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That's one interpretation. On the other hand, I can understand her reaction at the conservative majority's repeated disrespect for stare decisis and existing case law, their tendency to craft non-textual and ahistorical reading of the Constitution to suit their short-term political goals, and their seeming bottomless capacity for subservience and deference to an obviously unlawful executive branch that has repeatedly evinced contempt for the judicial.
So, given the extraordinary depths that the majority is sinking to, her dramatic dissents are more justified than you think.
However, either way, its very hard to defend the view that the US constitution entails a democratic limit on abortion.
When the SC rules that something is required or forbidden by the constitution, they mean that it is beyond the power of congress to permit or prescribe it; it is is completely outside of democratic control.
The majority of the court today have a judicial philosophy which was common to the court for most of its history whereby one would only, in extremely certain cases, rule an issue entirely outside of the democratic process -- ie., decided entirely by the constitution alone, as interpreted by 9 people.
It isnt the job of the SC to make america moral, or require the whole of the US to follow how you wish things to be -- their constitutional role is to prevent the operation of democracy in extremely clear cut cases.
As for presidential immunity -- all constitutional centres of power (congress, the courts, the president) have immunities in the exercise of that power. These are required to enable them to function as balances of power against the other. Eg., if the president could arrest a judge for a bad judgement, the courts would not balance the executive.
The court confirmed only that the president has no more or less the necessary kind of immunity that each branch has -- and this is a clear requirement of the balance of power system set up in the constitution.
They left open, very widely, grounds on which a president acting outside of the duties of the office, could be prosecuted. And they clearly believed trump could be on at least some of those grounds.
I wonder if you misread my comment or just aren't aware of recent court history. The current conservative majority did not decide Roe, which is a case from 1973.
An example of a non-textual reading of the Constitution is last year's Trump v US case, wherein the conservative majority decided, apparently without any basis in law or Constitution, that the President is entitled to presumed criminal immunity for all official acts. You seem to have completely misinterpreted what this case was about: it's not about charging the president for "bad presidenting", it's about holding him accountable for criminal acts. Judges who violates criminal law are not exempt and enjoy no immunity.
Or how about Snyder v US, wherein SCOTUS decided to neuter the federal statute on official corruption, because their reading of "bribe" required money to be proffered before and not after the corresponding official act.
Or how about today's stay of the injunction against enforcement of the wildly unconstitutional attempt to void the 14th amendment, essentially giving the president the right to violate constitutional civil rates as long as he does it in states that support him against people who can't afford effective legal representation.
Doesn't that require an appeal? Or are you saying they'd go put a policy or law on hold even if there wasn't an open case after a lower judge ruled against them and the government chose not to appeal so as to not risk losing more broadly.
Seems like the takeaway here for any would-be executive-overreachers is "lose a couple cases affecting a handful of plaintiffs and ignore those loses."
IIRC the general trend for getting a class certified for a class action is also in the "make it harder to do" direction.
It's important to remember here that states are relevant parties to these suits against the federal government, and there are enough of them to enjoin any practical excerise of executive action.
The SC has basically asserted that only it will, temporarily or permanently, review those cases where there is a federal-level split on these issues requiring a universal solution.
I have a feeling he's also hinting that the SC will, in light of this, look at how it handles temporary orders -- he has, at least said, it is now obligated to be very proactive in these areas and take on all such temporary requests to enjoin the executive
There's also the APA question, I don't fully understand judicial review in these cases -- but iirc, the APA grants courts to order the executive to stop (or to take) action on such policies. So when the EO has a "policy implementation" people can bring suits under the APA to enjoin, which is equivalent to a universal injunction.
It's hard to believe it's so innocuous given that (a) it is such a new approach to the issue for a not-new feature of US law and (b) the broader literature being pushed by the people pushing for this change.
Instead it feels like the song and dance around how some Senators would try to get SC justice nominees to say they wouldn't overturn Roe v Wade - distractive performance that's utterly non-binding and an obvious smokescreen.
