February 15, 2018

"So while filing an appeal [in the DACA case] to the Ninth Circuit, the administration’s lawyers also went to the Supreme Court with a 'petition for a writ of certiorari before judgment'..."

"... a request to the justices to hear the case this spring without waiting. The Supreme Court’s rules reserve this court-jumping procedure for cases of 'imperative public importance.' Only a handful of cases has cleared that bar, including the Nixon tapes case, which effectively forced the president’s resignation and the 1981 case that ratified the agreement that ended the Iran hostage crisis. Invoking those cases, Solicitor General Francisco insists to the court that “that standard has been met here,” an assertion the plaintiffs vigorously dispute...."

Writes Linda Greenhouse in the NYT. She ends with this point, which might cut the other way:
Even if the justices find Judge Alsup’s analysis questionable and the case surpassingly important, there is an obvious reason for the court to stay its hand: the possibility, however remote, of congressional action during the months it would surely take the court to issue a decision. Recruited to a walk-on role in the other branches’ drama, the justices could well find themselves exposed on an empty stage. At least this is how it looks to me, from the outside. Will it look that way from inside the justices’ private conference? I don’t know, but I’m sure of this: The future of more than the Dreamers is at stake.
I don't see the problem of taking a case and then getting superseded by legislative action. Solving this problem with new legislation is the best solution, and the Court's expedited attention to the case might pressure Congress to get its work done more quickly. If it did, would the Justices suffer some loss of prestige — finding themselves exposed on an empty stage?

I don't see the problem. The Court wouldn't be grabbing the case because it wants to glory in the spotlight, but because the case is of "imperative public importance." If it ceases to be a case, because the dispute is resolved by actions taken in political branches, the Court would bow out.

It would not be that the Court embarrassed itself by seeing a matter of imperative public importance when there wasn't one, but that the Congress  — also concerned with matters of imperative public importance  — exercised its own power. At that point, the judicial power would play out in a normal way, applying the law to the changed facts and acknowledging whatever power Congress has.

The Solicitor General, seeking to skip over the intermediate appellate court, is perhaps overdramatizing the need for quick action, but Greenhouse is overdramatizing the consequence for the Court if the supposedly big-deal case turns into nothing.

I think she knows this, as she asks: "Will it look that way from inside the justices’ private conference?" She says she doesn't know, but I think it's pretty clear the answer is no. She purports to be sure that "The future of more than the Dreamers is at stake." That's the last line of the column. It's clear that she means that the future of the Court is at stake, but in what way?

In some utterly banal way, the future for everyone and everything is always at stake. But I guess she's warning the Court that she and the rest of the Court-following mainstream media stand ready to criticize. That shouldn't affect anyone on the Court, but it could.

59 comments:

I am Six Words or Less said...

Future at stake? Then burn witches.

-6W

Francisco D said...

For Chicken Little progressives, it's just another opportunity to dial it up to 11.

I wonder when people will get tired of their psychodrama.

sparrow said...

What's a good solution to the regular over reach of the courts? It seems to me as a layman that the constitutional constraints on the courts are few and ineffective. Is it fixable as is or would it require amendments or much worse revolution to undo?

Roe seems bullet proof even though it was imposed by elites from on high, as was gay marriage. Is the democracy just an illusion the courts are merely permitting freedom because they don't dare do more openly? If they outlawed guns for example for some it would mean war. The courts have steadily increased the power of the fed over American history and found they could do it largely unopposed.

rhhardin said...

Obviously the electoral college should also appoint the judges, if they're going to take over the presidency.

I am Six Words or Less said...

Dreamers? A judge's Die Traumdeutung, seemingly.

-6W

Michael K said...

Right now, there is a very bad bill that the NY Times loves, and which is sponsored by the usual suspects.

The lure of amnesty is just too great for politicians.

Ralph L said...

I thought Trump was the authoritarian. His DoJ is pushing to limit the power of an executive order (of his predecessor).

I am Six Words or Less said...

Dreamers dream. Illegal immigrants immigrate. Illegally.

-6W

Kristian Holvoet said...

The Supreme Courst taking the case might be the equivalent of "WTH is going on?" and then Dad's heavy footsteps coming up the stairs. I've noticed that a lot of my son's problems are resolved before I get to the room ...

Jess said...

The decision should be easy, and the decision should be reversing the lower court's opinion. This allows the current administration to enforce the current laws. That would either cause a legislative solution, or allow the legislators to sit on their hands long enough for the problem to be solved by legal actions.

