MOUNTAINH33L
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Banning transgender troops has nothing to do with military readiness. It's all about cruelty. These ghouls relish inflicting pain on transgender people any way they can. MAGA Christianity.
Trump Admin SCOTUS cases | SCOTUS 8-1 permits rescinding protection for Venezuelans
- Thread starter nycfan
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Also, anything trans is a News win for MAGA and the GOP (supposedly fair-minded, freedom-loving, civil rights-supporting “moderates” and “Independents” lose their shit whenever trans are mentioned).
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Honestly it is a very unfortunate arc we are on The POTUS has made several really unconstitutional edicts On the other hand National "policy " should not be determined "daily" by individual Federal judges. It is a lose -lose type of scenario. Obviously SCOTUS will slow walk any review of crappy edicts........
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The SCOTUS seems pretty open to continuing national-wide relief by district courts in certain cases — some discussion of avoiding a practical implementation issue of having a stream of regional decisions flood the courts and SCOTUS being flooded with appeal of circuit court decisions on nation-wide stays.
superrific
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Stupid litigation strategy by DOJ, but I guess they have a loser hand. The justices are clearly angered by the prospect of the administration losing every case, but never appealing to the Supreme Court -- relying instead on a lack of universal injunction to continue to litigate the same claims over and over. In an extreme case, you could imagine the government requiring every district in the US to issue an injunction. What a colossal waste of judicial resources.
I've been thinking about this issue. I initially thought it was difficult. I'm not sure that's true (though, caveat, I haven't been thinking about it for a super long time nor have I researched what other scholars or lawyers have had to say). I think there are a couple of tests that could distinguish good from bad.
A. This was suggested by plaintiffs' counsel today: no universal injunctions unless there is a fundamental constitutional issue at stake that would almost certainly be a shared interest among millions of Americans. You could augment that with a requirement that the violation be clear and readily discernable.
B. Another similar idea is to rely on mootness principles. In mootness, when a case develops so that there's no longer anything at stake, the case is declared moot -- unless it falls into an exception of "capable of repetition and evading review." One classic example of this mootness exception comes in the abortion context: after all, Ms. Roe had already given birth when Roe v. Wade hit the Supremes. The case was moot on its facts, but obviously the denial of abortion rights was guaranteed to repeat and it would evade review because few women would have the resources and interest in fighting while pregnant.
You could use the same idea here. A universal injunction would be appropriate when, otherwise, the government can just repeat the enjoined conduct and its deprivations will evade review because it will be hard to litigate on a case by case basis.
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My intuition here, based on my own inferences from what I know about the Justices, is that we're likely to get a unanimous opinion -- at least 7-2, maybe 8-1. Thomas seems unsurprisingly happy to knock American jurisprudence back a century. Alito votes for Trump. But that's expected.
The question will be what standard is announced. I suspect it will be a standard that this case can meet, but maybe others -- e.g. the nationwide injunctions against abortion drugs, or against sweeping injunctions against the federal death penalty -- would not. Something along the lines of the two not-entirely-distinct options sketched above. None of the Justices seem all that interested in the underlying merits -- and again, the administration isn't even bringing the merits question to them, which is being interpreted as a sign that they have no case. So I think it will be a victory for states/plaintiffs; how big a victory (or loss) for the American people remains to be seen.
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Also, the SG wouldn't commit to following appeals court rulings. Bad idea. He lost ACB's vote if he ever had it.
TangledUpInBlue06
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I actually thought they were surprisingly eager to get to the merits (so they could slap down the EO) given the question before them was only the UI issue. Was it Gorsuch who asked the NJ SG how the Court could reach the merits quickly?
I don't know where they'll draw the line, but, boy was this an awful choice of cases to challenge UIs. Wherever the line is, I think this UI will fall on the acceptable side of it.
superrific
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1. My guess is that all the liberals voted not only to hear the case but to set it for full argument. The liberal position is: Yes, nationwide injunctions for constitutional violations, especially severe ones, and no nationwide injunctions for the Fifth Circuit bullshit.
