The en banc Fourth Circuit's divide in the DOGE/Social Security case is the latest example of how assessments of the Supreme Court's behavior on emergency applications are sorting us ideologically.
I would like to know what the average number of grants are at the midway point of a term for the next term, say over the past 25 years. Comparing this year to last year is like comparing two unusually hot summers to each other without looking at the longer-term trend. Is this a long-term downward trend or are we seeing something anomalous?
First, sounds like Sotomayor and Kavanaugh had some tussle about "If you don't like a decision, a state law, etc., you can move or attend state hearings during the work day, etc." I had these discussions with a former libertarian who grew up rich and would endorse radical changes to life as a means of dealing with local issues.
Second, I am not a judge for good reason because I would use even more inflammatory rhetoric to mock the Supreme Court's lack of reasoning, i.e. "The number of left-handed Presbyterians among parties and counsels compels the court to do X." Make it clear that the reason to explain the Court's actions is so that others can follow your reasoning in different cases, and let the Court know that blank decisions will be used as judges see fit.
thank you for putting words to our thoughts and feelings about what is transpiring in our federal judicial system. hopefully calmer and less siloed thinking/writings will be prevailing in near future.
Isn’t the “precedent” by the shadow docket stay just that lower courts must follow the guidance on assessing the four things noted in that brief order?
Also, why does the Court only produce written decisions for like 50 cases a year at this point? According to Wikipedia, the Court issued written decisions for triple digit cases (300+ in many years!) for almost all years from 1913 to 1993. What has caused this extreme reduction?
Sadly, we are now in a “new legal universe” where Courts can announce a decision and no longer have to provide “reasoning.” The Supreme Court has led the way by saying it is permissible to decide a case by (1) setting forth the legal “test” for prevailing, and (2) simply announcing which party prevailed. Chief Justice summed it up years ago by using the “calling balls and strikes” metaphor. Autocracy is so much easier when YOU NEVER HAVE TO PROVIDE REASONING AND ANALYSIS. The next step might be if the Court does away with “legal tests” — e.g., defining 1st A “establishment,” 4th A “reasonableness,” or 8th A “cruel and unusual punishment” — and just decides cases without an opinion.
The irony is that thanks to ABS balls and strikes are now more appealable, and better governed by facts and logic, than most of the Supreme Court's decisions.
Might it have been reasonable, as well, to have denied the government's application on the basis that they came to the court with unclean hands, given the extraordinary confession of having provided substantial false information in the original round of proceedings? This ruling seems to reward the original falsehoods.
The more interesting aspect of the decision to me was that the court found Article III standing based on the disclosure itself being a concrete injury analogous to the common law tort of intrusion upon seclusion. The court has rightly abrogated earlier holdings denying standing despite a clear statutory right and apparent violations of age old privacy torts -- or what are now sometimes called "information fiduciary" torts. This area of law and its intersection with the Fourth Amendment is probably the most serious threat to liberty today, and something SCOTUS will hopefully have more to say about in the Chatrie case -- if only to remark that we have state common law for a reason.
What I don't understand is why court of appeals judges aren't uniformly upset that the Supreme Court regularly lets parties leapfrog over the courts of appeals when it comes to stays pending appeal. Once the district court declines to issue a stay, the next step is or ought to be the applicable circuit court. But the administration isn't satisfied with that. Those folks want to go straight to the stop, cutting out the judicial middle man. Why haven't court of appeals judges complained? Why has the Supreme Court allowed this to happen? Do the rules mean nothing?
I was struck by this quote, " The unfortunate effect of Judge King and Wynn’s approach will be to aggrandize the role of the lower federal courts at the expense of the Supreme Court’s own place in a hierarchical judicial system."
The key word here is "hierarchical." One of the divisions between someone who is more conservative vs. liberal is that the former values hierarchy and authority; whereas the latter values equality and fairness. It strikes me that many judges on the right were appointed as real conservatives, as opposed to reactionaries like the MAGA movement.
If you consider it this way, it is not surprising that many judges on the right would prioritize following the authority of the highest court. I would certainly argue that makes no sense - you can't make fair and even-handed rulings if you are blind about the reasoning that could make them fair.
But then, I'm liberal. Of course I prioritize the fairness above the authority of the system.
Is the description of Justice Sotomayor’s reported but not recorded comments about Justice Kavanaugh as “wildly out of character” another confirmation that Justices are indeed human. If pushed beyond some limit by the people with whom they interact they may “lose their cool” like the rest of us, and then have to say, if or when they try to excuse themselves, “pardon my French.” It is interesting that the equivalent expression in French is not “Pardonnez mon anglais” but “Passez-moi l'expression”. Whereas a condom in French is referred to as a “capot anglais” (English bonnet) and in English idiom is known as a “French letter.”
