The justices have granted at least some of the relief the Justice Department has sought in each of its last 10 applications. There are some obvious reasons why, but also some less obvious ones.
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?
While I'd never presume to answer on Prof. Vladeck's behalf, suggesting even *tacit* collusion between the DOJ & SCOTUS majority is a rather grave accusation (one with possible criminal implications for parties involved, depending on the specifics), and I'm not sure there's sufficient evidence to support such a claim. I'm further unclear why you'd assume a Supreme Court would effectively want to end its own existence: the dystopian – or perhaps overly Chicken Little-esque, depending on one's perspective – scenario you present of a totalitarian, fully unleashed president would mean their own demise. (Dictators don't exactly need judges.)
Prof. Vladeck has previously gone over the various scenarios that would suggest we're truly in a constitutional crisis. We're honestly not there yet (or all that close), and we'd likely need a ruling that's a full-on frontal assault against basic constitutional precepts. (Siding with the far-right's views on birthright citizenship is one of them.)
That said, I think Prof. Vladeck's take about the Court "saving its powder" for bigger fights down the road is likely accurate, as was his point that the Court – with the same composition – granted Biden's EOs more often than not (which would suggest that the issue here is excessive deference to the executive branch, not covert collusion).
Finally, I think there's very little chance John Roberts wants to go down in history as the chief justice who let the Floridian fascist destroy nearly 240 years of American jurisprudence. He has *his* legacy to worry about, and if anything that could be the best explanation for his sometimes-much-too-extreme executive deference.
Thanks for your comment. I'm not suggesting anything like active, above-board collusion between SCOTUS and the DOJ. I'm suggesting that this court has gone out of its way to pave the way for a 'unitary' executive and for the vast enhancement of presidential authority and immunity from accountability.
If my memory serves me correctly, Steve V. has provided ample evidence of the ways in which the court has contorted itself to these ends through overturning long-settled precedents, new uses and processes for emergency petitions, through the new 'out-of-thin-air 'major questions doctrine,' the ways that Justices like Gorsuch and Thomas have used footnotes throughout their terms painting the pathways by which to get Trump and the Federalist Society (and a Trumpist DOJ) what they want in a new era of SCOTUS jurisprudence; and, what, at least to my mind, will amount to firmly grounding authoritarian governance in constitutional doctrine.
Clearly, the DOJ people drafting the emergency petitions have taken all of these lessons to heart and are crafting appeals and petitions, etc., in ways that are designed to take advantage of these very clear signals, doctrinal hijinks, and not-very-subtle doctrinal guidance.
This has nothing to do with letting Trump or the Federalist Society destroy 240 years of jurisprudence. It has to do with 'recasting' the Constitution and constitutional law to serve the new sorts of alt-right ideologues with which the SCOTUS majority is ideologically aligned. It's all being rooted pretty explicitly by the SCOTUS majority by whatever 'legitimate' means they can invent.
And we know how hard and how successfully Mitch McConnell worked to create exactly that sort of majority and these sorts of outcomes.
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.
As I’ve said for at least a year now, the Courts will not save us from Trump.
SCOTUS will not save us from Trump’s abuse of extraordinary emergency powers nor from his violations of due process—the right upon which all other individual rights depend. That should surprise no one after the Roberts Court’s ludicrous opinion on presidential immunity last July, which—in effect—licensed Trump to carry out with impunity exactly the kind of illegal acts he is now undertaking.
Yes, the Roberts Court might in some cases recognize legal barriers to Trump’s abuses, but those barriers will most often be procedural. The Court’s opinions will usually be an admonition that Trump must perform his abuses in a way that avoids legal barriers. And finally the Court’s opinions will give Trump helpful instructions about exactly how he can get around, or go through, the paper barriers the Court has erected.
For example, when Trump invoked the Alien Enemies Act (AEA) as a tool for his deportation program, the courts said, “You can do that, President Trump, but only if you alledge the factual predicate necessary to support your invocation of AEA.” That’s a paper barrier, not a real world barrier, because the courts have also ruled that judges MUST ACCEPT AS TRUE whatever facts Trump alleges to support invocation of extraordinary powers, even if Trump’s factual assertions are demonstrably false and contradicted by mountains of real-world evidence, including Trump’s own public statements and acts.
