SCOTUS to LowerCourts: Ignore Binding Precedent, Follow Our Covert Shadow Docket
techdirt.com
techdirt.com
Conveniently, we have the shadow docket. A way to issue diktats without any arguments before the court and in many cases without any reasoning whatsoever.
And conveniently, lower courts can then interpret a lack of details from a shadow docket decision however they want. So that the executive can appeal yet again, to get another thumbs down from SCOTUS (without any explanation), and round and round we go. The executive gets to keep the plates spinning while it essentially does whatever it wants.
With this situation, why shouldn't we simply pack the courts? If SCOTUS is going to take more cases than it can handle and not provide any real guidance to lower courts, then clearly they need more employees.
By choice. It's only laws--not the Constitution--that requires the entire bench hear and decide on every case.
I'm not seeing how that applies. There's a clear asymmetry between lower courts issuing temporary restraining orders and preliminary injunctions on the basis of well-established precedent, vs. the Supreme Court overturning those with little or no explanation or justification.
When the executive or legislative action is "major", that would seem to make it more reasonable that the lower courts put the changes on hold pending a trial. Drastic changes should be implemented only with strong justification, and when a drastic change seems to be very clearly in violation of existing law, it is in dire need of checks and balances with teeth.
It certainly isn't the Supreme Court's job to help the executive pull off major changes more quickly.
The precedent may be binding, but injunctions—unlike final judgments—are discretionary relief. The district court doesn’t have to grant discretionary injunctive relief based on precedents that are in doubt, and if they do, it’s perfectly fine for the Supreme Court to overrule that.
> Drastic changes should be implemented only with strong justification
That’s exactly backwards. The elected branches don’t have a “mother may I” relationship with the courts. That’s not the design, and that wasn’t the practice for most of the history of the republic. Injunctions are by definition “extraordinary relief” reserved for the most unusual cases.
Go read Marbury v. Madison again. The Supreme Court bent over backwards to avoid having to enjoin the Secretary of State to perform what it concluded was a “ministerial,” non-discretionary action (delivering a letter that had already been signed by the outgoing President). Most injunctions against executive action in the recent decades would have been considered unfathomable overreach by the founding generation.
That "mother may I" phrase implies asking for pre-approval for routine stuff, which obviously isn't what's at issue here.
> Injunctions are by definition “extraordinary relief” reserved for the most unusual cases.
The unusual and extraordinary may have become quite common of late, but that doesn't mean it starts being wrong for a lower court to intervene when the president tries to fire an FTC Commissioner in clear violation of precedent about firing FTC Commissioners. A president ignoring the law is definitely sufficiently "extraordinary" to justify temporary injunctions, and the fact that he's doing it a lot only reinforces the need for the checks and balances.
> A hastily issued district court order should be (and is) subject to being overturned by the higher courts just as quickly as it was issued.
Don't be ridiculous. The entire concept of temporary injunctions is built on the fact that many situations need to be slowed down and the potential harm prevented until serious legal questions can be properly considered. The lower courts aren't being "hasty" in the sense that they're issuing these orders on a whim with too little justification, they're being hasty in the sense of acting with commensurate speed to the executive actions of questionable legality that the courts need to keep in check. But the Supreme Court shadow docket decisions do come across as insufficiently thought out.
> The district court doesn’t have to grant discretionary injunctive relief based on precedents that are in doubt,
A lot of these precedents really aren't in doubt, except to the extent that it's clear the current Supreme Court doesn't like them. But until such time as the Supreme Court furnishes the proper decision overturning existing case law (not just hinting at a willingness to do so in the future), it's reasonable for lower courts to continue applying that case law when it is extremely obviously applicable.
There is no relevant “routine” versus “non-routine” distinction in either the constitution or the law. Obviously, the folks who had just overthrown their government and created a new one contemplated elected branches that could make dramatic changes!
