The step the Supremes took yesterday, at end of day on 9/11, is rather. . . extraordinary. The nation's highest court jumped into a dispute that is still pending on temporary orders, at a trial court level. That is three levels below them -- and. . . that is an exceedingly rare bird (see concluding footnote). Just this week, as of September 9, 2019, the TRO record was complete, from the plaintiffs' point of view, in establishing concrete harms from the proposed rule -- to support restoring a nationwide injunction.
The trial level court then restored that nationwide injunction on the tenth. Still pending in that court are briefs due Friday. Then, as set forth below, the able Judge Tigar will decide without an argument, whether to once again restore the nationwide injunction. This order, as entered in Oakland on Tuesday, still stands, as of Noon Eastern -- here on the twelfth:
. . . .Although Defendants have not filed a motion for order shortening time, the Court on its own motion orders Plaintiffs to file an opposition by September 13, 2019. The Court will then take the matter under submission without a hearing.
Signed by Judge Jon S. Tigar on September 10, 2019. . . .
Said another way, the new evidence -- just ruled on on Tuesday, in Oakland, was NOT in the hands of the Supremes when it stepped in and imposed a stay, pending full argumentation in the lower courts. It was the Supremes after all, that said the plaintiffs in the trial courts -- in Oakland -- needed to develop a more fulsome record, to support the pending relief, when it last weighed in on these matters. The trial courts have now done so.
And so -- yet another new injunction (against Trump's lawlessness) could be in place within a few months
It is more likely to go back to the Ninth Circuit first, though, in truth. Onward -- but candidly, I flew my US flag upside down, this afternoon -- as I try to resist the feeling that Chief Justice Roberts engaged in some political theater here -- knowing it would be hailed by Trump endlessly on the campaign trail (despite the high likelihood the rule will still be enjoined when the Ninth Circuit dust all settles, in a few weeks' time).
[Ultimately, and in a dark omen for the rule of law (given the brazen political thinking it would imply) Chief Justice Roberts may be thinking that by the time it would otherwise next reach the Supremes' docket. . . Trump will no longer be in charge. But he's made a Plato's wager of sorts, on the chance Trump still is. . . in charge.] I certainly hope not, for all of us, on all counts.
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4 comments:
Thoughts?: https://www.vox.com/2019/9/12/20862320/sotomayor-supreme-court-favors-trump
Sadly, for our system of ordered liberty and the rule of law -- not men -- i think she is "a wise Latina woman. . ."
In sum, I think she's. . . right.
It beaks my heart to say, so -- too. I've noted this before:
". . .Vladeck writes, “in less than three years, the Solicitor General has filed at least 20 applications for stays in the Supreme Court (including 10 during the October 2018 Term alone).”
By contrast, “during the 16 years of the George W. Bush and Obama Administrations, the Solicitor General filed a total of eight such applications — averaging one every other Term. . . .”
I do worry that we are going to see decades of skepticism, now -- as people eye what this Court does and does not honor, of its 200 years of precedents.
Great find, Anon., just the same. . . .
[I'm off grid, no cell from about 3 PM local today, until Sunday night, late -- on a northern WI lake's cabin. . . backwoods.]
Namaste. . . .
oh to get away. Peace on the lake...enjoy.
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