Regardless of opinions, the current immigration policies by the United States are less restrictive than most developed countries, and the efforts to cater to illegal aliens is bizarre.

Earnest Prole said...

There's finally some political movement on DACA, with the President offering the opposition more than twice what they were asking for, and then the Supreme Court chooses that moment to step in and say "here, hold my beer?" Doubtful.

holdfast said...

If this stands, I have some fun ideas for new laws that Trump could invent. I don’t think Linda would like them.

tola'at sfarim said...

Isn't this precisely such an emergency? On it's face it seems like a clear interference with the executive. Daca was promulgated solely by the executive ( possibly even unconstitutionally) and now the executive is rolling it back. This would seem to be an actual constitutional crisis . But im not a lawyer, so who knows

Mike Sylwester said...

Since the election of Donald Trump, there has been an intense race between two institutions -- our Intelligence Community and our Judiciary -- to determine which will disgrace itself the most.

The Judiciary took an early lead in the race, but the appointment of Neil Gorsuch to the US Supreme Court has slowed the Judicary's self-disgracement.

Therefore the Intelligence Community has taken a commanding lead in the race.

Now, however, the Intelligence Community is being impeded, while the Judiciary seems to be getting a second wind.

The race of these two institutions to disgrace themselves the most has not ended.

Left Bank of the Charles said...

If the administration is offering some a deal on DACA to the legislative branch, where’s the imperative public importance of having DACA resolved by the judicial branch?

Unknown said...

Seeing Linda Greenhouse as anything other than a partisan hack at this point seems like willful ignorance.

Wilbur said...

At least the NYT labels this an op-ed. This crap used to pass for news reporting by Greenhouse.

Static Ping said...

When one President can create a legal framework by fiat and the succeeding President cannot reverse it because of a couple of judges with very thin reasoning, we have a Constitutional crisis. It's the sort of thing the Supreme Court is supposed to address. Linda Greenhouse almost certainly disagrees, mainly because she wants the Supreme Court to do her bidding, but we are supposed to pretend she's a serious journalist so SHHHHH.

Kevin said...

That's the last line of the column. It's clear that she means that the future of the Court is at stake, but in what way?

I thought it was clear she meant the future of the Democratic Party.

Kevin said...

When one President can create a legal framework by fiat and the succeeding President cannot reverse it because of a couple of judges with very thin reasoning, we have a Constitutional crisis.

That's the correct reason for the Court to intervene - to bring sanity back to the lower courts.

Oso Negro said...

I wonder if progressives can cognize a hypothetical future activist conservative Circuit Court that interferes with everything a progressive president wants to do because "reasons".

Michael K said...


Since the election of Donald Trump, there has been an intense race between two institutions -- our Intelligence Community and our Judiciary -- to determine which will disgrace itself the most.


I think it might be a tie.

Additionally, if you think about when everything began to break out from the headlines it would be intellectually dishonest not to note all of the FBI conspiracy revelations happened immediately after Mike Flynn signed the guilty plea. The timing appears to show White Hats within the intelligence apparatus hitting back against the DOJ and FBI for perceived injustice against Flynn.

Regardless of how you view events there’s something about the use of the Clinton-Steele Dossier within the FISA application, and the subsequent approval therein, that doesn’t pass the proverbial sniff test. If Contreras was the authorizing judge; and it seems increasingly likely he was; this puts the judge in the center of the scandal.


A tie, I'd say. Flynn may have some supporters in the intel apparatus.

Ignorance is Bliss said...

Left Bank of the Charles said...

If the administration is offering some a deal on DACA to the legislative branch, where’s the imperative public importance of having DACA resolved by the judicial branch?

DACA is not being resolved by the judicial branch. What is being resolved is if President Trump has the right to end it in the same manner in which President Obama created it ( i.e. without following the Administrative Procedures Act. )

Trump's decision to terminate the program is the landscape within which the DACA negotiations are taking place. Gutting the President's constitutional powers in this area directly effects what deal will ( or will not ) be reached.

I am Six Words or Less said...

"imperative public importance ": concerning illegal public.

-6W

Leland said...

So now the NYT is worried about a President having a Pen and a Phone. Except in this case, it is a current President rescinding a previous President's Executive Order. I think SCOTUS should take the case, and slap the Judge. If you are a Democrat, and agreed with Roberts ruling on Obamacare, then be consistent. The solution to DACA and immigration isn't an Executive Order telling CIS to not completely obey the law, and that's what Obama's Executive Order did. Trump's Executive Order, by intent, was to tell CIS to follow the law, and if Congress wants to do something, pass a new law. Apparently Roberts needs to make his point again.

