A small point: Justice Alito’s citation to Kagan, at least, involves criticism of an Alito vote to take no action, rather than a vote to grant preliminary relief. His dissent strikes me as rather intemperate lashing out at critics, which unfortunately seems to be an increasingly common tone for him, even when he prevails.
I don't want to let Alito and Thomas off that easy. They both voted to throw us out in Summers and my declaration was exponentially better than the doctors. This should have been 9-0 on standing.
I would also point out the problem with corrupt judges is more than you let on. Look at Summers. Scalia had an objective to throw us out. When the facts did not support Scalia's desired outcome, he rewrote the facts. Here is a link to my first declaration. https://drive.google.com/file/d/10fZ-YLJCGKUENbzN-8CN8H3IjwRkrV-b/view?usp=sharing Look at Paragraph 14. It had what was required and Scalia, Alito and Thomas all ignored it. Here is a link to my second declaration. https://drive.google.com/file/d/10hxi8gTWjQg11lPuQCl5y75C9N4cWafl/view?usp=sharing It without question has what was required. Scalia pretended it did not exist so he could throw us out. Every judge or Justice I have experienced this with was a Republican.
I like your suggestion about random assignment everywhere. But I do not see the Courts doing it on their own. But the Republicans are the ones who packed the courts. The proposal is to unpack them. First Rs stole a nomination from Obama, they would not even consider Garland. Then Trump, who lost by millions of votes, appointed 3 extremists with an agenda to overturn Roe. Senators representing the vast majority of Americans voted against them. How is this not tyranny? Democracy did not give us a packed Supreme Court. Politics did. So politics of increasing the size of the court to get a court that reflects America instead of extremists in the Federalist Society is a reasonable option.
I appreciate your argument that the trial and appellate court judges are not typical of Trump appointees. But even three judges (with two on the Ct. of Appeals no less) that are willing to engage in this type of outcome determinative decision making completely divorced from fact and existing law are too many. And that two S Ct justices were willing to permit it, at least temporarily, is also troubling and undermines faith in the courts. And I think your kidding yourself if you think the district courts are going to institute reform to mitigate the problem of judge shopping.
Although not politically viable at the moment, we need to real judicial reform. We can start with legislation to eliminate single judge divisions and really narrowing the ability of a district court to issue nationwide injunctions. Frankly, this cuts both ways to limit policy driven suits by those on the left and the right. (I hesitate to call these arguments and judges “conservative” as they are actually radical and run contrary to actual conservative jurisprudence).
You’re too charitable about the jab that Alito took re whether the Biden administration would actually obey a court order. That kind of speculation has no place in a judicial opinion.
So, the case's premise was that saving as many ER patients' lives as possible was against the moral scruples of two male doctors. Rather than solving the problem by prohibiting them from serving in ERs, millions upon millions of women were to lose access to a drug they value and which is no more dangerous than Tylenol.
“Overall, I think this case should be viewed as a success, rather than a failure, of the judicial system.”
Too soon to tell. Let’s see how the 5th Circuit panel rules, and then how the conservatives on SCOTUS finally rule. Procedurally, could the 5th Circuit take it up en banc before it goes up to SCOTUS?
I agree that one extremist judge in a single district is a nuisance but no cause for panic. As you note, that’s why we have appellate courts. And I will concede that complaining about “Trumpist” judges may unjustly malign some competent judges. But respectfully, I think you’re too sanguine about the 5th Circuit. I think it’s dominated by extremists and it’s legitimacy is in tatters.
And the fact that Alito and Thomas dissented in such an obvious case is appalling but not surprising. It’s a moot point for the foreseeable future, but if the Dems ever achieve the ability to pack the Court, I see no moral or political reason why they shouldn’t.
"Impeachment is reserved for judges who have corrupted their office"
...And you wouldn't call this lawless decision "corruption of office"? To what degree must a decision be lawless or absurd before it's time to review the ability of the judge who issued it?
I'm, as usual, very badly confused by people who want to present the judiciary as though everything was okay and the system is working as intended. I am extremely confused as to how you see this as a success of the legal system if a lawsuit that shouldn't have stood a snowball's chance in hell made it all the way to the supreme court before it was stopped.
And it's not a hard case, either! Compare this to infamous cases like Citizens United or Shelby County v. Holder. In cases like those, you could at least make the argument that the justices were validly interpreting the law, even if their interpretation was weird or cruel or disingenuous. But this? No matter how you slice it, these judges directly went against basic components of the law in their decisions. That's not okay!
