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To be clear, I'm not making allegations that there are clear violations of process or defiance of higher court. I have other examples for that. I'm making three different criticisms, here:
Regardless of Summerhayes' relative level of competence or political alignment, there are pretty clear problems in this decision. A federal judge should not accidentally issue a ruling that leaves people referencing NAACP v. Alabama in rejoinder. The previous proposed order does not cover Broussard, a named member of the plaintiff orgs, who was the only reason the plaintiffs still had standing, which the plaintiffs specifically noted would not be protected by the language that the court adopted. The extreme constraint of declaratory relief are even less defensible, and seem to be based on an active misread of the Declaratory Judgement Act promoted by the defendants playing a game of telephone with citing mangled citations to irrelevant cases. And as a lesser bugaboo, the court could have read 44 pages and written a 2 page order in less than 18 days; I expect more from teenagers writing book reports, and many of them don't have this sort of grievous error at the same time they scrawl out their five paragraph essays the night before.
((I'm using his name, specifically, because I'm trying to make a not-very-subtle dick pun as a contrast to the length-of-a-pregnancy one, and it's a lot less funny if the judge in question here was a woman or named Richard.))
Going to relative competence, it's a problem if this is that average behavior, and that these are Just The Ways Things Are Done in the courts. Yes, it's absolutely normal for the courts to give out broad extensions; it's absolutely normal to rubber stamp the government's requests on final judgement; it's absolutely standard for the wheels of justice to grind slow and fall back on prayer when it gets to fine. It's absolutely normal for the government to treat the ATF and DOJ like honest actors, and anyone complaining about it to a judge would only hurt their own case. I'll quibble about the difference between joint and uncontested actions, and recognize that there are worse courts, but ultimately, they end here.
Going to political alignment, it's a problem that there are exclusions to this standard. The ability of courts to offer widespread orders even very early in process and posture is not a casualty of CASA. Yes, there's a defense of the court process that in that case, people filed a request for an order (though I will note that they didn't request many specifics the judge ordered anyway, like the body cameras). Those plaintiffs were willing to request the moon, earth, and sky because they knew that they had a significant chance of getting it, and faced little risk of slowing their case's roll otherwise; the plaintiffs in Reese knew, quite well, that they had absolutely zero chance until after a lengthy appeal process that would outlast any relevance of the case to themselves.
And, leaving aside the judicial system itself, I can point out that the Most Pro-Gun Administration Ever futzed around with considering a cert grant for months on end, and then could not come up with either a compromise or a reasonable request for judgment, and in that entire time still has not written a guidance letter to FFLs who this case would immediately impact and who the government is willing to tell -- but only in non-binding ways and only months after supposedly making the decision -- that it tots promises not to prosecute them (offer only good until a Dem administration thinks it's going to win in court). Yes, I understand how the difference between precedent and judgement works; I also understand that post-Defense Distributed settlement being treated like toilet paper, that this means a lot less than lawyers pretend it does.
I'm trying to make a prediction, and to get a prediction in response: if the case is not mooted or lost, do you believe that its final judgement will be solely limited to the seven current plaintiffs?
The court isn't powerless to grant an injunction. The court has expansive opportunities to grant relief, so long as those opportunities are specific to the parties in this case. It's just not going to do so because no one asked it, and no one asked because they know and anyone remotely familiar with the courts knows that the courts won't grant such a request, as a matter of long-standing policy.
And other courts have been quite happy to jump up and down on that bar when they do not trust the government, or even when plaintiffs make sufficiently sordid stories about how they don't trust the government and we gotta have a ruling asap because of that.
No, they say that having members who want to buy a gun specifically under a legal defense provided by being a member of that organization 'making' that voluntary disclosure would at least be a possible response that doesn't involve telling the winners in a court case to sit on NAACP and spin. It's only one of the options that the plaintiffs provided, and the one they'd favor least, but it's a lot less destructive than 'here's our member list uncle sam please don't leak it'.
It's unclear whether NAACP would actually apply in this case. That case involved an as-applied challenge, not a facial one, and an challenge in this case would accordingly only be successful if the Plaintiffs could demonstrate both that the disclosure was unnecessary and that it would subject the members to harm. The first bar is difficult for them to overcome since the government has a clear interest to know with some degree of particularity whom the judgment applies to. The plaintiffs assert that it's up to the government to figure out how to comply with the order, but they don't cite any case law for that, just an article from the Harvard Law Review arguing against nationwide injunctions. Interestingly enough, the cited article actually refers to a case where the court granted universal relief based on the idea that it would be difficult for law enforcement to identify members of the plaintiff association, and argues that that this was unnecessary because members could simply identify themselves! The second prong would be even harder for the plaintiffs to meet, because similar challenges in the past have failed because the plaintiffs were unable to demonstrate any harm beyond minor harassment. The NAACP members were able to show clear cases of death threats and other serious activity. If there were similar instances of harm against the named plaintiffs in this case, then they might be able to meet that burden, but I haven't seen any evidence of this so far. I would also add that courts are generally impatient when it comes to plaintiffs refusing to make disclosures that would advance their interests in the context of the case. The cases I'm aware of that involve disclosure of membership involve the government suing or imposing requirements on organizations that never asked for anything, not plaintiffs who are unwilling to participate in litigation they commenced. On a weekly basis I deal with plaintiffs who bitch about having to be deposed for days on end and asked questions they couldn't possibly know the answers to, to which I want to tell them "You can make this stop right now if you drop the suit." My point here isn't that requiring such a disclosure would necessarily be impermissible, just that the judge isn't incompetent for assuming it wouldn't be, as there's no blanket rule prohibiting the government from making such a request.
