This analysis completely ignores why there have been so many injunctions this year, and the purpose of injunctions. I'd say it's baffling, if I hadn't begun to finally understand that people in law see all this stuff as a silly intellectual game rather than what they really are - matters of life and death.
I'm not sure this discussion really addresses why the court wasn't interested in this when SG Prelogar was trying to repeated tee up this issue and was ignored.
Also there doesn't seem to be a good reason that the court couldn't have also decided the merits of CASA as well.
As many defenders of the CASA decision seem to be doing, it really looks like you are missing the forest for the trees. Any single decision can almost always be defended and explained, but there seems to be a pattern in the cases they choose, the way they choose to resolve them, the activity on the shadow docket (which is a great term since they refuse to write or explain anything there!), and their selected modes of analysis. I've heard you time and again say that you think it's good when people on the court explain themselves because it lets you know their thinking and helps you predict how they might think about issues in the future. I am, as yet, unconvinced that any of that analysis actually does a better job of prediction than partisan alignment (on cases where there is a clear partisan wedge).
Thanks for addressing this. I suspect your explanation will still be unsatisfying to some. The question is “why now,” and you essentially explain “because it didn’t happen before.” All 100% correct, but in a deeper sense not really answering the question.
Timing aside, the fact that they decided to address the issue by striking down probably the least controversial nationwide injunction in history was a head-scratcher.
That seemed to be a message: The district courts can’t issue nationwide injunctions even when it comes to the most slap-you-in-the-face obvious constitutional questions.
If the President signed an Executive Order that said “Black people can’t vote, and Democrats have to pay a poll tax,” would every black person of voting age and every Democrat have to go get their own personal injunction? The majority opinion sure seems to indicate as much.
Unsurprisingly, those are very strong arguments from Prof. Bray.
If, on remand, the plaintiffs end up getting the functional equivalent of a universal injunction—either through a finding that a State’s injunction needs to be nationwide to afford “complete” relief, or through a 23(b)(2) class—then I really won’t have a problem with this ruling.
But if the Court nixes those routes as well and lets this EO go into effect anywhere—a la Alito’s concurrence—then this decision is an abomination.
Don’t strain your back pulling those punches on Kagan. You supply what might have been a reasonable explanation if she had put it in a separate dissent.
This analysis completely ignores why there have been so many injunctions this year, and the purpose of injunctions. I'd say it's baffling, if I hadn't begun to finally understand that people in law see all this stuff as a silly intellectual game rather than what they really are - matters of life and death.
I'm not sure this discussion really addresses why the court wasn't interested in this when SG Prelogar was trying to repeated tee up this issue and was ignored.
Also there doesn't seem to be a good reason that the court couldn't have also decided the merits of CASA as well.
As many defenders of the CASA decision seem to be doing, it really looks like you are missing the forest for the trees. Any single decision can almost always be defended and explained, but there seems to be a pattern in the cases they choose, the way they choose to resolve them, the activity on the shadow docket (which is a great term since they refuse to write or explain anything there!), and their selected modes of analysis. I've heard you time and again say that you think it's good when people on the court explain themselves because it lets you know their thinking and helps you predict how they might think about issues in the future. I am, as yet, unconvinced that any of that analysis actually does a better job of prediction than partisan alignment (on cases where there is a clear partisan wedge).
Thanks for addressing this. I suspect your explanation will still be unsatisfying to some. The question is “why now,” and you essentially explain “because it didn’t happen before.” All 100% correct, but in a deeper sense not really answering the question.
Timing aside, the fact that they decided to address the issue by striking down probably the least controversial nationwide injunction in history was a head-scratcher.
That seemed to be a message: The district courts can’t issue nationwide injunctions even when it comes to the most slap-you-in-the-face obvious constitutional questions.
If the President signed an Executive Order that said “Black people can’t vote, and Democrats have to pay a poll tax,” would every black person of voting age and every Democrat have to go get their own personal injunction? The majority opinion sure seems to indicate as much.
What am I missing?
Sam Bray had an earlier post arguing that the illegality of the executive order makes these cases an especially good vehicle for this issue: https://blog.dividedargument.com/p/universal-relief-and-the-birthright
Unsurprisingly, those are very strong arguments from Prof. Bray.
If, on remand, the plaintiffs end up getting the functional equivalent of a universal injunction—either through a finding that a State’s injunction needs to be nationwide to afford “complete” relief, or through a 23(b)(2) class—then I really won’t have a problem with this ruling.
But if the Court nixes those routes as well and lets this EO go into effect anywhere—a la Alito’s concurrence—then this decision is an abomination.
Don’t strain your back pulling those punches on Kagan. You supply what might have been a reasonable explanation if she had put it in a separate dissent.