Category Archives: Courts

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.

A Justice…Misunderstands

Posted on by
Reply

Justice Ketanji Br own Jackson dissented strenuously with a Supreme Court ruling that, in part, upheld the Trump Administration’s request for an emergency stay of a lower court’s blocking of NIH from canceling $783 million worth of grants.

The money part of the woman’s (dare I use that term on a person who doesn’t know what a woman is?) dissent:

the high court’s way of preserving the “mirage of judicial review while eliminating its purpose: to remedy harms.”

No. Not at all. The purpose of judicial review is critically—and solely—to ensure that the action before it, along with the statute(s) involved, follow the text of our Constitution and the text of those statutes. Nothing more and nothing less.

But the woman wasn’t done with shredding (to use the in-vogue term) “judicial review” [emphasis added]:

It would have been much simpler for the Court to just announce that, regardless of the plain text of the APA or what Congress intended to authorize, we no longer accept that the Government’s grant-termination decisions are subject to arbitrary-and-capricious review or that vacatur of an arbitrary grant-termination decision is an available remedy.

The greatest harm that is in play here is ruling on the basis of a particular judge’s or Justice’s personal definition of “harm.” Yet, this is exactly what Jackson presumes to attempt with her setting aside the petty text of a statute from which her august self demurs.

The Supreme Court’s ruling, including Jackson’s dissent can be read here.

“Materiality”

Posted on by
Reply

Texas voting law requires voters voting by mail-in ballots to verify identity via a state ID number or the last four digits of a Social Security number (SSN4). A Federal district judge ruled in 2023 against the law using the fictive logic that

It is self-evident that a voter’s ID number is not material….

Judge James Ho, writing for a unanimous 5th Circuit, articulated how clearly the appellate court saw through that district judge’s…argument.

The number-matching requirements are obviously designed to confirm that every mail-in voter is indeed who he claims he is. And that is plainly material to determining whether an individual is qualified to vote.

He expanded on that [citations omitted]:

The number-matching requirements are obviously designed to confirm that every mail-in voter is indeed who he claims he is. And that is plainly material to determining whether an individual is qualified to vote.
So there is no “disconnect between the State’s announced interests and the statute enacted.” And the ID number requirement “meaningfully corresponds” to the State’s legitimate interests in preventing the scourge of mail-in ballot fraud.

It seems to me the district judge slept through his high school logic class, and his law school provided no training in logic at all.

The 5th Circuit ruling can be read here.

Should be a No-Brainer

Posted on by
1

As The Wall Street Journal‘s editors put it,

Get ready for what could be another landmark Supreme Court case. On Friday the Justices agreed to consider whether majority-minority Congressional districts drawn to comply with the Voting Rights Act are compatible with the Constitution’s equal protection guarantee.

The Court has asked the litigants in Louisiana v Callais to assess whether creation of a second majority-minority Congressional district violates the Fourteenth or Fifteenth Amendments.

This is long overdue, as states are now caught in a vice. If they weigh race too heavily, they can run afoul of the Equal Protection Clause. But if they ignore race, they can be sued for violating Section 2. Louisiana’s House map is a prime example.

It is long overdue, from as far back as 1965 when the Civil Rights Act was first enacted. The relevant clause of the 14th Amendment is in its first Article:

No State shall…deny to any person within its jurisdiction the equal protection of the laws.

The 15th Amendment is even more explicit:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Favoring one group of Americans over another—which especially in the zero sum game of voting favors one group at the direct expense of another—denies both groups equal protection of the laws by that favoring. Tailored to the right to vote, creating a voting district to favor one group on the basis of race or color explicitly abridges the voting rights of those citizens in that district who are not members of the favored race or color while simultaneously exaggerating the voting rights of those who are members.

This should be a no-brainer: Louisiana’s voting districts, drawn as they are on the basis of race, are unconstitutional, and the Voting Rights Act, which mandates such favoritism is itself unconstitutional. Any use of race, however seemingly slight, to create a district or any policy that considers race is unconstitutional.

The Supreme Court should listen to and heed its recently prior ruling that any consideration of race in college/university admissions is unconstitutional.