The upshot of the Roberts Court’s rulings says, “Mr. President, if you want to claim extraordinary emergency powers, you can do so, but you’ll need to lie better.”
That is exactly how the Roberts Court will rule on Trump’s use of military to quell the trumped-up fake emergency purportedly arising from protests now occurring across the country. The Roberts Court will carefully check to see whether Trump has dotted the I’s and crossed the T’s in all the magic words of his factual allegations in Court papers, but will not allow any judicial review of whether Trump’s factual allegations are in any way true to the real facts in the real world.
Roberts seems to think SCOTUS must find a way to defer to the executive branch on every decisive controversial issue, lest SCOTUS lose its legitimacy by appearing to have become too political.
I repeat, SCOTUS will not save us from Trump’s abuses of power.
"That is exactly how the Roberts Court will rule on Trump’s use of military to quell the trumped-up fake emergency purportedly arising from protests now occurring across the country."
Just as a reminder, this is largely identical to deploying the Guard and various federal agencies on cities across America after George Floyd's murder. Why Trump now thinks this will *help*, as opposed to hurting, his popularity with Americans (aside from MAGA cultists) is a curious question, but I suspect the end result will be the same.
"I repeat, SCOTUS will not save us from Trump’s abuses of power."
And I'll repeat that SCOTUS is the only entity that CAN save us from Trump's abuses of power – and they've already done so in the Abrego Garcia case (a unanimous ruling against Trump, as a reminder) – in the face of a Congress likely neutered until after next year's midterms.
Consider this point: SCOTUS giving Trump everything he wants would mean their *own* undoing. (Dictators don't use judges for anything other than rubber-stamping their imperial rulings.) What possible reason would anyone on the Court have for tearing up the Constitution?
Trump brought Garcia back only because he decided to, not because SCOTUS forced him to. Trump brought Garcia back only after he had laid the groundwork (probably a specious groundwork) to justify prosecuting him and then shipping him right back to CECOT. And Garcia was just one of around 250 persons still sitting in CECOT (or some other unknown gulag), where they were sent in violation of a court order and where they are still held in continuing violation of court orders and SCOTUS rulings that Trump must facilitate their return and ensure that such persons have a chance to assert their due process rights. So it’s wrong to think SCOTUS brought about Garcia’s return when SCOTUS has failed to budge Trump in 250 very similar cases.
You asked the rhetorical question, “What possible reason would anyone on the Court have for tearing up the Constitution?” I assume it is unnecessary to answer that question as to Alito and Thomas.
But if you’re still asking that question as to Roberts, whose vote will probably be decisive in most of these cases, you should reread Vladeck’s post, which explains SCOTUS’ timidity. Roberts is afraid of an open confrontation with Trump because he fears the constitutional crises that would occur if SCOTUS issued a firm order Trump couldn’t wire around, and then Trump explicitly replied, “I’m not going to follow your order.”
Roberts believes that he can avoid such a confrontation by resorting to a cowardly legal fiction that the bully Trump cannot be said to have stolen the Court’s lunch money if the weakling Court voluntarily gives Trump the lunch money BEFORE Trump steals it. Roberts fears that if SCOTUS doesn’t “voluntarily” give Trump the lunch money, Trump will take the lunch money anyway, and the Court will suffer the harmful humiliation of being punched in the nose for no useful purpose.
To describe the situation in a light more generous to SCOTUS’ integrity, I would say Roberts believes that to save the greater part of the Constitution, he must abandon—at least temporarily—a smaller part of the Constitution, even though that smaller part is itself a rather large part since the part Roberts now chooses to abandon implicates fundamental concepts of due process and the rule of law.
Is Roberts’ calculation cowardly or prudent?
I’d say it’s cowardice masquerading as prudence, because if you give Trump your lunch money voluntarily, he will want your lunch money every day thereafter, and eventually will punch you in the nose whether or not you “voluntarily” give up your lunch money, because that’s what authoritarian bullies do once they see you are afraid to stand up to them.
SCOTUS won’t save us, and I’m not sure it could even if it wanted to.
But who can save us?
We can save us. “We The People” can save us. But only if we find a way to impose enough political (economic!) pain that Republicans begin to peel away from Trumpism.
Yeah, a tall order, and it might take some time, with a lot of suffering in the meantime, but it can be done.
