Tag Archives: courts

“Career-Defining”

Posted on by
Reply

The headline lays it out:

Chief Justice Roberts Faces Career-Defining Decision on Trump

The WSJ‘s news writer centered his headline claim on the current Supreme Court case that concerns the authority a President has (or has not) to unilaterally adjust or apply de novo tariffs. This is certainly a major case with serious implications and outcomes. Career-defining, though? Calling it that is nothing but journalistic arrogance. This guy is not the definer of “career-defining;” he’s just one man with an opinion.

Career-defining certainly would be a momentous move with long-lasting effects.

Here’s another momentous move by Roberts, one from a few years ago, and that still is reverberating. That ruling, in which Chief Justice John Roberts rewrote the Affordable Care Act to include a tax aspect that Congress had explicitly considered and just as explicitly rejected, was every bit as momentous as anything the Roberts Court might decide regarding Trump’s tariffs. Career-defining? At least as much as the tariff case. That’s my one-man opinion.

A Couple of Election Law Thoughts

Posted on by
Reply

I have some, on occasion, and this is one of those occasions. The Supreme Court is considering taking up a case regarding whether a State may (not can) count absentee ballots received after voting day. The particular case involves Louisiana’s law that allows such ballots to be counted if received within five days after voting day; the 5th Circuit court said nope, absentee ballots must be received by voting day to be countable.

Those defending the law appealed to the Supremes, making this argument among others:

Adopting that ruling would require scrapping election laws in about 30 states, lawyers for Mississippi told the court.
“The decision below thus invites nationwide litigation against laws in most States—risking chaos in the next federal elections, particularly given the tendency of election law claims to spur last-minute lawsuits,” they said.

That a Supreme Court ruling upholding the appellate court (the only correct ruling IMNSHO) would invalidate election laws broadly is wholly irrelevant. All that matters here is what our Constitution requires and what statutes that are themselves within the bounds of our Constitution say. The convenience of government is distinctly unimportant.

The second beef, that concern about last-minute lawsuits filed just before an election, is legitimate, but it’s easily handled. States can enact laws (so can the Federal government under its Article I, Section 4 authority) that bar courts hearing lawsuits occurring within [six months] of an election from issuing injunctions or temporary restraining orders that alter the status quo and that bar court rulings that are handed down within those same [six months] from having effect until after the next occurring election.

Lower Court Obstructionism

Posted on by
Reply

In a legal environment in which Federal district court judges routinely block President Donald Trump’s (R) initiatives and the Supreme Court, via Trump emergency appeals, overrule those judges (and the occasional appellate court ruling) more often than those lower court judges deem appropriate, we’re seeing increasing whining from those lower court judges: they’re getting quite cross over not being listened to, all the while pretending not to understand the Supreme Court’s stays of these lower court blocks while the underlying case works its way through the legal system. As The Wall Street Journal‘s news writer put it,

The court, has given Trump much of what he has asked for so far, but the brevity of its orders has flummoxed judges who say there is no way to interpret them.

This is the measure of the lower courts’ defiance of the Supreme Court. The Court lifts the stays explicitly to let the underlying cases concerning the Trump initiatives proceed pending a final judgment. Often, appellate courts and district court judges, in lifting a stay or HIAing one, will say they’re doing so because they think the relevant party to the litigation is likely to prevail in the underlying case. The Supreme Court cannot say such things without prejudicing its eventual ruling in the case while it’s before those lower courts. The Court does say, often but not always, that it’s staying a case while the case wends its way. Even in those cases where the Court does not say, though, that much is clear to anyone reading with objective eyes.

These district (and appellate) judges know that.

Here’s an example of lower court defiance in the judge’s attempts at obstruction:

“Whatever their own views, judges are duty-bound to respect the hierarchy of the federal court system,” Gorsuch wrote.
US District Judge Allison Burroughs in Massachusetts fired back at Gorsuch a couple of weeks later when she ruled the administration’s cuts to Harvard’s research funding were unconstitutional. In a footnote, Burroughs said it was “unhelpful and unnecessary” to criticize judges for defying the Supreme Court “when they are working to find the right answer in a rapidly evolving doctrinal landscape, where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.”

What part of set that precedent aside is unclear to this judge? If it appears to her to be set aside, then from her perspective it is set aside. Is Burroughs really insisting she’s unable to follow a simple ruling without having in hand a long, detailed dissertation on why the ruling exists and why she must follow it? Would that ruling need to be written in words of one syllable or less? If so, she needs to find another line of work where her bosses have the time and inclination to hold her hand every step of the way.