Ironically, imv, I think in this case, they didnt. This was, imv, a case where a universal injunctions was actually within the power of the disctict court -- because (and here Sotomayor is correct) the states were being obligated to take on burdens that "crossed state lines" and a complete remedy to relieve them of these burdens actually requires a universal injunction. So, imv, under the history of what equitable remedies are supposed to do, this would be one rare case where the action of the courts could be legally defensible.
However, the SC was extremely fed up with district courts sending inumerable number of cases their way -- trigger happy judges at the distict level deciding they're going to rule for the whole US in a federal system. So, by this point, they've tried many times to stop it, and it hadnt worked.
Here all they said is that you can have UIs only where congress makes explicit that courts have this power. They have done something kinda similar in the APA (creating judicial review of exec action), and can do again here (eg., a democratic congress could give the power in immigration cases; I think its plausible something like this happens). They also themselves retain the right to make such orders.
So they have only really moved where in the system such action is taken, retaining district court's rights to still -- very broadly -- give quite wide injunctions. And congress still has the power to empower the courts (though, as per usual, Thomas indicates he's on crazy pills and implies he would prevent congress from doing that -- that's not a serious outcome though).
Given the problems they faced with district courts, something had to give. They were persuaded, plausibly correctly, that there are enough avenues to prevent this executive overreach without empowering the lowest rung of judges to rule for the whole of the US.
> However, the SC was extremely fed up with district courts sending inumerable number of cases their way
Well hold on then.
So you think the Court was wrong in this case? That they were just on tilt? Because if this case is a case for a universal injunction then does the executive have standing to ask about that issue here?
But if Sotomayor is correct on the relevance of a universal injunction here, then why is your "non-hysterical reaction" defending the decision instead?
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I also find it hard to agree with "judges are creating problems" vs "an increasingly aggresive executive is creating problems." The legislature hasn't been able to do much for a long time because the splits are so close, so presidents try to do more directly. Is enabling that despite how closely split the legislature is ANYTHING like in line with how the US government system is supposed to work?
Cause really, awww, they have more cases than they used to? Welcome to the computer driven future, it sucks for all of us, don't make us suffer because you're tired of it.
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.
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.
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.
> 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.
> However, the SC was extremely fed up with district courts sending inumerable number of cases their way -- trigger happy judges at the distict level deciding they're going to rule for the whole US in a federal system. So, by this point, they've tried many times to stop it, and it hadnt worked.
...so you were lauding a "Some of you may die, but it's a sacrifice I am willing to make" opinion?
We're talking citizenship here, in a time when the executive branch is deporting people as hastily as possible to prevent judicial review. But the supreme court was "extremely fed up" and took a stand...against universal injunctions. How "non-hysterical" of them.
Many states will have state-wide injunctions, and there will be a nation-wide class action suit to go thru the courts, and if there's any executive policy on this, it will receive judicial review.
The SC will also, whilst this is going on, intervene an basically issue a universal injunction as soon as the executive takes any issue whatsoever with this process.
The executive order literally orders agencies not to recognize citizenship for children born in the US after February 19th to parents that aren't citizens or permanent residents. That can now proceed if you weren't personally covered by the three existing injunctions, so not sure what you're talking about.
And when this has a policy implementation it can be reviewed by the courts under the APA and that policy declated unconstitutional.
So no, this ruling says nothing about the executive order. An K's concurrence explains all the ways the order can still be challenged.
You can see the relevant law here: https://www.law.cornell.edu/rules/frcp/rule_23
These injunctions are used in cases where the judge believes "irreparable harm" harm is imminent for a large group of people. It is not realistic to expect every person (or at least one person in every state/district) to hire a lawyer and argue the case to protect themselves.
What a lovely way to frame a statement and put down people who hold a multitude of opinions that you do not share.
I don't take people who engage in this emotionally elevated reaction to the issue to have a different opinion, I take them to have no opinion at all -- because their reaction isn't an evaluation of the judgement.
All i'm saying is, "before you go ham on emotionally disregulation based on media reports, go read a few pages of the actual judgement
It's just civil rights and citizenship. Why can't they all be as detached and unimpacted as rich old guy Kavanaugh?
Kavanaugh is good to read on any topic - his writing is clear and often easily understandable by the layman. Gorsuch is an excellent writer as well. Those two are imo the best writers currently among the justices.
