Has the court ever explicitly explained or blessed this defense of appellee vs appellant? Or is this just you two trying to come up with an explanation? (I.e. we are left to rationalize the courts behavior in the shadows)
I think there's still a big broader point to address which is that in this situation the chief was taking a more aggressive and conservative position while relying on facts outside the record and relying on factors (money damages) that aren't typically described as irreparable harm. I take this as a large data point against the chief being a moderate or someone who calls "balls and strikes" (a metaphor I've loathed since I first heard it).
As smarter commentators have pointed out, I wonder how much of the particular arguments, missing arguments, and language style is just due to the fact that it seems most everyone is just fighting over getting Kennedy's vote.
Economic harm can be irreparable if it can’t be remedied by a final judgment awarding damages. I’m not aware of a damages remedy that’s available for the costs of implementing unlawful regulations, and some of the damages might be hard to quantify, like in non-compete and trade secrets cases (maybe, I don’t know). That part doesn’t seem that crazy to me.
So the argument is that the Chief Justice should have (and maybe implicitly did) consider the equities, as required, but thought the merits were so clear that he didn't really have to (i.e., consider the harm to the federal government)? That doesn't really make sense to me. Where does the "in a close case" qualifier come from (not from Nken, certainly)? What is the point of having factors if they can be ignored/read-out of the test at will?
Thanks. For the "in a close case" qualifier, the Chief's memo cites an opinion by Justice Ginsburg in Conkright, which itself quoted a Justice Brennan opinion. I would not say that this principle can be ignored "at will."
Thanks. I was otherwise unaware of the “close case” qualifier. And I was exaggerating for effect, but it does seem to give troubling latitude to the Justices to ignore the normal factors.
Supreme Court practice is outside my wheelhouse, but in the context of an ordinary request for a preliminary injunction in a district court, the only elements that actually matter are likelihood of success on the merits and the threat of irreparable harm to the party seeking relief. The balance of equities and the public-interest element basically never make a difference to the outcome and get like 1% of the court’s attention.
Wanted to share the thoughts going through my head:
-The qualifier about whether the government is the moving party is exactly the kind of form over function technicality that gives lawyers a bad name.
-Justice Jackson’s comments about harm from being stopped assumes that we have an answer about what you’re not allowed to do; so, decide that. A very real criticism of the shadow docket is that it is not clear what they are doing.
-The lack clear, proper legal analysis seems like good reason to not act where it is not clear what theory you are taking.
Thanks for the post. Nice to see thoughtful discourse.
Glad comments are back!
Has the court ever explicitly explained or blessed this defense of appellee vs appellant? Or is this just you two trying to come up with an explanation? (I.e. we are left to rationalize the courts behavior in the shadows)
I think there's still a big broader point to address which is that in this situation the chief was taking a more aggressive and conservative position while relying on facts outside the record and relying on factors (money damages) that aren't typically described as irreparable harm. I take this as a large data point against the chief being a moderate or someone who calls "balls and strikes" (a metaphor I've loathed since I first heard it).
As smarter commentators have pointed out, I wonder how much of the particular arguments, missing arguments, and language style is just due to the fact that it seems most everyone is just fighting over getting Kennedy's vote.
Economic harm can be irreparable if it can’t be remedied by a final judgment awarding damages. I’m not aware of a damages remedy that’s available for the costs of implementing unlawful regulations, and some of the damages might be hard to quantify, like in non-compete and trade secrets cases (maybe, I don’t know). That part doesn’t seem that crazy to me.
Just to be clear in case there is any chance of confusion: I mean "smarter commentators than *ME*" not "smarter commentators than Baude and Re".
So the argument is that the Chief Justice should have (and maybe implicitly did) consider the equities, as required, but thought the merits were so clear that he didn't really have to (i.e., consider the harm to the federal government)? That doesn't really make sense to me. Where does the "in a close case" qualifier come from (not from Nken, certainly)? What is the point of having factors if they can be ignored/read-out of the test at will?
Thanks. For the "in a close case" qualifier, the Chief's memo cites an opinion by Justice Ginsburg in Conkright, which itself quoted a Justice Brennan opinion. I would not say that this principle can be ignored "at will."
Thanks. I was otherwise unaware of the “close case” qualifier. And I was exaggerating for effect, but it does seem to give troubling latitude to the Justices to ignore the normal factors.
Every injunctive case I've ever litigated has required assessing the balance of harms to the *parties.*
This post reflects desperate hackery to defend a lawless and indefensibly corrupt Court.
Supreme Court practice is outside my wheelhouse, but in the context of an ordinary request for a preliminary injunction in a district court, the only elements that actually matter are likelihood of success on the merits and the threat of irreparable harm to the party seeking relief. The balance of equities and the public-interest element basically never make a difference to the outcome and get like 1% of the court’s attention.
Not the case in my experience
Fair enough.
Wanted to share the thoughts going through my head:
-The qualifier about whether the government is the moving party is exactly the kind of form over function technicality that gives lawyers a bad name.
-Justice Jackson’s comments about harm from being stopped assumes that we have an answer about what you’re not allowed to do; so, decide that. A very real criticism of the shadow docket is that it is not clear what they are doing.
-The lack clear, proper legal analysis seems like good reason to not act where it is not clear what theory you are taking.
Thanks for the post. Nice to see thoughtful discourse.
I’m sure Professors Vladeck will have something more to say about this very soon.
Glad Will decided to weigh in against Steve's misleading, partisan takes.