On the other hand, it sounds like this judge is letting her disdain for Trump lead her to disrespect for and defiance of the Supreme Court. In that case, too, she needs to find another line of work, maybe with Bill Kristol.

Judicial Insubordination

Posted on by
Reply

Elizabeth Price Foley and Mark Pinkert are on the right track. They’ve laid out the problem concisely in their Thursday Wall Street Journal op-ed:

Now some lower-court judges have become brazenly defiant, not only of the administration’s agenda but also of high court opinions. In response, the justices have had to remind lower courts of their constitutional role and chastise them for resisting court precedent. But the resistance continues, threatening to erode the judiciary’s ability to function.

And

An anonymous group of 12 lower-court judges took their grievances to NBC News, telling a reporter that the high court’s rulings are “validating the Trump administration’s criticisms” of lower courts. One said “it’s inexcusable” that the justices don’t “have our backs.” Four judges opined that the justices, especially Chief Justice John Roberts, “should do more to defend the courts,” in the reporter’s words. Another judge complained that he and his colleagues have been “thrown under the bus.” But even an Obama appointee admitted that “the whole ‘Trump derangement syndrome’ is a real issue” and that lower-court judges “are sometimes forgetting to stay in their lane.”

They then propose a solution:

They should avoid writing opinions that contain obvious ambiguities like the one in Fair Admissions. They should also clear away the underbrush of nonoriginalist constitutional law, overruling such precedents rather than narrowing, distinguishing or calling them into doubt. … And all the hullabaloo over the president’s authority to fire executive-branch officers would be quieted if the court flatly overruled Humphrey’s Executor v US rather than merely chip away at it.
The court has a duty to provide doctrinal clarity, especially on constitutional law.

Those certainly are good ideas, at least from this textualist’s perspective. Clarity in bold, declarative sentences written in exclusively plain terms, would good, whether textualist or activist. More is needed though.

The Supreme Court needs lay aside its hesitancy and swat down, firmly, recalcitrant judges, especially (but not only) those of the district courts. The Supreme Court, over the course of its admonishment-containing overrulings, need to remove the recalcitrant judge from the case altogether, an action the Court has done, but up to now all too rarely. The Court also needs, rarely but at a non-zero rate, to rule that a particularly insubordinate judge will have all of his rulings automatically stayed until reviewed by appellate courts, including the Supreme Court, if necessary.

These are drastic steps, to be sure, but they’re necessary to emphasize that Supreme Court rulings are binding on the lower courts, especially at the district level; to increase the efficiency and speed of the courts and especially of the appellate process; and to begin to restore the public’s confidence in our court system.

“They Don’t Have Our Backs”

Posted on by
Reply

That’s the whine of some judges who are criticizing—carefully anonymously, mind you—the Supreme Court for the Court’s emergency rulings overturning lower court rulings as the Justices agree with the Trump administration arguments.

A group of anonymous federal judges is criticizing the Supreme Court for overturning lower court rulings and siding with President Donald Trump’s administration with little to no explanation, NBC News reported Thursday.

And

…judges argued the Supreme Court should offer more explanation when overturning such decisions, saying emergency rulings in such cases imply poor work on the part of lower court judges.

It implies no such thing, of course. This is just an example of the pseudo-logic of these judges, judges who misapply the statutes before them, choosing to rule based on what they wished the statutes said rather than what they actually say. Overturning decisions without explanation in an emergency ruling plainly means nothing more or less than that the Court chose not to explain within the time constraints of an emergency ruling. It certainly applies, or even implies, nothing regarding any motive for the ruling,nor does it even come close to siding with President Donald Trump’s administration, just that the Court agreed with the administration’s arguments. These judges also are carefully ignoring the fact that the Supreme Court’s emergency rulings are merely temporary, overruling lower court temporary restraining orders and temporary injunctions as the underlying cases make their way through the courts.

“It is inexcusable,” one judge said of the Supreme Court. “They don’t have our backs.”

This is a judge who doesn’t even understand his oath of office. It’s not the Supreme Court’s job to backstop lower court judges. It’s the Supreme Court’s job—it’s the job of all of those lower court judges, also—to apply the law as it is written. It’s the job of appellate court judges, especially of Supreme Court Justices, to correct lower court mistakes in the application of the law—statute and Constitution—at least as much as it is to uphold a lower court’s ruling when that ruling applies the law as written.

Separately, “carefully anonymous:” these judges don’t even have the courage of their convictions. They just want to yap from the safety of their respective private porches.