It's important to read his stuff too because it seems to gain more acceptance as time goes on.
Your points on Sotomayor are well taken, her dissents are often way over the top. However I'm starting to think Justice Jackson is potentially worse when it comes to histrionics
The textual case is pretty much completely against them, and if you prefer a consequentialist analysis their drawbacks are well documented across the political spectrum. I will say Barrett's time as a professor can mean her opinions are highly technical in their procedural analysis and she's not as strong of a writer as other members of the court.
This very opinion is also an example of something that Thomas has beat the drum about for some time and it later becomes a majority opinion.
"The court’s decision to permit the executive to violate the constitution with respect to anyone who has not yet sued is an existential threat to the rule of law,” Jackson wrote. “Given the critical role of the judiciary in maintaining the rule of law … it is odd, to say the least, that the court would grant the executive’s wish to be freed from the constraints of law by prohibiting district courts from ordering complete compliance with the constitution.”
Reacting to a (female) judge assessing that there is an existential threat to the rule of law, in an administration that has done everything to break through the boundaries of law and openly violates it is hardly "hysteria", especially when there is a track record of robbing people of due process, which is literally and precisely the executive asserting its supremacy over the judiciary by robbing it of the opportunity to make a ruling.
If you read K's concurrence, you'll wonder why there is any issue at all. Since, roughly, there isn't one -- there are a very large number of ways this EO can be challenged universally without requiring UIs
Hearing that the executive is less constrained and more able to violate the law should make you emotional, especially when one of the nine highest members of the judiciary are assessing it.
You don't want your country being run by the craziest common denominator amongst the judiciary. This is about as far away from democracy as you can imagine, and allowed to run rampent, would lead to massive a democractic backfire.
Imagine the political upheval of a democrat president being unable to act because of trump-apointee crazys in florida. The court has just prevented a decade of mass protests and political insability
Yes, we'd much prefer a dictator attempting to unilaterally invalidate constitutional amendments...
> The court has just prevented a decade of mass protests and political insability
Yes, they have - by further emboldening the executive ala Unitary Executive theory. This isn't a good thing - we are all witnessing one of many steps in the US' descent into fascism.
I love this. “Everybody that disagrees with me is hysterical and it is actually the dissent’s fault” is a fantastic take. It is literally impossible to simultaneously disagree with you about this and also be of sound mind. I feel like you could have worded this a tad differently, “I am very smart. Possibly the smartest, and the sanest. I am superlatively smart and sane, and my brain is very good.” would have been more succinct.
None of this is grounded in the details of the ruling. It's a symptom of how the dissent has been presented in the media.
I cannot see on what basis my comment is wrong.
Paul Graham made a useful chart for judging whether or not your rhetoric is actually aimed downrange: https://en.wikipedia.org/wiki/Paul_Graham_(programmer)#/medi...
You could have started with a refutation of the point if you wanted to impress us. Instead we're 40 comments deep in a flagged comment chain because you wanted to put your ad-hominem foot forward. When you editorialize your language like that, you dilute the point to something anyone could argue over.
Perhaps I could've better phrased it, "Given the emotional disregulation caused by the dissents, go read K's concurrence" -- however this is what I meant to say, still mean to say, and said.
I don't take the only legitimate aim of a comment to be "arguments" in this sense. One can comment on the psychology of the environment one finds oneself in without this being ad hom.
Exactly. Everybody else is emotionally disregulated and you simply have the serenity that comes when there is no daylight between your opinion and the objective truth of reality. It is important that people know how much better you are at feeling and thinking than them, otherwise what would be the value of just saying your thoughts on the topic at hand?
What? Seems like you're working backwards from wanting to spout about Sotomayor. This is exactly the gamesmanship she pointed out the majority allowed the Trump administration to play with.
Look at all these fun, lengthy, expensive legal remedies you can attempt over the next few years to protect your basic rights while the executive branch enacts plainly unconstitutional policies. Someone count the number of nationwide injunctions during the last four years where the majority could have stepped in to swat down the trend but didn't, but instead chose this one.