My takeaway here is not "things are fine", it's "at least three judges should be stripped of their positions given their absurd misconduct". These are not impartial arbiters of the law; they are right-wing crusaders willing to overlook all evidence and jurisprudence to pursue a result they politically favor - they shouldn't be allowed to continue being judges after that.
"Moreover, this change would be easy to institute. It would not require an Act of Congress. The Northern District of Texas, and other federal district courts elsewhere in the country, could simply amend their local rules to provide that lawsuits filed in the district are randomly assigned to judges within that district."
The problem with this change is that the republicans who run the deeply red district have no interest in doing anything like this. Why would they? It's advantageous for them to have wildly biased judges in their pockets.
It feels like there's some willful ignorance of the ongoing right-wing political project to stack the judiciary with Federalist Society members here. They aren't doing it just because they believe that those judges will give the most sensible, lawful takes - they're doing it because FedSoc judges have an agenda that the right agrees with and will offer rulings that benefit them. This is important context for what's going on! Kacsmaryk isn't some lone wacko, he's the exact kind of judge that republicans have been appointing to our court systems for years, for the explicit purpose of providing rulings like this. The two judges who upheld that ruling at the 5th District Court are cut from the same cloth. This is not an accident, it has been getting worse, and it will not get better unless steps are taken to address it.
What did surprise me was Alito's dissent. I've long defended the conservative jurists to other on the left as smart people trying hard to figure out the law under the universal threat of motivated/biased reasoning. But Alito's dissent is what I'd expect from some angry MAGA guy on reddit -- he's angry about something so throws out any argument that sounds like it supports his conclusion without giving them serious thought.
I mean really, he wants us to believe there is no likelihood of irreperable injury? If the stay isn't going to actually effect anyone why is he so worked up about granting it? And the same guy who worked so so hard to come up with an excuse to say a 0 dollar tax created an injury in fact can't work out why making mifeprestone much harder to get for a couple months might cause irreperable injury?
Hell, he seems more interested in trying to score points on Sotomayor than he is in figuring out what *his* views on the law demand in this case!
"[Justice Alito] opined that the lower courts’ orders would not cause irreparable harm because the FDA could simply decline to enforce federal law, so nothing would change. I am not persuaded by this reasoning, but criticizing it seems uncharitable."
I have to take issue with you, on this--especially considering this came from Justice Alito.
For all you kids, back in the day, the limits on the power of federal courts were illustrated in Worcester v. Georgia, when following the SCt's decision that the federal gov't could not expel the Cherokee Nations from their lands. President Jackson is supposed to have said (though he later denied it) "Chief Justice Marshall has made his decision; let him enforce it."
My question is, what does it say about the respect for, and the authority of, the federal courts, if a sitting Justice can argue there is no harm in refusing to stay a patently frivolous (and genuinely dangerous) ruling, because no one's going to obey it anyway?
Is Justice Alito saying that not only are federal courts paper tigers--they should be treated that way? That's okay, because no harm, no foul?
Justice Alito's comments are especially galling to me, because Justice Alito (during the oral argument in Glossip v. Gross) made the crack about “guerilla war against the death penalty." The Justice accused death penalty opponents of doing something underhanded, by letting the European pharmaceutical companies know their products were being used for the death penalty--something those companies were unaware of, and were philosophically opposed to.
We have a sitting SCt Justice, who apparently believes categorical opposition to the death penalty is somehow unprincipled--and taking private actions to block the sham that passes for lethal injection in the US is somehow untoward. Whether the current drug "cocktail" violates the Eighth Amendment or not, that's not the point. The point is, death penalty opponents are free to do what they feel is right to oppose it--even if it's "guerilla warfare"--despite Justice Alito's assertions.....
My point here, Justice Alito has no qualms baselessly condemning legal actions from the bench ("don't do legal activity"); and justifying arguably wildly inconsistent and incoherent decisions--because no one's gonna follow it anyway ("don't worry about doing illegal activity--we don't care, so why should you?").
I find it "uncharitable" not to criticize that reasoning.... And I come to this blog, specifically for that criticism.
If memory serves me, when Justice O’Connor was being confirmed she was criticized for lack of constitutional experience in her District court. It was explained that Federal judges specialize in various fields and cases were brought forth to a judge based on their field of expertise. Some district judges handled land use, etc. while others had constitutional matters. Why can’t type of system be enacted, or codified, here?