Personally, I think that the focus of opposition to Trump should be the damage Trump’s economic idiocy is causing, rather than a focus on immigration issues, because immigration is the ground on which Trump has chosen to fight.
That strategy of focusing on economics is the subject of comments I’ve made elsewhere in the substacks:
"That distinction might be especially significant in light of the last piece of this puzzle—the very real possibility that at least some of the justices (especially the justices in the 'middle' of the Court) are worried about how much capital they have to expend in confrontations with President Trump."
I've been wondering this exact same thing for months now, if only because some of their rulings are otherwise inexplicable (based on the justices' own obviously well-documented prior jurisprudence). While I find the notion of the Court being forced to "pick its battles" repulsive on the whole, I can't deny that Trump 2.0 has proven to be considerably more clever than expected (albeit even more incompetent), and I can see why Roberts in particular would want to remain focused on the Court's institutionality – even if it means handing them a few undeserved sort-of wins.
We're nearing Roberts's 20-year anniversary on the bench, and while I assume he's unlikely to go anywhere soon, he's the one tasked with preserving the Court's independence & legacy. Given how poorly history is likely to look back on the two Trump terms, I can't even fathom that Roberts would want to be remembered as the chief justice who handed a despot the keys to the kingdom.
Massively valuable analysis and perspective from your expertise! Thank you so much for providing us the scaffolding on which to build our resilience and perseverance.
Do you think these Supreme Court rulings are having an ultimate effect on the merits in the lower courts? That is, even though SCOTUS is not ruling on the merits, the mere fact of emergency relief paired with vague reasoning is putting a thumb on the scale on remand?
Interesting suggestion on the approach of plaintiffs arguments and, presumably, the resulting lower court rulings. I've also noticed a trend in lower courts that find for the government--it is often on procedural grounds: either lack of standing or being in the wrong court.
There seems to be a ducking of dealing with the actual issues in these cases: is or is not the thing complained of government overreach.
Given the Extreme's allowance of standing in the "marriage website" case, it seems that there is a disturbing confusion on what constitutes standing and it gets in the way of getting to the issues. I'm sure you've addressed this before.
I've always felt, as an example, that the website case ended up as sound and fury signifying nothing. It has ALWAYS been the case that laws can't force people to make things against their religious beliefs. That is NOT the same question as that of whether a religious belief allows one to discriminate against those of another religion or against a "repugnant" attitude if the buyer has agreed to purchase the object "as is." This got buried because of the standing issue: since she had never MADE a website there is no way of telling what would happen if a gay couple said "I'll take a website about our wedding that has any religious imprecations you want to make about your beliefs."
So the “loose idealogical alignment” betw. the court’s majority and the Trump regime accounts for a 29% thumb-on-the-scale for Trump. Procedure vs. merits will matter less in a practical sense because the destruction is so rapid, thorough, and cruel. A couple things:
1) It seems weird to me to have lifetime appointees worry about ‘capital’ when history is likely to view the Roberts court as a captured majority regardless. A Christian Nationalist view of the unitary executive is still the banner they fly under, even if they pretend the regime is not smashing and grabbing power and persecuting the people who live here. Unlawful is friggin’ unlawful. The ends still don’t justify the means, even if the ends were noble instead self-serving and gross.
2) Do they expect that Trump might not flout their orders outright as long as they clear, say, the 28% favorable ruling threshold?
3) My rigid brain tells me they at least should make an effort to abide by their oath instead of trying to tinker with rulings in favor of an out loud fascist regime. FFS. I don’t doubt Professor Vladeck’s probable conclusions. It’s just been so rough watching the 2-steps-forward, 3-steps-toward-tyranny dance Roberts is trying to orchestrate so the Court doesn’t seem as captured as the majority really is.
We are all continuing to analyze why we have a Supreme Court with little, or no, explanation seems to do things that require asterisks to be inserted into every first year of law school lesson. "This is how you balance the equities in applying equitable relief such as temporary restraining orders or preliminary injunctions - subject to just resorting to 'what the hell - its Trump'."
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?
While I'd never presume to answer on Prof. Vladeck's behalf, suggesting even *tacit* collusion between the DOJ & SCOTUS majority is a rather grave accusation (one with possible criminal implications for parties involved, depending on the specifics), and I'm not sure there's sufficient evidence to support such a claim. I'm further unclear why you'd assume a Supreme Court would effectively want to end its own existence: the dystopian – or perhaps overly Chicken Little-esque, depending on one's perspective – scenario you present of a totalitarian, fully unleashed president would mean their own demise. (Dictators don't exactly need judges.)
