With the greatest amount of respect as can come across in a Substack comment, Will, when will you no longer present as being confused and just call a spade a spade: the Court is not being consistent; the Court is acting politically, even if only in some aspects of its actions and not all aspects; the Alito response to Jackson’s dissent from expediting the mandate in Callais amounts to “I am rubber and you are glue”; you give them too much credit when you either hope that some other explanation arises or when you accept whatever ad/post hoc explanation may someday arise.
I expect I come off as a crazed leftist here but I believe I am someone who does his best to give the Court the benefit of the doubt and soberly assess their rulings. As much as the recent Clean Power Plan memo coverage threatens to be Will’s “Joker moment”, Callais (and the follow on items) threatens to be my own.
I regret feeling the need to be crass, and I threaten my own attempt to be seen as a serious commentator, but the Chief is smelling his own farts when he says/suggests, in response to all this, that people do not understand the Court and how it works.
I couldn't disagree more. What makes Will and Dan persuasive is exactly that they are so willing to present the best arguments even for views they disagree with.
I listened to all sorts of legal podcasts who agreed with this take and they never succeeded in convincing me that the court was being inconsistent with injunctive relief (eg injunctions in the Obama EPA rule). Will and Dan did *preciscely* because they didn't just rant and call it inconsistent and hypocritical. I believe that not only did they give the best arguments for the other side but also put it in the appropriate context.
I understand it's pretty frustrating when it feels like someone isn't recognizing something obvious but that's the price you must pay to persuade people. If they felt it was so obvious they wouldn't disagree and thumping on it makes them feel attacked. Besides, I want to learn what smart people on the other side would say.
To the contrary, I thought Prof. Baude was remarkably even handed and if anything not bashful about pointing out the inconsistencies between the court’s lack of urgency in Milligan compared to the speed of implementation of the Callais ruling.
While I agree that Purcell looks pretty random and arbitrary I worry people aren't being charitable enough to SCOTUS here. I think it's worth asking how you would have felt had the roles been reversed. Imagine SCOTUS had just upheld the traditional majority-minority understanding of the VRA and ruled that was constitutional (or even constitutionally required) and a district court had redrawn Alabama districts to *eliminate* a majority-minority district on the -- now rejected -- theory that doing so was an unconstitutional use of race.
Would you really say Purcell forces the court to leave in place the unconstitutional injunction that disenfranchised black voters over legislative objections?
Ultimately, I agree with Dan's (or was it Will) conclusion that deciding the case now was a poor choice (should have decided Callais earlier or let this wait) and Purcell looks pretty arbitrary. But I think reversing the situation reveals that so much of our intuitions here are really downstream of whether it feels like the lower court was engaged in illegal racial discrimination with it's injunction.
So yes I think Purcell is very problematic but at the same time it's one of those principles that only really seems to bite when you disagree with the underlying reasoning. Doesn't mean the court isn't wrong or don't deserve criticism but I think it shows that they are acting within the usual human imperfection of a court.
I know there were a ton of constraints--live show, guest, reading tea leaves from the shadow docket, etc.-- but I would have loved some more discussion about the mifepristone case.
I would have loved to hear a more in depth discussion about why Thomas jumps to a “criminal enterprise” when there has been no court that has actually found criminal liability and there is a long history of people arguing that comstock is unconstitutional (1st amendment problems, 5th amendment problems, vagueness, etc). I would love to hear more analysis of when Thomas jumps to labeling people part of a “criminal enterprise”. When defending merits opinions about convicted criminals i know Thomas likes to describe crimes in lurid detail, but this seems different in kind. My naive, lay, and parsimonious interpretation is that…Thomas just doesn't like abortion!
About politics it seemed that Will was trying to say the court might be going out of it's way to not play politics (I personally dont buy this) but when the discussion turned to the 5th circuit the assumption seemed go be “of course they will handle their docket politically”. Speaking of politics, why didn't the court just solicit the SG/FDA to submit an opinion? Even if that opinion was just “we are thinking about it” it would seem to be prudent to ask one of the major players with skin in the game to weigh in.
As many people smarter than me have noted: why did Alito put a clock on the original scotus stay? He seems to be the only justice that does this and Im not sure how it serves anyone. I would bet that most of the order errors were due to rushed writing…which was a problem of his own making.
With regard to the discussion on Trump admin’s win rate in the various executive power related cases, I’m glad Prof. Epps pointed to the various appropriations/impoundment related cases that mostly went in the admin’s favor on the emergency docket.
It appears that the Trump admin is about to scale up it’s efforts to push the envelope in this area with the Jan 6 slush fund, the ballroom and now the “Arc de Trump” project (see below). I hope this general area is given more attention in the blog and on the podcast
With the greatest amount of respect as can come across in a Substack comment, Will, when will you no longer present as being confused and just call a spade a spade: the Court is not being consistent; the Court is acting politically, even if only in some aspects of its actions and not all aspects; the Alito response to Jackson’s dissent from expediting the mandate in Callais amounts to “I am rubber and you are glue”; you give them too much credit when you either hope that some other explanation arises or when you accept whatever ad/post hoc explanation may someday arise.