Yeah, they could have, in a vacuum, but, and this may surprise you, this isn't the only case the judge is dealing with. You have no idea what else the judge had to deal with in those 18 days, and he isn't going to drop everything to issue one order among many he has on his plate. The fact that he got it in within 30 suggests that he had a normal workload, but if the submissions hit in the middle of a trial it could have taken months before he got to it. I know this is your hobby horse and you think that these cases should take precedence because they involve fundamental rights or whatever, but every case involves someone looking for their rights to be vindicated.
It seems that your overriding problem with the courts stems not so much from any of the things you describe, but with the fact that they don't always rule the way you want them to. You can complain all you want about the court's willingness to grant extensions, but would you consider it a preferable outcome if the court refused to grant the Plaintiffs an extension to file a reply brief and they ended up dismissing the case with prejudice? Because something similar to that is bound to happen, and the judicial system as a whole would love to be able to clear their calendars, but everyone involved recognizes that people have other shit to do and that the system works better if everyone grants some professional courtesy here and there. Yeah, things move slow, but no lawyer can make a living on one case at a time, and if you want judges to do the same you're going to be paying for a lot of waiting around.
No, it isn't, and I never said that it was. But I'm not sure what your argument is here by posting a totally different case from a different court. Just because courts grant emergency releif in some cases doesn't mean it's appropriate in every case, and you haven't made the argument that it would have been appropriate here. They didn't ask for emergency relief because there was no grounds to do so, and of course the judge wouldn't grant the motion.
If this is your complaint maybe you need to consider the possibility that you hold a fringe position that's broadly unpopular, and that it's unreasonable for you to expect the courts to do everything you want them to do, or that maybe Federal judges know a little more about the law than you do.
I don't know whether the groups in question are willing to provide the names of people whom the order would still apply to in a meaningful way. If there are a few such people, they might, with consent, release the names to the ATF in order to secure the injunction. I think this is what next week's conference is going to be about, and why the judge wants to hold one instead of simply signing a joint order. But beyond that, the upshot of the case is that the government won't be able to prosecute FFL holders for selling guns to 18-year-olds in the Fifth District. Even absent an injunction, any such prosecution will get kicked pretty quickly. Whether or not any gun stores will be willing to sell to anyone under 21 is an open question, and is up to the discretion of the stores themselves. The risk is that the ATF prosecutes anyway and wins when the case is overturned by the Supreme Court. An injunction would not prevent this outcome. If the ATF decided to prosecute for an underage sale in contravention of the Fifth Circuit's decision, and there was an an injunction against doing so, and the ruling was overturned by the Supreme Court, the result is not that the case would get kicked, but that someone would get prosecuted for contempt. In that situation, it's nothing more than a consolation prize.
While courtrooms and mathematicians might need people to demonstrate 1 + 1 = 2, actual humans -- including judges acting of their own volition -- can notice that a) the DoJ has a long history of leaking private information like a sieve after collecting it from right-wing-aligned orgs, b) no small number of SAF's members would face social and career ramifications were their membership publicized, and c) plaintiffs presented alternatives over two weeks before the judge submitted this final judgement.
I'm sure the court can Well Asckshutally how that's not quite the explicit standard from NAACP. I'm also hoping that the 'winners' in a court case not need be faced with the question of whether the final judgement is so unconstitutional it's covered all four corners under a decades-old foundational court case, or 'just' unreasonable and harmful to the 'winners' and likely unconstitutional.
The government did not make a request. The judge ordered that the full list be delivered, in three weeks, as a final judgment binding on the parties in this case. As you so wittingly pointed out, punishable by contempt for noncompliance. If you ignore what's voluntary and what's actually mandated by court order, the court orders look fine, but you've made this mistake multiple times in this conversation, and it's fooling no one else.
I'm not claiming it's incompetence -- I specifically say "regardless of Summerhayes' relative level of competence"! -- but it's clearly a problem, and more a problem for never even questioning whether the people he's targeting would want to comply, and if the search for neutral institutions just means we get a random selection between this and "the Second Amendment does not exist in this courtroom", all it's presented is a good argument against neutral institutions.
Behold, a federal courthouse operating at peak efficiency under normal constraints. I'm not claiming these guys are just sitting on their backside and eating bonbons the whole day long, and I'm sure there's other priorities. And I'm also pretty sure that they're not putting in 9/9/6 weeks. This just wasn't a priority.
That's an unintentionally funny joke. The courtroom's activities on September 19th were a sentencing hearing for a prohibited person case (drugs, coincidentally, albeit somehow still more sympathetic than Hemani), a revocation of supervised release, and then the one case that actually involved the judge in question here, a drug-related warrant case. The first two just plainly aren't about vindicating rights; they're about enforcing the law. An important role, but a different one.
