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Jon Saxton's avatar

You say, “. . . many of the federal government’s applications have centered on plausible (if not meritorious) procedural objections to the adverse district court ruling at issue—such as arguments that the plaintiffs lack standing; that their claims can’t be brought under the Administrative Procedure Act; that nationwide injunctions are categorically improper; that judicial review is foreclosed by statute; that discovery requests have been overbroad; etc.”

And your (very generous) take on this is that the court may be saving its powder to deal substantively with a few more substantive issues. But you never consider the less generous take: That there is effectively collusion between the DOJ and the SCOTUS majority to effectively delay, delay, delay rulings on the merits or based on the merits because, with time, the Trump Administration can put such facts on the ground as to make it impractical to rule against the outcomes.

So, what about the argument that the SCOTUS majority is basically ‘ghosting’ us and that they are basically enabling the Administration to recast the Presidency and the rule of law around the goal of effecting the imperial presidency and a significant curtailment of rights and liberties Americans have won over the last century, and ‘the administrative state, including the regulatory guardrails that have brought principles and processes of democracy and equity into the marketplaces of commerce and ideas.

This explanation feels more likely to me than the one you’ve outlined. What say you?

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Steve L's avatar

I do have the sense that the majority is trying to preserve its authoritative capital for the big cases, an approach I think Republican senators have also adopted, e.g., in approving Trump’s awful nominations. From the outside, it seems clear that this is a bad strategy—standing on principle becomes harder rather than easier the more you put it off.

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