Prof. Vladeck has previously gone over the various scenarios that would suggest we're truly in a constitutional crisis. We're honestly not there yet (or all that close), and we'd likely need a ruling that's a full-on frontal assault against basic constitutional precepts. (Siding with the far-right's views on birthright citizenship is one of them.)
That said, I think Prof. Vladeck's take about the Court "saving its powder" for bigger fights down the road is likely accurate, as was his point that the Court – with the same composition – granted Biden's EOs more often than not (which would suggest that the issue here is excessive deference to the executive branch, not covert collusion).
Finally, I think there's very little chance John Roberts wants to go down in history as the chief justice who let the Floridian fascist destroy nearly 240 years of American jurisprudence. He has *his* legacy to worry about, and if anything that could be the best explanation for his sometimes-much-too-extreme executive deference.
Thanks for your comment. I'm not suggesting anything like active, above-board collusion between SCOTUS and the DOJ. I'm suggesting that this court has gone out of its way to pave the way for a 'unitary' executive and for the vast enhancement of presidential authority and immunity from accountability.
If my memory serves me correctly, Steve V. has provided ample evidence of the ways in which the court has contorted itself to these ends through overturning long-settled precedents, new uses and processes for emergency petitions, through the new 'out-of-thin-air 'major questions doctrine,' the ways that Justices like Gorsuch and Thomas have used footnotes throughout their terms painting the pathways by which to get Trump and the Federalist Society (and a Trumpist DOJ) what they want in a new era of SCOTUS jurisprudence; and, what, at least to my mind, will amount to firmly grounding authoritarian governance in constitutional doctrine.
Clearly, the DOJ people drafting the emergency petitions have taken all of these lessons to heart and are crafting appeals and petitions, etc., in ways that are designed to take advantage of these very clear signals, doctrinal hijinks, and not-very-subtle doctrinal guidance.
This has nothing to do with letting Trump or the Federalist Society destroy 240 years of jurisprudence. It has to do with 'recasting' the Constitution and constitutional law to serve the new sorts of alt-right ideologues with which the SCOTUS majority is ideologically aligned. It's all being rooted pretty explicitly by the SCOTUS majority by whatever 'legitimate' means they can invent.
And we know how hard and how successfully Mitch McConnell worked to create exactly that sort of majority and these sorts of outcomes.
https://open.substack.com/pub/schiffnotes/p/donald-trump-is-fighting-with-one?utm_source=share&utm_medium=android&r=58l0dx
After today’s “disastrous” ruling, I rest my case
I find your analysis persuasive here (and below).
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.
As I’ve said for at least a year now, the Courts will not save us from Trump.
SCOTUS will not save us from Trump’s abuse of extraordinary emergency powers nor from his violations of due process—the right upon which all other individual rights depend. That should surprise no one after the Roberts Court’s ludicrous opinion on presidential immunity last July, which—in effect—licensed Trump to carry out with impunity exactly the kind of illegal acts he is now undertaking.
Yes, the Roberts Court might in some cases recognize legal barriers to Trump’s abuses, but those barriers will most often be procedural. The Court’s opinions will usually be an admonition that Trump must perform his abuses in a way that avoids legal barriers. And finally the Court’s opinions will give Trump helpful instructions about exactly how he can get around, or go through, the paper barriers the Court has erected.
For example, when Trump invoked the Alien Enemies Act (AEA) as a tool for his deportation program, the courts said, “You can do that, President Trump, but only if you alledge the factual predicate necessary to support your invocation of AEA.” That’s a paper barrier, not a real world barrier, because the courts have also ruled that judges MUST ACCEPT AS TRUE whatever facts Trump alleges to support invocation of extraordinary powers, even if Trump’s factual assertions are demonstrably false and contradicted by mountains of real-world evidence, including Trump’s own public statements and acts.
The upshot of the Roberts Court’s rulings says, “Mr. President, if you want to claim extraordinary emergency powers, you can do so, but you’ll need to lie better.”