And this case gives them their best chance at getting it. The court was going to be revisiting UIs very shortly anyway. This was a gift to Sotomayor (sort of ironically, since she is also clearly offended by the underlying policy as well she should be).
2. My understanding of Gorsuch's comment wasn't that he was talking about ruling in this case, and more to the general point. Kagan had pointed out that the administration has lost everywhere and hasn't appealed on the merits, indicating a litigation strategy of "make them sue everywhere to vindicate their rights." (note I don't listen to arguments and the transcript isn't out so I'm relying on media reports and inference). Then I think ACB asked if the administration would follow appeals court rulings -- presumably, the idea being that if a judge in, say, SDNY issues a nationwide injunction and then the Second Circuit upholds, the injunction should be valid all across the Second Circuit. The SG pushed back on that, saying that the Supreme Court orders were law of the land.
And hence Gorsuch's question: OK, you prefer us to weigh in rather than lower courts. Fine, how does the case even get here if you lose everywhere but don't appeal.
TangledUpInBlue06
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Maybe. I was able to half-listen to the arguments. My impression (which admittedly may be erroneous) was that several justices were eager to address the merits and none offered any defense of the EO. I took it as more than a hypothetical of 'how will we ever hear an issue if you lose and lose and lose and never appeal?' Gorsuch's question, I believe, was directed to the NJ SG and he responded in part by saying the Court could order supplemental briefing on the issue tomorrow if it wanted. It seemed to me the NJ SG also understood Gorsuch to be asking about the case at hand. And it would make sense as Gorsuch appears to be anti-UI and pro-plain text of the 14th.
Again, I may be wrong and could have misheard or misinterpreted.
superrific
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Or you might be correct and have interpreted correctly. I would have to wait to the see the transcript.
None offered a defense of the EO to my knowledge, that's correct. And maybe Gorsuch was asking about the case at hand specifically, but surely the import was on the broader point.
It's possible that some Justices are thinking that they could avoid the issue by just affirming on the merits. But my sense is that the Justices don't want to punt this issue. They want to get it worked out, at least haltingly
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superrific
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As usual, Kav gives the most shallow reasoning available. "Do it as a class action" is not a solution to the problem. It's not remotely a solution to the problem. And his argument was, "nationwide injunctions are basically the same as class actions" which he apparently thinks is an argument in favor of class actions. It is not. If you think nationwide injunctions are dangerous, and class actions are the same, then class actions are dangerous and you're back at step 1.
I've never seen a justice more willing to paper over obvious deficiencies in their arguments with euphemistic labels. Thomas and Alito are open about their ratfuckery. Kav has a need to appeal reasonable to liberals (his family, maybe?), while doing unreasonable things. Does he think we're stupid? Maybe he does.
Anyway, the class action solution here is no solution and it would be 100% the wrong remedy.
I've never seen a justice more willing to paper over obvious deficiencies in their arguments with euphemistic labels. Thomas and Alito are open about their ratfuckery. Kav has a need to appeal reasonable to liberals (his family, maybe?), while doing unreasonable things. Does he think we're stupid? Maybe he does.
Anyway, the class action solution here is no solution and it would be 100% the wrong remedy.
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I listened to a portion of the hearing and honestly I thought a lot of the other Justices, including conservatives, seemed to acknowledge that a class action process would either be insufficient for matters requiring quick resolution or would effectively become the same basic process as district courts issuing nationwide stays. But we’ll see what happens.
superrific
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I'm reading the transcript now. Near the beginning here, it's not a good sign for the SG (i.e. for his long-term prospects as an appellate advocate) that he:
1. Doesn't know whether Massachusetts is in the First or Second Circuits; and
2. Thinks Judge Sutton, one of the most well-known judges in the country, sits on the Second Circuit (he's on the 6th).
1. Doesn't know whether Massachusetts is in the First or Second Circuits; and
2. Thinks Judge Sutton, one of the most well-known judges in the country, sits on the Second Circuit (he's on the 6th).
superrific
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1. Wow, that oral argument from the government was practically lifted off this board. Sauer = ZenMode, continuously making the same silly points over and over again. And like this message board, many of the Justices were debating whether to put the SG on super-ignore.
