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).
I have been on the side of seeking nationwide relief for environmental reasons. Summers, which is the main standing case at issue, was about my standing declaration. We were wanting to challenge Forest Service regulations and get a nationwide injunction/ruling that the regulations were illegal. We were looking for a timber sale to make an as applied challenge to the rule. We choose that timber sale because it was in the 9th Circuit.
But I do agree with you that something needs to be done. Some have suggested requiring suits for nationwide injunctions to be filed in the DC Circuit. There is a lot of merit to that. But the biggest problem is small grassroots groups may not have the resources to file in DC. The travel costs can be too much to overcome. What did you have in mind?
First, although more progressively minded, I think policy minded actions are problematic for reasons that are apparent in this case. I do think it makes sense that any case that seeks a national injunction against the Federal Govt, especially concerning regulations, should be brought in DC. If someone is seeking damages or injunction with respect to specific actions and litigants are different.
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.
Exactly right. Those docs can make a choice not to work in an er if so troubled by the prospect of helping a woman in need. Makes me think of book bans that are occurring: if a parent doesn’t want their kids exposed to a book, then they can censor their own kid. They shouldn’t have the right to censor other people’s kids, esp when the books being banned are award winning books of exceptional writing.
"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!
Doubt it. Thomas is less compromised (in the sense of being bought and paid for) than just got arrogant and didn't think he needed to pay attention to rules like that and the same arrogance is likely to mean Alito's not squirming. If Thomas wanted to sell his votes he'd be getting billions not some pj flights and chump change for him.
But I really think the Thomas situation is the wrong place to look. It's this perfectly legal (modulo Alito's leak) crap with Schneck and his friends creating a cabal that invites the conservative justices to exclusive country clubs and makes big donations to the SCHS (for justices flattery of their legacy is more tempting than cash for them) in a way that basically trades social face time for exclusive invites and honors that's much more concerning. https://www.brennancenter.org/our-work/analysis-opinion/real-supreme-court-news-isnt-alleged-alito-leak
Even justices will have friends and while Crow's jet may have helped him make friends with Thomas I believe they are real friends and his influence is via that bond. OTOH this crap Schneck was running basically auctions off the chance to pitch your views to a justice (and maybe get a dinner invite where they'll get tipsy and leak a case). That's much more of a real threat imo. I don't think it's an accident that it wasn't Crow but part of the Schneck cabal who got the only documented modern SCOTUS leak.
It's just that it's hard to address with ethics rules. Ok, maybe the justice has to pay their own way at these fancy country club dinners. But w/ net worths all in the 20-40million they don't even notice. The real valuable commodity is the access to exclusive clubs you can't purchase and the promise of fawning coverage by the supreme court historical society.
While the friendship between Thomas and Crow is almost certainly genuine, it’s naive to discount the possibility that it is also part of a longstanding influence operation. There is probably less difference between Rev. Schenck and Mr. Crow than you suggest. Consider Mr. Crow’s trusteeship for the SCHC—he’s practically working out of Schenck’s playbook.
Thomas, of course, doesn’t think he’s selling his votes, and he almost certainly is not, in that straightforward sense. That’s what makes it an influence operation. The goal was to surround Thomas with ideologically like-minded folks in especially pleasant settings, “to shore up the resolve of” the targeted justices, as Schenck said in his congressional testimony, and to soften them up to arguments presented in amicus briefs from AEI and the like.
And I don’t think we have to choose between Thomas anger and arrogance—he’s been angry since his confirmation hearing, and believing he is not bound by the rules that apply to everyone else is of a piece with that.
I always kinda felt that way (and been reading less opinions recently) but I know how tempting it is to accuse your opponents of that (and I hate Alito's votes most of all the justices) so I always doubted that conclusion.
This time the clerks didn't have the time to clean up the cranky uncle energy and it was just too obvious to ignore even if I want to give ppl the benefit of the doubt.
"[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.
I must agree that Supreme Court Justices would not seem to merit a high place on the list of those with a strong claim for charity. Steve Vladeck has a fully charity-free take on this remarkable Alito argument in his substack blog, for those interested.
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?
Your memory disserves you in the particulars, but some of the broader issues are worth considering. Justice O'Connor was a state judge before her Supreme Court appointment. It is possible, though, that she received questions about her lack of exposure to federal constitutional law. It's also possible that the Arizona state system has specialized courts -- some states do and others do not. Federal district courts, however, are not really specialized that way. Some people have advocated for specialization in one form or another in the federal courts. The idea has its pros and cons. But ultimately, even if that kind of system were enacted, it would be hard to prevent every single constitutional law judge from ever issuing an outlier opinion.
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).
I have been on the side of seeking nationwide relief for environmental reasons. Summers, which is the main standing case at issue, was about my standing declaration. We were wanting to challenge Forest Service regulations and get a nationwide injunction/ruling that the regulations were illegal. We were looking for a timber sale to make an as applied challenge to the rule. We choose that timber sale because it was in the 9th Circuit.
