dems! Keep the military on the streets!"
You: "Using National Guard logistics and intelligence analysts to support a multi-jurisdictional task force targeting organized retail crime rings, not shoplifters."
Fox News: "Dems still protecting shoplifters!"
You: "People are right to be concerned about crime and disorder. That's why we are taking unprecedented, targeted action."
Fox News: "Dems fold to Trump, deploying National Guard to fight crime."
As for the legal implications, I'll leave that to the experts.
Protests today at our courthouse. Let’s hope the Rule of Law will ultimately prevail. Your work is invaluable, Steve. Thank you.
Super helpful analysis, thank you!
Is the delay to allow an appeal to SCOTUS until early October in the tariff decision a normal one?
A question for Steve if he cares to answer it. Will the onslaught of emergency applications affect the number of cases in which the Court grants cert., reducing it? I ask because a friend has a cert. petition pending that's a good one (big circuit conflict on a jurisdictional question) and ordinarily would stand a better than average chance of being granted. Are those chances reduced, given the Court's preoccupation with emergencies?
It's hard to imagine that the uptick in high-profile emergency applications hasn't had at least a *marginal* impact on the merits docket. Indeed, I suspect it's more than a coincidence that the merits docket has shrunk into the 50s over the same time horizon as the emergency docket has become so busy. That said, I suspect the bigger issue for merits cases for the upcoming term is going to be the number of Trump *merits* cases, both the ones the Court is aware of and the ones it will almost certainly be holding at least some space for... That's not to say your friend's petition won't be granted. But the odds are probably a smidge longer than they would've been say, 7-8 years ago.
What a ridiculous country. Our Supreme Court, the formerly most venerable institution of all, is now considering who can use which bathroom in a podunk high school. We are truly through the looking glass here.
That sounds like the kind of comment that helped get Trump reelected.
It's not the comment, it's the issue.
What's the difference if the comment reflects the issue? If I understood the original comment correctly, Linda doesn't consider challenges by women and girls regarding gender ideology to be even worthy of discussion (boys & men using women's facilities, "gender-affirming care" for minors, boys and men competing in female sports teams, etc.). My point is that that dismissive attitude is one of the things that helped get Trump reelected (a disastrous outcome in my opinion).
It's not that these matters are not worthy of discussion, but what it says about our times that they have become so fraught.
Thank you Steve! Great analysis!
Thank you again. So many things to keep up with and you make that a bit easier!
I had to get out my electron microscope To get a good look at that trivia.
I'm learning to appreciate that one sign of a deteriorating society is the degree to which every day people need to learn the intricacies of its legal system just to survive. How many immigrants and business owners now need to understand civil procedure in order to better understand their rights or how to plan their strategies? Tiring and unfair.
Very interesting analysis, but it raises a question. Prof. Vladek posits that the Supreme Court will reach the merits of the TPS and tariff cases in the OT2025 term because the Court will receive (and presumably grant) cert. petitions in the next few months. I wonder whether the Justices could instead decide not to act on the petitions -- neither denying nor granting them. If so, the Court would not hear the cases on the merits. And, the grants of emergency relief would continue until the Court rules on the petitions. How likely is it that could happen?
It's certainly *possible.* We saw the Court play similar games, for instance, with the petition in the Dobbs case. But I think it's less likely here both because (1) the justices know they'll have to deal with these cases eventually; and (2) there will be several of them.
Regardless how you feel about the outcomes of judicial decisions we are all now bound up in these outcomes. The Trump administration is like a large apartment house that is on fire and the larger population is like people watching live news coverage. Even though there are people , property and pets still in the building the Congress is a gathering crowd on the sidewalk watching the fire, many with their phones out creating video footage. The Courts are the responding emergency fire, EMT and police personnel...and we are just beginning to hear the sirens off in the distance. Will they arrive in time while the Congress watches the catastrophe unfolding figuring someone...anyone... may decide to run toward the danger...?
Well, there were sightings of garbage bags being tossed from a White House window reported this morning. Maybe the fire has started.
And the worst part is that these are some of the least problematic cases SCOTUS was hoping to dodge. Those will be decided in the term before midterms. In trying to limit nationwide injunctions, the Federalist/Royalist faction raised the stakes on cases that it and Appellate Courts could have sat upon until after 2026 elections.
How unusual is it for a circuit panel majority to revise its decision when facing the prospect of en banc review?
It seems they should have known the original decision was vulnerable to en banc reversal, in which case I would have expected a bit more care in the original majority opinion.
I feel the 'avoiding excessive confrontation' (a.k.a. 'appeasement') theory is the more persuasive explanation for the Court dragging its feet. But, in my view, the Court is putting off not just its reckoning with Trump, but with a heightened scrutiny from the public who are eager to see the Court finally show its work so we can determine whether or not their arguments/decisions are persuasive. The Court is to blame for how it invited the Trump administration's (ab)uses of the Emergency/Shadow docket, but I've seen evidence the public is growing tired of the Court's constantly balancing the equities so predictably in the government's favor.
Very interesting observations today, Steve! Thank you.