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PaperclipPerfector  5mo ago (text post)   22423 thread views

Culture War Roundup for the week of December 22, 2025

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The judge will often get some ideas that neither party had and ask to be briefed on the issue before he rules. But from what I can tell he doesn't necessarily buy his own arguments since he ultimately finds them lacking once they've been fleshed out.

This is one thing for a trial judge (whether state or federal district) to do, but it's another for an appellate court, especially a secondary one. By that point, there has been extensive litigation, and lower courts have made rulings based on the presentations of the parties.

The SC would probably prefer to rule in an anticipated issue now rather than have it come up later in another case, and it makes sense that they'd give the parties a heads up so they can prepare accordingly. I'd rather they get it right the first time than make bad rulings because procedure says they have to.

There is the danger of advisory opinions, but in general I agree. Citizens United came about after a first round of oral arguments, orders for more briefing, and then more oral arguments to end up with a broad ruling, and I think that's the much better way to go.

However, the Supremes do the "ruling on the narrowest possible procedural grounds" trick all the time in other (fully-briefed, not emergency docket) cases. Roberts is the king of such opinions. Gattsuru can probably provide a laundry list of times the Court (or circuit courts) have pulled that trick in firearm cases. That's exactly what they did in Masterpiece Cakeshop and Fulton v. Philadelphia. And then there are times I swear they grant cert on cases with terrible procedural posture just so they can more easily manipulate the outcome.

Here, where it's a ruling on a stay regarding a preliminary injunction, it strikes me as especially bad to change the arguments at the highest level. There hasn't been full briefing by the parties, no amicus briefs, and no oral arguments. It's on a short timeframe with a limited record. That should be the time to stick to the exact arguments presented and issue narrow rulings.

As a body, they aren't shy about making it clear that they can do whatever they want.

We're in 100% agreement on that part.

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