But I do agree with you that something needs to be done. Some have suggested requiring suits for nationwide injunctions to be filed in the DC Circuit. There is a lot of merit to that. But the biggest problem is small grassroots groups may not have the resources to file in DC. The travel costs can be too much to overcome. What did you have in mind?
First, although more progressively minded, I think policy minded actions are problematic for reasons that are apparent in this case. I do think it makes sense that any case that seeks a national injunction against the Federal Govt, especially concerning regulations, should be brought in DC. If someone is seeking damages or injunction with respect to specific actions and litigants are different.
Sorry, need to edit better before sending.
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.
Calling it a judicial opinion is conceding that Alito is somehow a judge. I think he has shown us how little he cares for the law.
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.
Exactly right. Those docs can make a choice not to work in an er if so troubled by the prospect of helping a woman in need. Makes me think of book bans that are occurring: if a parent doesn’t want their kids exposed to a book, then they can censor their own kid. They shouldn’t have the right to censor other people’s kids, esp when the books being banned are award winning books of exceptional writing.
"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!
Also, wonder if he’s angry because he is in a position of being compromised like his buddy Thomas.....just sayin’
Doubt it. Thomas is less compromised (in the sense of being bought and paid for) than just got arrogant and didn't think he needed to pay attention to rules like that and the same arrogance is likely to mean Alito's not squirming. If Thomas wanted to sell his votes he'd be getting billions not some pj flights and chump change for him.
But I really think the Thomas situation is the wrong place to look. It's this perfectly legal (modulo Alito's leak) crap with Schneck and his friends creating a cabal that invites the conservative justices to exclusive country clubs and makes big donations to the SCHS (for justices flattery of their legacy is more tempting than cash for them) in a way that basically trades social face time for exclusive invites and honors that's much more concerning. https://www.brennancenter.org/our-work/analysis-opinion/real-supreme-court-news-isnt-alleged-alito-leak
Even justices will have friends and while Crow's jet may have helped him make friends with Thomas I believe they are real friends and his influence is via that bond. OTOH this crap Schneck was running basically auctions off the chance to pitch your views to a justice (and maybe get a dinner invite where they'll get tipsy and leak a case). That's much more of a real threat imo. I don't think it's an accident that it wasn't Crow but part of the Schneck cabal who got the only documented modern SCOTUS leak.
It's just that it's hard to address with ethics rules. Ok, maybe the justice has to pay their own way at these fancy country club dinners. But w/ net worths all in the 20-40million they don't even notice. The real valuable commodity is the access to exclusive clubs you can't purchase and the promise of fawning coverage by the supreme court historical society.
While the friendship between Thomas and Crow is almost certainly genuine, it’s naive to discount the possibility that it is also part of a longstanding influence operation. There is probably less difference between Rev. Schenck and Mr. Crow than you suggest. Consider Mr. Crow’s trusteeship for the SCHC—he’s practically working out of Schenck’s playbook.
Thomas, of course, doesn’t think he’s selling his votes, and he almost certainly is not, in that straightforward sense. That’s what makes it an influence operation. The goal was to surround Thomas with ideologically like-minded folks in especially pleasant settings, “to shore up the resolve of” the targeted justices, as Schenck said in his congressional testimony, and to soften them up to arguments presented in amicus briefs from AEI and the like.
And I don’t think we have to choose between Thomas anger and arrogance—he’s been angry since his confirmation hearing, and believing he is not bound by the rules that apply to everyone else is of a piece with that.
I always kinda felt that way (and been reading less opinions recently) but I know how tempting it is to accuse your opponents of that (and I hate Alito's votes most of all the justices) so I always doubted that conclusion.
This time the clerks didn't have the time to clean up the cranky uncle energy and it was just too obvious to ignore even if I want to give ppl the benefit of the doubt.
"[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.
I must agree that Supreme Court Justices would not seem to merit a high place on the list of those with a strong claim for charity. Steve Vladeck has a fully charity-free take on this remarkable Alito argument in his substack blog, for those interested.
*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?
Your memory disserves you in the particulars, but some of the broader issues are worth considering. Justice O'Connor was a state judge before her Supreme Court appointment. It is possible, though, that she received questions about her lack of exposure to federal constitutional law. It's also possible that the Arizona state system has specialized courts -- some states do and others do not. Federal district courts, however, are not really specialized that way. Some people have advocated for specialization in one form or another in the federal courts. The idea has its pros and cons. But ultimately, even if that kind of system were enacted, it would be hard to prevent every single constitutional law judge from ever issuing an outlier opinion.
A well written, even handed summation of the case so far. Thank you.
Let's not also forget about the forum shopped Trump Judge in FL they helped Trump in his stolen documents case.