3 ms·

Imagine you're a SC judge in this case, and you have to craft a judgement which allows universal injunctions in incredibly narrow and highly specific cases, whi

Imagine you're a SC judge in this case, and you have to craft a judgement which allows universal injunctions in incredibly narrow and highly specific cases, whilst ruling out almost all of them. And that the area of law you're dealing with is a puddle of mud (equity). You can either try to do this and roll the dice again on letting district courts interpret this judgement, or just say, basically no -- if you want to do this you have to come to us (or go via one of the other mechanisms). Given there are ~25 recent cases of this in total, its not a very significant number -- but the effects are extremely significant. They chose the lesser of two evils, and in this lesser world, basically everything is still fine. You can still get the right outcomes. This is the actual job of the court. There is no right answer. There is only what judgement they can write and what effects it will have, and whether those are the most consistent with the spirit of the constutional order (or statutory order) that has been setup. its very common for them to rule, "in cases of doubt, just get congress to pass a law allowing this to happen" They very often actually do amend laws due to SC rulings. Many laws are passed every year, and its very common to see amendements explicitly reply to tell the SC to undo its actions in cases where they've asked congress to be clear. Just because I think there's a read of "complete equitable remedy" in this case which plausibly allows a district court to issue a UI, does not mean that the SC wasn't right to set a standard which precludes it. Or that asking congress to make this possible isn't the right position for the court to take. You have to remember that congress is the democratic legislative body, not the courts. Having district courts intrude on US-wide implementation of congress' laws (via the executive) should really require congress to authorise that. And in any case, they have in the APA -- and the SC can still do it.

joshuamorton 1y ago
> Imagine you're a SC judge in this case, and you have to craft a judgement which allows universal injunctions in incredibly narrow and highly specific cases, whilst ruling out almost all of them. And that the area of law you're dealing with is a puddle of mud (equity). You can of course, also not take up the issue on this case. I can't find the article offhand, but I believe Steve Vladeck made this point that the SC has passed over a number of egregiously bad universal injunctions, handling them entirely on the shadow docket, and decided to grant full cert and a hearing on this case. You can maybe argue that that's good in the sense that they're making a strong stand that even in the best example this is disallowed, which is clearer precedent. But also they could have picked a "better" case in the sense of it being a clearer misuse, and used that as the vehicle for the same ruling. Using a Kacsmaryk injunction for the same ruling sends a very different message than this case.
- mjburgess 1y ago
  I think there's a clear 7-2 against this EO when its content will be considered. I do not think a lot of them enjoyed making this their stand against UIs; and you can hear in orals robert's frustration with the situation and various desires across the panel to find some way to thread the needle. I dont think any of the 7 trusted the goverment as far as they could throw them. This isn't a pro-trump court, nor one that believes any of this executive behaviour is credible. I think they were not at all pleased with how the case had been brought to them. It's clear K's concurrence was written as a playbook for how to get to "the right outcome" in this case, and it will be followed. I suspect if that playbook wasnt available, they would have had a much harder time with getting to a judgement.
  - joshuamorton 1y ago
    I actually wouldn't be surprised if the case is stronger than 7-2 on the merits, which makes this an even weirder vehicle: why would the conservative justices pick this case as a vehicle for this decision when there are, as you say, much clearer abuses of national injunctions? > I dont think any of the 7 trusted the goverment as far as they could throw them. This isn't a pro-trump court, nor one that believes any of this executive behaviour is credible. I think that's untrue on is face. Either that or the remaining conservative members have a commitment to allowed an untrustworthy executive to commit blatantly illegal acts on a temporary basis as long as they will be eventually addressed.

joshuamorton 1y ago

> Imagine you're a SC judge in this case, and you have to craft a judgement which allows universal injunctions in incredibly narrow and highly specific cases, whilst ruling out almost all of them. And that the area of law you're dealing with is a puddle of mud (equity). You can of course, also not take up the issue on this case. I can't find the article offhand, but I believe Steve Vladeck made this point that the SC has passed over a number of egregiously bad universal injunctions, handling them entirely on the shadow docket, and decided to grant full cert and a hearing on this case. You can maybe argue that that's good in the sense that they're making a strong stand that even in the best example this is disallowed, which is clearer precedent. But also they could have picked a "better" case in the sense of it being a clearer misuse, and used that as the vehicle for the same ruling. Using a Kacsmaryk injunction for the same ruling sends a very different message than this case.

mjburgess 1y ago
I think there's a clear 7-2 against this EO when its content will be considered. I do not think a lot of them enjoyed making this their stand against UIs; and you can hear in orals robert's frustration with the situation and various desires across the panel to find some way to thread the needle. I dont think any of the 7 trusted the goverment as far as they could throw them. This isn't a pro-trump court, nor one that believes any of this executive behaviour is credible. I think they were not at all pleased with how the case had been brought to them. It's clear K's concurrence was written as a playbook for how to get to "the right outcome" in this case, and it will be followed. I suspect if that playbook wasnt available, they would have had a much harder time with getting to a judgement.
- joshuamorton 1y ago
  I actually wouldn't be surprised if the case is stronger than 7-2 on the merits, which makes this an even weirder vehicle: why would the conservative justices pick this case as a vehicle for this decision when there are, as you say, much clearer abuses of national injunctions? > I dont think any of the 7 trusted the goverment as far as they could throw them. This isn't a pro-trump court, nor one that believes any of this executive behaviour is credible. I think that's untrue on is face. Either that or the remaining conservative members have a commitment to allowed an untrustworthy executive to commit blatantly illegal acts on a temporary basis as long as they will be eventually addressed.