Ah, but if the court had delayed Sam, perhaps I or someone else would be moaning about that... well, no, probably not. Apologies for linking to an AI summary, but I'm not paying for this case, and there's a reason no one else is either; it's hilariously overdetermined even by the morbid standards of Fourth Amendment questions. And, bluntly, I don't think that's the actual tradeoff.
There's a more serious defense that the courts can't do that sort of prioritization. And it died with Snope. They can and do and have. This just isn't a priority; this just doesn't take precedence when countless other matters have. That's absolutely my point, and more damning's that it isn't limited to this one hobby horse.
No. My problem is that I could buy either a court system actually obsessed with legal formalism, or one that considers the rights of individuals heavy on the scale regardless of the political allegiance of those rights. We have neither. We've had neither for a long time. I've spelled out that we've had neither for a long time.
By, of course, the extremely well-grounded and long-standing principles of where that tots haven't been rebuilt post-hoc to support progressive goals and ignore conservative ones, you mean?
No, they didn't ask for emergency relief here for the same reason they didn't request a temporary restraining order, even though that'd be the only way for any of their plaintiffs to ever actually personally benefit: because the courts would suddenly find novel and strict adherence to very specific precedent, while other judges in other contexts would find such things irrelevant compared to the terrified hallucinations of an immigration lawyer.
Considered, found in contradiction with the (available, since you don't bother actually arguing it) evidence, and even were it true, still runs into the central problem that we've still seen courts bend over backwards to defend fringe positions that were broadly unpopular, by federal judges that pretended to know a lot about the law as long as it got them what they wanted. All it's done is demonstrate nothing but will to power games winning.
More broadly, your complete inability to name any case where this should fall the other direction makes clear exactly how principled this position isn't. We're over a decade past a President completely refusing to defend a federal law because he thought it unconstitutional; there's no shortage of such gun laws today, no few of which have far less political or popular support. We do not see that happen today, no matter how bullshit or outright incoherent the law, nor do we see the administration assigning Guiliani to defend the laws badly on purpose. It's not a tactic that they use because it won't work, and they've found that out once already.
There were only three plaintiffs when this case started, and the court for some godsforsaken reason isn't willing to include someone who already declared his name publicly after the case started and before it concluded, and was the only reason the plaintiffs still had standing, and would not have been covered by the previous final judgement even had SAF been willing to hand over their membership records.
I think there's a fifty-fifty chance the judge doesn't file an final judgement by the end of day after the conference, a twenty percent chance that they just end up scheduling another briefing (todo: whenever people's rights matter again), and whatever he does eventually give is a pointless pro forma that just delays the plaintiffs appeal and issuance of mandate, applying to a single-digit number of people or no one. 30% confidence it doesn't even include Broussard.
((Also, I was asking for your predictions in one of the trans military ban case. The one I linked where the courts already issued a pre-CASA injunction, where the court never did in this case, and where oral arguments have repeatedly shown judges trying to argue for the most expansive judgement possible post-CASA. By legal formalism, that's just the seven plaintiffs in that case; there's not even association standing. Do you want to bet whether that will change, and whether the join date on that organization will be set in January of this year? For the inevitable declaratory judgement?))
Strange how they'd be willing to leave money on the table, if it were so certain. Oh well, good thing we don't have recent cases where the federal courts issued broad rules that the feds would have to follow to soothe the nerves of randos making broad and unsupported claims of bad actions or suspected bad actions!
No, we usually don't. Outside of weird cases like ordinals, 2 is defined as "1 + 1".
We do need people to demonstrate that 2 + 2 = 4, though (as 4 is defined as "3 + 1"), and that 1 > 0 (I literally had to prove that for a homework assignment).
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To be clear, this isn't The Most Central Example of the problems. Unfortunately, time is an arrow, the door is ajar, talking about problems seldom coincides with maxima happening. If I absolutely had to point to a case that screamed out for preliminary injunction, I'd probably point to the Illinois ban-sans-definition, since it's a new law so all the 'maintain status quo' stuff was self-evident bunk and SCOTUS didn't care even as lower courts announced that the bans didn't even implicate 2A rights. Maybe sprinkle in some of CCW permit/renewal cases which are basically distilled "important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable" and often also include state actors ignoring their own law, and never seem to matter.
But part of my point is to show that it's not some rare nutpicks, or just for cases so controversial as to get to SCOTUS, or only one particularly extreme or unusual policies, or only in particularly left-leaning jurisdictions and you could just move to a red state. On its own, this case wouldn't be that bad; maybe, eventually, someday, if a mandate ever issues and an FFL isn't terrified of the ATF playing silly buggers in three years, a 20-year-old will be able to legally buy a new handgun. But when no one can pull a counterexample from some vastly overexpansive ruling from one of Trump's many ideologically-driven and unprofessional nutjobs larger than Freedom Week, and no one can show a bigger or more by-the-book victory, and I can keep giving example after example after example over fifteen years of jurisprudence, it's a much more relevant pattern.
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