> A president ignoring the law is definitely sufficiently "extraordinary" to justify temporary injunctions, and the fact that he's doing it a lot only reinforces the need for the checks and balances.
It’s not, actually. The primary check on the elected branches is elections, not lawsuits. The courts exist primarily to vindicate personal rights, not to manage national policy. The framers never even envisioned that courts could enjoin the President for discretionary acts. Even Marbury rejects that notion.
Here, the personal right—someone’s employment as an FTC Commissioner—is the tail that’s wagging the dog. It’s not “extraordinary” because losing your job is such a grievous injury. It’s just a proxy for the government policies the FTC Commissioner has the power to execute. So the courts are being invoked in a battle over policy, which is exactly where the power of the courts is the weakest (by design).
We need deeper reform.
I’m personally a fan of choosing by lot, from the appellate bench, a random slate of justices for each case. (That court of rotating judges would be the one in which “the judicial Power of the United States, shall be vested” [1].) You could do this entirely through legislation—nothing in the Constitution requires lifetime appointments to a permanent bench.
[1] https://constitution.congress.gov/constitution/article-3/
Whats more likely are states to shift policies to ignoring the federal courts and localize.
The essential problem is the federal government is attacking the most fortified jurisdictions while choking their own support structures.
That doesnt mean theyll fail, the same way shitty policies dont prevent Taliban rule.
Trump may be pulling the lever to switch the tracks, capitalism is standing there doing nothing.
This is status quo for Florida's district courts of appeal (its intermediate appellate courts).
1. Court doing legislation by making decision on important topics, coming with reasoning, mostly building on previous reasoning and gradually changing things
2. Court makes a decision and then just build up a reasoning to support it, sometimes completely off
3. Court makes a decision without reasoning at all
I think 1 is reasonable, with 2 being bad and 3 being ugly.
The “living constitution” is an oxymoron. Any interpretive method that purports to “update the constitution with the times” almost by definition cannot be invoked to overturn democratically-legitimated laws and executive actions. If the duly elected legislature votes to execute accused criminals without trial, then that reflects evolving social standards. The only thing that can overrule that is the dead hand of the founders.
You may have a point that originalism doesn’t work. But if you’re correct, then that’s just an argument for curtailing the jurisdiction of the courts.
By what non-tautological definition?
Of course it can, because that's the method the court already uses and has always used. That they cover their personal and political interpretation with the thin veneer of "originalism" doesn't matter - it doesn't really exist, it's a farce. Their decisions are obviously correct when you agree with the outcome and radical legislation from the bench when you don't.
We need to stop pretending the courts at any level are any less partisan or political than any other branch of the government, and that requires disabusing ourselves of the premise that the Constitution was ever not a "living document" in practice.
> By what non-tautological definition?
The definitions invoked by proponents of "living constitutionalism." The steel-man version of their premise is that judges should interpret the constitution "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958) (Warren, J.).
But courts rarely hear cases that involve social standards that have actually evolved. Nobody is challenging outdated adultery laws in the Supreme Court because the social standards have evolved and nobody is getting prosecuted under them. An honest version of "living constitutionalism" would be an extremely narrow principle, reserved for unusual cases where someone has taken action contrary to the accepted social consensus.
> We need to stop pretending the courts at any level are any less partisan or political than any other branch of the government, and that requires disabusing ourselves of the premise that the Constitution was ever not a "living document" in practice.
That's just an argument for drastically curtailing the jurisdiction of the courts! We already have two political branches. We don't need a third.
2. New phenomena necessitate extrapolation. But many phenomena — death penalty, abortion, religious observance, public schools, etc — existed when the Constitution was ratified by the people; there’s no need to summon the dead.
This lawless corrupt Supine Court is making it up as they go along, and then Alito and Roberts have the nerve to be outraged when their blatant corruption is pointed out. I wish they would be subject to that ancient Persian remedy for corrupt judges.
History will NOT look kindly upon how the Supreme Court of the USA gave a government employee the power of a king.