I've never seen the Supreme Court be so overtly uninterested in the counsel's bullshit. Justice after Justice asked a question, got some gaslighting in response, asked the question in a different way and got the same response, and realized they were talking to a brick wall. And at least three justices were very unhappy that Sauer wouldn't commit to following circuit precedent AND didn't seem to understand that it was a longstanding policy of DOJ to do so.
2. Sauer was terrible. That might be a little bit unfair given that this is a turd of a case, but only a little because he was way over his head. He didn't understand the import of several questions, leading to frustration from the Justices. He kept saying, over and over again, that it would be outrageous for the government to lose on the merits, that of course they will win after the appeals courts consider their very excellent arguments, etc. The merits are the weakest part of the case, and he kept going back to it when he didn't need to. And there was nobody who expressed even the slightest bit of doubt that he was wrong.
In the end, his position came down to arguing that the courts should use Rule 23 class certification instead of issuing "universal injunctions." And he was unprepared for the obvious follow-up: "what's the point? Who cares how you label it?" To say that the plaintiffs could always get a class would ask why it matters; but when he tried to say that it might make a difference in some cases, he got hammered.
3. Justice Jackson is so good. It's rare that I read a transcript and see an argument I can't predict. By that, I mean that as the argument is introduced, I can see where it's going (as opposed to being able to say in advance what the parties will argue, which generally I can't because I don't know all of law). Not so with Justice Jackson -- and it's good because I usually end up agreeing with her. She's got an uncanny ability to slice to the very heart of the matter, and she refuses to accept facile characterizations.
I've never seen the Supreme Court be so overtly uninterested in the counsel's bullshit. Justice after Justice asked a question, got some gaslighting in response, asked the question in a different way and got the same response, and realized they were talking to a brick wall. And at least three justices were very unhappy that Sauer wouldn't commit to following circuit precedent AND didn't seem to understand that it was a longstanding policy of DOJ to do so.
2. Sauer was terrible. That might be a little bit unfair given that this is a turd of a case, but only a little because he was way over his head. He didn't understand the import of several questions, leading to frustration from the Justices. He kept saying, over and over again, that it would be outrageous for the government to lose on the merits, that of course they will win after the appeals courts consider their very excellent arguments, etc. The merits are the weakest part of the case, and he kept going back to it when he didn't need to. And there was nobody who expressed even the slightest bit of doubt that he was wrong.
In the end, his position came down to arguing that the courts should use Rule 23 class certification instead of issuing "universal injunctions." And he was unprepared for the obvious follow-up: "what's the point? Who cares how you label it?" To say that the plaintiffs could always get a class would ask why it matters; but when he tried to say that it might make a difference in some cases, he got hammered.
3. Justice Jackson is so good. It's rare that I read a transcript and see an argument I can't predict. By that, I mean that as the argument is introduced, I can see where it's going (as opposed to being able to say in advance what the parties will argue, which generally I can't because I don't know all of law). Not so with Justice Jackson -- and it's good because I usually end up agreeing with her. She's got an uncanny ability to slice to the very heart of the matter, and she refuses to accept facile characterizations.
superrific
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Yeah, but they expressed technical concerns during the plaintiffs' arguments. Even if they are the same thing, they prefer to do it by the rules. Which is comical for someone like Kav to say, but he did.
I don't think the government wins this case. The Justices were completely tuned out during Sauer's rebuttal; I can't remember any time where there wasn't any question asked to the party during rebuttal. Of course, most parties don't begin their rebuttal saying something that has been said 20 times previously and that the court had already told him to can.
I don't think they go to the class action vehicle either.
I predict they ask for merits briefing on the underlying question and rule quickly on that, thus mooting this universal injunction issue and they will look elsewhere for a better vehicle. This ain't it.
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If it goes as you think-is the underlying question about injunctions? Or do you just think they will say the Exec Order is "not allowable " but not rule on the issue of a given Court's power to put injunctions on such things?
Or maybe I am completely off??? lol