A small point: Justice Alito’s citation to Kagan, at least, involves criticism of an Alito vote to take no action, rather than a vote to grant preliminary relief. His dissent strikes me as rather intemperate lashing out at critics, which unfortunately seems to be an increasingly common tone for him, even when he prevails.
I don't want to let Alito and Thomas off that easy. They both voted to throw us out in Summers and my declaration was exponentially better than the doctors. This should have been 9-0 on standing.
I would also point out the problem with corrupt judges is more than you let on. Look at Summers. Scalia had an objective to throw us out. When the facts did not support Scalia's desired outcome, he rewrote the facts. Here is a link to my first declaration. https://drive.google.com/file/d/10fZ-YLJCGKUENbzN-8CN8H3IjwRkrV-b/view?usp=sharing Look at Paragraph 14. It had what was required and Scalia, Alito and Thomas all ignored it. Here is a link to my second declaration. https://drive.google.com/file/d/10hxi8gTWjQg11lPuQCl5y75C9N4cWafl/view?usp=sharing It without question has what was required. Scalia pretended it did not exist so he could throw us out. Every judge or Justice I have experienced this with was a Republican.
I like your suggestion about random assignment everywhere. But I do not see the Courts doing it on their own. But the Republicans are the ones who packed the courts. The proposal is to unpack them. First Rs stole a nomination from Obama, they would not even consider Garland. Then Trump, who lost by millions of votes, appointed 3 extremists with an agenda to overturn Roe. Senators representing the vast majority of Americans voted against them. How is this not tyranny? Democracy did not give us a packed Supreme Court. Politics did. So politics of increasing the size of the court to get a court that reflects America instead of extremists in the Federalist Society is a reasonable option.
I appreciate your argument that the trial and appellate court judges are not typical of Trump appointees. But even three judges (with two on the Ct. of Appeals no less) that are willing to engage in this type of outcome determinative decision making completely divorced from fact and existing law are too many. And that two S Ct justices were willing to permit it, at least temporarily, is also troubling and undermines faith in the courts. And I think your kidding yourself if you think the district courts are going to institute reform to mitigate the problem of judge shopping.
Although not politically viable at the moment, we need to real judicial reform. We can start with legislation to eliminate single judge divisions and really narrowing the ability of a district court to issue nationwide injunctions. Frankly, this cuts both ways to limit policy driven suits by those on the left and the right. (I hesitate to call these arguments and judges “conservative” as they are actually radical and run contrary to actual conservative jurisprudence).
You’re too charitable about the jab that Alito took re whether the Biden administration would actually obey a court order. That kind of speculation has no place in a judicial opinion.
So, the case's premise was that saving as many ER patients' lives as possible was against the moral scruples of two male doctors. Rather than solving the problem by prohibiting them from serving in ERs, millions upon millions of women were to lose access to a drug they value and which is no more dangerous than Tylenol.
“Overall, I think this case should be viewed as a success, rather than a failure, of the judicial system.”
Too soon to tell. Let’s see how the 5th Circuit panel rules, and then how the conservatives on SCOTUS finally rule. Procedurally, could the 5th Circuit take it up en banc before it goes up to SCOTUS?
I agree that one extremist judge in a single district is a nuisance but no cause for panic. As you note, that’s why we have appellate courts. And I will concede that complaining about “Trumpist” judges may unjustly malign some competent judges. But respectfully, I think you’re too sanguine about the 5th Circuit. I think it’s dominated by extremists and it’s legitimacy is in tatters.
And the fact that Alito and Thomas dissented in such an obvious case is appalling but not surprising. It’s a moot point for the foreseeable future, but if the Dems ever achieve the ability to pack the Court, I see no moral or political reason why they shouldn’t.
"Impeachment is reserved for judges who have corrupted their office"
...And you wouldn't call this lawless decision "corruption of office"? To what degree must a decision be lawless or absurd before it's time to review the ability of the judge who issued it?
I'm, as usual, very badly confused by people who want to present the judiciary as though everything was okay and the system is working as intended. I am extremely confused as to how you see this as a success of the legal system if a lawsuit that shouldn't have stood a snowball's chance in hell made it all the way to the supreme court before it was stopped.
And it's not a hard case, either! Compare this to infamous cases like Citizens United or Shelby County v. Holder. In cases like those, you could at least make the argument that the justices were validly interpreting the law, even if their interpretation was weird or cruel or disingenuous. But this? No matter how you slice it, these judges directly went against basic components of the law in their decisions. That's not okay!
