zeke5123a
28d ago
I think it’s 5-4 with ACB being on the liberal side. Government got the harder of the question but BK made the most impactful point re asymmetry of the outcome and Roberts understands institutionally forum shopping nationwide injunctions increases the frictions between the branches in a way that will cause a constitutional crisis. ACB reads too much of the NYT.
zeke5123a
28d ago
A few points:
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If the argument is “it doesn’t matter SCOTUS will decide anyhow,” then (1) maybe not due to cert denial, (2) maybe yes but if SCOTUS sided with the 499/500, then an injustice occurred potentially for years, and (3) if trying to solve time then legal issues don’t get to evolve within multiple rulings to tease out the thorny issues.
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DOJ discussed long standing precedent that the general rule is they respect the opinion and judgement but they reserve the right to respect only the judgement. Notably, this is a historic precedent something that the DOJ actually pursued while Kagan was solicitor genera. However, the DOJ stated they would respect both the opinion and judgement of SCOTUS.
How about bring overturned on a national injunction is evidence of bad behavior and therefore removal is merited? That is, a judge should only do it in the most extreme clear situations?
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