Meanwhile I cannot help wondering what Justice Alito in particular thinks of Trump’s attacks on Pope Leo, and whether there will be any impact on the current Court’s apparent move or tendency to give higher priority to rights claimed on the basis of faith or religious doctrine, or take a very expansive view of their scope compared to other rights that are secular, e.g., the right not to have one’s life or well-being imperiled (exemptions to vaccination) or the pursuit of happiness impeded (refusal of service by a business to a non-heterosexual couple). The fewer or sparser the reasons the Court provides for its majority decisions, the harder it may be to ascertain if a Justice’s religious beliefs are playing an undesirably large or unconstitutional role in the conclusions he or she reaches.
PS Another observation about language: I have learned that the Supreme Court should no longer rely on the presumption of "regularity" about the DOJ and its lawyers, as if it were a matter involving some bodily function. Maybe it does, given the "indigestible" content of some of this Court's rulings. But am I correct that "regularity" in this case means acting in good faith and following legal procedures? Evidently this DOJ is not and does not, or in plain non-lawyers' words it is dishonest and lawless. Hence should the Court not explicity recognize this irrefutable fact, and hence when or if it does (or bothers to) explain its rulings, state clearly that the DOJ's claims and evidence in support of its position have been rejected, because the DOJ is not or is no longer a credible or trustworthy advocate or witness? Lie to me once, shame on you; Lie to me twice and again and again and if I believe you, woe is me.
And now I wonder if Alito feels conflicted after Trump's latest outrageous comments about people who dare to disagree with his wisdom and genius, or raise any doubts about the morality which guides him in deciding whom to attack, and where, when and how. They now include the Pope who also apparently played no role in the process that resulted in the conversion of the Vice President.
Thank you for the very informative analysis and critique of the opposing concurring opinions in the Fourth Circuit’s remand in the DOGE injunction case.
And your point that the Supreme Court’s Republican majority is undermining the legitimacy of the Supreme Court by it’s refusal to explain the legal justification for the stays of lower court rulings is right on the money!
4th Cir- trickle down politics to circuits. Nothing to decide after data is released.
Sottomayor 's comment was curious, but maybe it has just got tiresome working in a frat house.
I would like to know what the average number of grants are at the midway point of a term for the next term, say over the past 25 years. Comparing this year to last year is like comparing two unusually hot summers to each other without looking at the longer-term trend. Is this a long-term downward trend or are we seeing something anomalous?
First, sounds like Sotomayor and Kavanaugh had some tussle about "If you don't like a decision, a state law, etc., you can move or attend state hearings during the work day, etc." I had these discussions with a former libertarian who grew up rich and would endorse radical changes to life as a means of dealing with local issues.
Second, I am not a judge for good reason because I would use even more inflammatory rhetoric to mock the Supreme Court's lack of reasoning, i.e. "The number of left-handed Presbyterians among parties and counsels compels the court to do X." Make it clear that the reason to explain the Court's actions is so that others can follow your reasoning in different cases, and let the Court know that blank decisions will be used as judges see fit.
thank you for putting words to our thoughts and feelings about what is transpiring in our federal judicial system. hopefully calmer and less siloed thinking/writings will be prevailing in near future.
Isn’t the “precedent” by the shadow docket stay just that lower courts must follow the guidance on assessing the four things noted in that brief order?
Also, why does the Court only produce written decisions for like 50 cases a year at this point? According to Wikipedia, the Court issued written decisions for triple digit cases (300+ in many years!) for almost all years from 1913 to 1993. What has caused this extreme reduction?
At least the legal realists are having a fun time.
Sadly, we are now in a “new legal universe” where Courts can announce a decision and no longer have to provide “reasoning.” The Supreme Court has led the way by saying it is permissible to decide a case by (1) setting forth the legal “test” for prevailing, and (2) simply announcing which party prevailed. Chief Justice summed it up years ago by using the “calling balls and strikes” metaphor. Autocracy is so much easier when YOU NEVER HAVE TO PROVIDE REASONING AND ANALYSIS. The next step might be if the Court does away with “legal tests” — e.g., defining 1st A “establishment,” 4th A “reasonableness,” or 8th A “cruel and unusual punishment” — and just decides cases without an opinion.
The irony is that thanks to ABS balls and strikes are now more appealable, and better governed by facts and logic, than most of the Supreme Court's decisions.
Might it have been reasonable, as well, to have denied the government's application on the basis that they came to the court with unclean hands, given the extraordinary confession of having provided substantial false information in the original round of proceedings? This ruling seems to reward the original falsehoods.