That is exactly how the Roberts Court will rule on Trump’s use of military to quell the trumped-up fake emergency purportedly arising from protests now occurring across the country. The Roberts Court will carefully check to see whether Trump has dotted the I’s and crossed the T’s in all the magic words of his factual allegations in Court papers, but will not allow any judicial review of whether Trump’s factual allegations are in any way true to the real facts in the real world.
Roberts seems to think SCOTUS must find a way to defer to the executive branch on every decisive controversial issue, lest SCOTUS lose its legitimacy by appearing to have become too political.
I repeat, SCOTUS will not save us from Trump’s abuses of power.
"That is exactly how the Roberts Court will rule on Trump’s use of military to quell the trumped-up fake emergency purportedly arising from protests now occurring across the country."
Just as a reminder, this is largely identical to deploying the Guard and various federal agencies on cities across America after George Floyd's murder. Why Trump now thinks this will *help*, as opposed to hurting, his popularity with Americans (aside from MAGA cultists) is a curious question, but I suspect the end result will be the same.
"I repeat, SCOTUS will not save us from Trump’s abuses of power."
And I'll repeat that SCOTUS is the only entity that CAN save us from Trump's abuses of power – and they've already done so in the Abrego Garcia case (a unanimous ruling against Trump, as a reminder) – in the face of a Congress likely neutered until after next year's midterms.
Consider this point: SCOTUS giving Trump everything he wants would mean their *own* undoing. (Dictators don't use judges for anything other than rubber-stamping their imperial rulings.) What possible reason would anyone on the Court have for tearing up the Constitution?
Trump brought Garcia back only because he decided to, not because SCOTUS forced him to. Trump brought Garcia back only after he had laid the groundwork (probably a specious groundwork) to justify prosecuting him and then shipping him right back to CECOT. And Garcia was just one of around 250 persons still sitting in CECOT (or some other unknown gulag), where they were sent in violation of a court order and where they are still held in continuing violation of court orders and SCOTUS rulings that Trump must facilitate their return and ensure that such persons have a chance to assert their due process rights. So it’s wrong to think SCOTUS brought about Garcia’s return when SCOTUS has failed to budge Trump in 250 very similar cases.
You asked the rhetorical question, “What possible reason would anyone on the Court have for tearing up the Constitution?” I assume it is unnecessary to answer that question as to Alito and Thomas.
But if you’re still asking that question as to Roberts, whose vote will probably be decisive in most of these cases, you should reread Vladeck’s post, which explains SCOTUS’ timidity. Roberts is afraid of an open confrontation with Trump because he fears the constitutional crises that would occur if SCOTUS issued a firm order Trump couldn’t wire around, and then Trump explicitly replied, “I’m not going to follow your order.”
Roberts believes that he can avoid such a confrontation by resorting to a cowardly legal fiction that the bully Trump cannot be said to have stolen the Court’s lunch money if the weakling Court voluntarily gives Trump the lunch money BEFORE Trump steals it. Roberts fears that if SCOTUS doesn’t “voluntarily” give Trump the lunch money, Trump will take the lunch money anyway, and the Court will suffer the harmful humiliation of being punched in the nose for no useful purpose.
To describe the situation in a light more generous to SCOTUS’ integrity, I would say Roberts believes that to save the greater part of the Constitution, he must abandon—at least temporarily—a smaller part of the Constitution, even though that smaller part is itself a rather large part since the part Roberts now chooses to abandon implicates fundamental concepts of due process and the rule of law.
Is Roberts’ calculation cowardly or prudent?
I’d say it’s cowardice masquerading as prudence, because if you give Trump your lunch money voluntarily, he will want your lunch money every day thereafter, and eventually will punch you in the nose whether or not you “voluntarily” give up your lunch money, because that’s what authoritarian bullies do once they see you are afraid to stand up to them.
SCOTUS won’t save us, and I’m not sure it could even if it wanted to.
But who can save us?
We can save us. “We The People” can save us. But only if we find a way to impose enough political (economic!) pain that Republicans begin to peel away from Trumpism.
Yeah, a tall order, and it might take some time, with a lot of suffering in the meantime, but it can be done.
Personally, I think that the focus of opposition to Trump should be the damage Trump’s economic idiocy is causing, rather than a focus on immigration issues, because immigration is the ground on which Trump has chosen to fight.