My takeaway here is not "things are fine", it's "at least three judges should be stripped of their positions given their absurd misconduct". These are not impartial arbiters of the law; they are right-wing crusaders willing to overlook all evidence and jurisprudence to pursue a result they politically favor - they shouldn't be allowed to continue being judges after that.
"Moreover, this change would be easy to institute. It would not require an Act of Congress. The Northern District of Texas, and other federal district courts elsewhere in the country, could simply amend their local rules to provide that lawsuits filed in the district are randomly assigned to judges within that district."
The problem with this change is that the republicans who run the deeply red district have no interest in doing anything like this. Why would they? It's advantageous for them to have wildly biased judges in their pockets.
It feels like there's some willful ignorance of the ongoing right-wing political project to stack the judiciary with Federalist Society members here. They aren't doing it just because they believe that those judges will give the most sensible, lawful takes - they're doing it because FedSoc judges have an agenda that the right agrees with and will offer rulings that benefit them. This is important context for what's going on! Kacsmaryk isn't some lone wacko, he's the exact kind of judge that republicans have been appointing to our court systems for years, for the explicit purpose of providing rulings like this. The two judges who upheld that ruling at the 5th District Court are cut from the same cloth. This is not an accident, it has been getting worse, and it will not get better unless steps are taken to address it.
What did surprise me was Alito's dissent. I've long defended the conservative jurists to other on the left as smart people trying hard to figure out the law under the universal threat of motivated/biased reasoning. But Alito's dissent is what I'd expect from some angry MAGA guy on reddit -- he's angry about something so throws out any argument that sounds like it supports his conclusion without giving them serious thought.
I mean really, he wants us to believe there is no likelihood of irreperable injury? If the stay isn't going to actually effect anyone why is he so worked up about granting it? And the same guy who worked so so hard to come up with an excuse to say a 0 dollar tax created an injury in fact can't work out why making mifeprestone much harder to get for a couple months might cause irreperable injury?
Hell, he seems more interested in trying to score points on Sotomayor than he is in figuring out what *his* views on the law demand in this case!
"[Justice Alito] opined that the lower courts’ orders would not cause irreparable harm because the FDA could simply decline to enforce federal law, so nothing would change. I am not persuaded by this reasoning, but criticizing it seems uncharitable."
I have to take issue with you, on this--especially considering this came from Justice Alito.
For all you kids, back in the day, the limits on the power of federal courts were illustrated in Worcester v. Georgia, when following the SCt's decision that the federal gov't could not expel the Cherokee Nations from their lands. President Jackson is supposed to have said (though he later denied it) "Chief Justice Marshall has made his decision; let him enforce it."
My question is, what does it say about the respect for, and the authority of, the federal courts, if a sitting Justice can argue there is no harm in refusing to stay a patently frivolous (and genuinely dangerous) ruling, because no one's going to obey it anyway?
Is Justice Alito saying that not only are federal courts paper tigers--they should be treated that way? That's okay, because no harm, no foul?
Justice Alito's comments are especially galling to me, because Justice Alito (during the oral argument in Glossip v. Gross) made the crack about “guerilla war against the death penalty." The Justice accused death penalty opponents of doing something underhanded, by letting the European pharmaceutical companies know their products were being used for the death penalty--something those companies were unaware of, and were philosophically opposed to.
We have a sitting SCt Justice, who apparently believes categorical opposition to the death penalty is somehow unprincipled--and taking private actions to block the sham that passes for lethal injection in the US is somehow untoward. Whether the current drug "cocktail" violates the Eighth Amendment or not, that's not the point. The point is, death penalty opponents are free to do what they feel is right to oppose it--even if it's "guerilla warfare"--despite Justice Alito's assertions.....
My point here, Justice Alito has no qualms baselessly condemning legal actions from the bench ("don't do legal activity"); and justifying arguably wildly inconsistent and incoherent decisions--because no one's gonna follow it anyway ("don't worry about doing illegal activity--we don't care, so why should you?").
I find it "uncharitable" not to criticize that reasoning.... And I come to this blog, specifically for that criticism.
*you’re
If memory serves me, when Justice O’Connor was being confirmed she was criticized for lack of constitutional experience in her District court. It was explained that Federal judges specialize in various fields and cases were brought forth to a judge based on their field of expertise. Some district judges handled land use, etc. while others had constitutional matters. Why can’t type of system be enacted, or codified, here?
A well written, even handed summation of the case so far. Thank you.