I expect I come off as a crazed leftist here but I believe I am someone who does his best to give the Court the benefit of the doubt and soberly assess their rulings. As much as the recent Clean Power Plan memo coverage threatens to be Will’s “Joker moment”, Callais (and the follow on items) threatens to be my own.
I regret feeling the need to be crass, and I threaten my own attempt to be seen as a serious commentator, but the Chief is smelling his own farts when he says/suggests, in response to all this, that people do not understand the Court and how it works.
I couldn't disagree more. What makes Will and Dan persuasive is exactly that they are so willing to present the best arguments even for views they disagree with.
I listened to all sorts of legal podcasts who agreed with this take and they never succeeded in convincing me that the court was being inconsistent with injunctive relief (eg injunctions in the Obama EPA rule). Will and Dan did *preciscely* because they didn't just rant and call it inconsistent and hypocritical. I believe that not only did they give the best arguments for the other side but also put it in the appropriate context.
I understand it's pretty frustrating when it feels like someone isn't recognizing something obvious but that's the price you must pay to persuade people. If they felt it was so obvious they wouldn't disagree and thumping on it makes them feel attacked. Besides, I want to learn what smart people on the other side would say.
To the contrary, I thought Prof. Baude was remarkably even handed and if anything not bashful about pointing out the inconsistencies between the court’s lack of urgency in Milligan compared to the speed of implementation of the Callais ruling.
While I agree that Purcell looks pretty random and arbitrary I worry people aren't being charitable enough to SCOTUS here. I think it's worth asking how you would have felt had the roles been reversed. Imagine SCOTUS had just upheld the traditional majority-minority understanding of the VRA and ruled that was constitutional (or even constitutionally required) and a district court had redrawn Alabama districts to *eliminate* a majority-minority district on the -- now rejected -- theory that doing so was an unconstitutional use of race.
Would you really say Purcell forces the court to leave in place the unconstitutional injunction that disenfranchised black voters over legislative objections?
Ultimately, I agree with Dan's (or was it Will) conclusion that deciding the case now was a poor choice (should have decided Callais earlier or let this wait) and Purcell looks pretty arbitrary. But I think reversing the situation reveals that so much of our intuitions here are really downstream of whether it feels like the lower court was engaged in illegal racial discrimination with it's injunction.
So yes I think Purcell is very problematic but at the same time it's one of those principles that only really seems to bite when you disagree with the underlying reasoning. Doesn't mean the court isn't wrong or don't deserve criticism but I think it shows that they are acting within the usual human imperfection of a court.
Love this new format where Dan is the moderator and Will and another smart law professor debate the substance -- keep it up!
Really liked having Pam Karlan on as a guest.
I know there were a ton of constraints--live show, guest, reading tea leaves from the shadow docket, etc.-- but I would have loved some more discussion about the mifepristone case.
I would have loved to hear a more in depth discussion about why Thomas jumps to a “criminal enterprise” when there has been no court that has actually found criminal liability and there is a long history of people arguing that comstock is unconstitutional (1st amendment problems, 5th amendment problems, vagueness, etc). I would love to hear more analysis of when Thomas jumps to labeling people part of a “criminal enterprise”. When defending merits opinions about convicted criminals i know Thomas likes to describe crimes in lurid detail, but this seems different in kind. My naive, lay, and parsimonious interpretation is that…Thomas just doesn't like abortion!
About politics it seemed that Will was trying to say the court might be going out of it's way to not play politics (I personally dont buy this) but when the discussion turned to the 5th circuit the assumption seemed go be “of course they will handle their docket politically”. Speaking of politics, why didn't the court just solicit the SG/FDA to submit an opinion? Even if that opinion was just “we are thinking about it” it would seem to be prudent to ask one of the major players with skin in the game to weigh in.
As many people smarter than me have noted: why did Alito put a clock on the original scotus stay? He seems to be the only justice that does this and Im not sure how it serves anyone. I would bet that most of the order errors were due to rushed writing…which was a problem of his own making.
With regard to the discussion on Trump admin’s win rate in the various executive power related cases, I’m glad Prof. Epps pointed to the various appropriations/impoundment related cases that mostly went in the admin’s favor on the emergency docket.
It appears that the Trump admin is about to scale up it’s efforts to push the envelope in this area with the Jan 6 slush fund, the ballroom and now the “Arc de Trump” project (see below). I hope this general area is given more attention in the blog and on the podcast
https://x.com/washingtonpost/status/2057205990408204799?s=46&t=4x2aVgfXVKCoYomBcEWaPA