I agree with your comment:
Judge Wilkinson’s concurrence is propping the Supreme Court up entirely on the backs of straw men.
I can tell you from the chatter on social media that
the Supreme Court does not have the trust of the majority of American citizens of either party.
The more interesting aspect of the decision to me was that the court found Article III standing based on the disclosure itself being a concrete injury analogous to the common law tort of intrusion upon seclusion. The court has rightly abrogated earlier holdings denying standing despite a clear statutory right and apparent violations of age old privacy torts -- or what are now sometimes called "information fiduciary" torts. This area of law and its intersection with the Fourth Amendment is probably the most serious threat to liberty today, and something SCOTUS will hopefully have more to say about in the Chatrie case -- if only to remark that we have state common law for a reason.
What I don't understand is why court of appeals judges aren't uniformly upset that the Supreme Court regularly lets parties leapfrog over the courts of appeals when it comes to stays pending appeal. Once the district court declines to issue a stay, the next step is or ought to be the applicable circuit court. But the administration isn't satisfied with that. Those folks want to go straight to the stop, cutting out the judicial middle man. Why haven't court of appeals judges complained? Why has the Supreme Court allowed this to happen? Do the rules mean nothing?
I was struck by this quote, " The unfortunate effect of Judge King and Wynn’s approach will be to aggrandize the role of the lower federal courts at the expense of the Supreme Court’s own place in a hierarchical judicial system."
The key word here is "hierarchical." One of the divisions between someone who is more conservative vs. liberal is that the former values hierarchy and authority; whereas the latter values equality and fairness. It strikes me that many judges on the right were appointed as real conservatives, as opposed to reactionaries like the MAGA movement.
If you consider it this way, it is not surprising that many judges on the right would prioritize following the authority of the highest court. I would certainly argue that makes no sense - you can't make fair and even-handed rulings if you are blind about the reasoning that could make them fair.
But then, I'm liberal. Of course I prioritize the fairness above the authority of the system.
Is the description of Justice Sotomayor’s reported but not recorded comments about Justice Kavanaugh as “wildly out of character” another confirmation that Justices are indeed human. If pushed beyond some limit by the people with whom they interact they may “lose their cool” like the rest of us, and then have to say, if or when they try to excuse themselves, “pardon my French.” It is interesting that the equivalent expression in French is not “Pardonnez mon anglais” but “Passez-moi l'expression”. Whereas a condom in French is referred to as a “capot anglais” (English bonnet) and in English idiom is known as a “French letter.”
Meanwhile I cannot help wondering what Justice Alito in particular thinks of Trump’s attacks on Pope Leo, and whether there will be any impact on the current Court’s apparent move or tendency to give higher priority to rights claimed on the basis of faith or religious doctrine, or take a very expansive view of their scope compared to other rights that are secular, e.g., the right not to have one’s life or well-being imperiled (exemptions to vaccination) or the pursuit of happiness impeded (refusal of service by a business to a non-heterosexual couple). The fewer or sparser the reasons the Court provides for its majority decisions, the harder it may be to ascertain if a Justice’s religious beliefs are playing an undesirably large or unconstitutional role in the conclusions he or she reaches.
PS Another observation about language: I have learned that the Supreme Court should no longer rely on the presumption of "regularity" about the DOJ and its lawyers, as if it were a matter involving some bodily function. Maybe it does, given the "indigestible" content of some of this Court's rulings. But am I correct that "regularity" in this case means acting in good faith and following legal procedures? Evidently this DOJ is not and does not, or in plain non-lawyers' words it is dishonest and lawless. Hence should the Court not explicity recognize this irrefutable fact, and hence when or if it does (or bothers to) explain its rulings, state clearly that the DOJ's claims and evidence in support of its position have been rejected, because the DOJ is not or is no longer a credible or trustworthy advocate or witness? Lie to me once, shame on you; Lie to me twice and again and again and if I believe you, woe is me.
I wondered about J Alito, too.
And now I wonder if Alito feels conflicted after Trump's latest outrageous comments about people who dare to disagree with his wisdom and genius, or raise any doubts about the morality which guides him in deciding whom to attack, and where, when and how. They now include the Pope who also apparently played no role in the process that resulted in the conversion of the Vice President.
Thank you for the very informative analysis and critique of the opposing concurring opinions in the Fourth Circuit’s remand in the DOGE injunction case.
And your point that the Supreme Court’s Republican majority is undermining the legitimacy of the Supreme Court by it’s refusal to explain the legal justification for the stays of lower court rulings is right on the money!
Please find a new platform. We will follow you.
I wonder what Judge Luttig thinks of his brother Wilkinson’s somewhat precious views.