That strategy of focusing on economics is the subject of comments I’ve made elsewhere in the substacks:
https://www.thebulwark.com/p/could-the-rage-after-la-defeat-trump/comment/124463819?r=2k6d1&utm_medium=ios
"That distinction might be especially significant in light of the last piece of this puzzle—the very real possibility that at least some of the justices (especially the justices in the 'middle' of the Court) are worried about how much capital they have to expend in confrontations with President Trump."
I've been wondering this exact same thing for months now, if only because some of their rulings are otherwise inexplicable (based on the justices' own obviously well-documented prior jurisprudence). While I find the notion of the Court being forced to "pick its battles" repulsive on the whole, I can't deny that Trump 2.0 has proven to be considerably more clever than expected (albeit even more incompetent), and I can see why Roberts in particular would want to remain focused on the Court's institutionality – even if it means handing them a few undeserved sort-of wins.
We're nearing Roberts's 20-year anniversary on the bench, and while I assume he's unlikely to go anywhere soon, he's the one tasked with preserving the Court's independence & legacy. Given how poorly history is likely to look back on the two Trump terms, I can't even fathom that Roberts would want to be remembered as the chief justice who handed a despot the keys to the kingdom.
Massively valuable analysis and perspective from your expertise! Thank you so much for providing us the scaffolding on which to build our resilience and perseverance.
Do you think these Supreme Court rulings are having an ultimate effect on the merits in the lower courts? That is, even though SCOTUS is not ruling on the merits, the mere fact of emergency relief paired with vague reasoning is putting a thumb on the scale on remand?
https://open.substack.com/pub/schiffnotes/p/donald-trump-is-fighting-with-one?utm_source=share&utm_medium=android&r=58l0dx
The comments here are as provocative and interesting as the Professor’s thoughts.
thank you for patient and careful analysis - hopefully the lower courts and plaintiff attorneys will take note of your thoughts Professor Vladek
Interesting suggestion on the approach of plaintiffs arguments and, presumably, the resulting lower court rulings. I've also noticed a trend in lower courts that find for the government--it is often on procedural grounds: either lack of standing or being in the wrong court.
There seems to be a ducking of dealing with the actual issues in these cases: is or is not the thing complained of government overreach.
Given the Extreme's allowance of standing in the "marriage website" case, it seems that there is a disturbing confusion on what constitutes standing and it gets in the way of getting to the issues. I'm sure you've addressed this before.
I've always felt, as an example, that the website case ended up as sound and fury signifying nothing. It has ALWAYS been the case that laws can't force people to make things against their religious beliefs. That is NOT the same question as that of whether a religious belief allows one to discriminate against those of another religion or against a "repugnant" attitude if the buyer has agreed to purchase the object "as is." This got buried because of the standing issue: since she had never MADE a website there is no way of telling what would happen if a gay couple said "I'll take a website about our wedding that has any religious imprecations you want to make about your beliefs."
So the “loose idealogical alignment” betw. the court’s majority and the Trump regime accounts for a 29% thumb-on-the-scale for Trump. Procedure vs. merits will matter less in a practical sense because the destruction is so rapid, thorough, and cruel. A couple things:
1) It seems weird to me to have lifetime appointees worry about ‘capital’ when history is likely to view the Roberts court as a captured majority regardless. A Christian Nationalist view of the unitary executive is still the banner they fly under, even if they pretend the regime is not smashing and grabbing power and persecuting the people who live here. Unlawful is friggin’ unlawful. The ends still don’t justify the means, even if the ends were noble instead self-serving and gross.
2) Do they expect that Trump might not flout their orders outright as long as they clear, say, the 28% favorable ruling threshold?
3) My rigid brain tells me they at least should make an effort to abide by their oath instead of trying to tinker with rulings in favor of an out loud fascist regime. FFS. I don’t doubt Professor Vladeck’s probable conclusions. It’s just been so rough watching the 2-steps-forward, 3-steps-toward-tyranny dance Roberts is trying to orchestrate so the Court doesn’t seem as captured as the majority really is.
We are all continuing to analyze why we have a Supreme Court with little, or no, explanation seems to do things that require asterisks to be inserted into every first year of law school lesson. "This is how you balance the equities in applying equitable relief such as temporary restraining orders or preliminary injunctions - subject to just resorting to 'what the hell - its Trump'."