Curious George said...

"Unknown said...
Seeing Linda Greenhouse as anything other than a partisan hack at this point seems like willful ignorance."

"At this point?" No. At any point. Ever.

Roy Lofquist said...

I have often heard it said that appellate decisions are binding only within the jurisdiction of the circuit. How is it that a district judge can assert national jurisdiction?

Andrew said...

Question for Ann, and any lawyers in the room: Is a Supreme Court justice allowed to respond to an article like this, either formally or informally? Is there a legal standard that prevents a response, or is it simply against custom?

I would love to see a Trump-like justice push back against media bias or misinformation. But perhaps that would do more harm than good, by removing the pretense of objectivity.

Michael said...

What is of imperative public importance is the power of the President to "take care that the laws be faithfully executed" per Article II without the interference of some random (and doubtless carefully shopped for) District Court judge. SCOTUS needs to slap these people down and re-establish the rule of law.

Ignorance is Bliss said...

Roy Lofquist said...

I have often heard it said that appellate decisions are binding only within the jurisdiction of the circuit. How is it that a district judge can assert national jurisdiction?

Appellate decisions are only binding precedent within the circuit. That affects how district judges within the circuit decide future cases. Any federal judge can issue a ruling with national consequences. They are, of course, supposed to follow existing precedent regarding standing, etc.

FIDO said...

This is to stop the mockery of some idiot Hawaiian judge making up law and freezing the government for months as Old Giddy slow walks the Supremes.

Bruce Hayden said...

“Seeing Linda Greenhouse as anything other than a partisan hack at this point seems like willful ignorance.”

And, of course, the lower court decision, no matter how bad and partisan, removes the pressure from Greenhouse’s team, and puts it on Trump, to compromise.

Owen said...

Which is worse: to allow a lower court ruling to paralyze the Executive, preventing it from the law that Congress passed? Or to "step onto an empty stage" and see that the law is faithfully executed until such time as Congress may change it?

The latter course seems to me obviously the correct one. Any other course means the Court is ducking its responsibility. In which case, why keep paying these people?

Sebastian said...

"I don't see the problem of taking a case and then getting superseded by legislative action." There you go again, addressing prog propaganda as if it were an argument made in good faith.

Even by the standards of prog activist judging and subversion of the rule of law, the courts' blocking of executive action changing prior executive action is pretty shocking.

rcocean said...

This is why I DESPISE the Nevertrumpers. They wanted Hillary to win - which would've meant a defacto Chief Justice Kagan and rule by the 5 liberals.

Result: DACA would be enshrined in the Constitution and ANY attempt to enforce the immigration laws would've been stopped by Judicial Fiat. It may end up that way anyway - but we all know how the 4 liberals will vote on this before it even goes to the SCOTUS.

The Judiciary has gone crazy in its attempt to stop Trump. Our only hope is the SCOTUS will see reason.

Darkisland said...

Is President Trump actually doing anything to kill DACA?

My understanding is that all he needs to do is nothing and it expires next month.

So is the court actually requiring him to do something to prevent expiration?

Seems to me that he could say "president Obama is the smartest man in the world. Who am I to disagree with him on expiration of DACA? I'll just stand pat.

John Henry

mccullough said...

This isn’t a column. It’s an open letter from Greenhouse to John Roberts. Roberts caved in the Obamacare case and a few years later Trump is president. Perhaps Roberts didn’t learn his lesson to stay out of politics. He’s just a lawyer. He’s not that smart

Ann Althouse said...

"I have often heard it said that appellate decisions are binding only within the jurisdiction of the circuit. How is it that a district judge can assert national jurisdiction?"

Because he has jurisdiction over the case and the defendant is subject to the court's judgment. If there were another case and the question were about following the precedent set in the early case, then you'd say it was binding only in that jurisdiction. Note the need for a Supreme Court decision so it could be binding to all of the circuits.

"Question for Ann, and any lawyers in the room: Is a Supreme Court justice allowed to respond to an article like this, either formally or informally? Is there a legal standard that prevents a response, or is it simply against custom?"

The SCt Justices don't talk about pending cases, by their own practice, and there's pressure on them to recuse themselves if they even approach such a thing. I think I remember Scalia once recusing himself because of something he said, and then he was often pushed to recuse himself.

"I would love to see a Trump-like justice push back against media bias or misinformation. But perhaps that would do more harm than good, by removing the pretense of objectivity."

They find some ways. There's an art to it... always involving portraying themselves as neutral.

Rigelsen said...

The issue that the SCOTUS needs to urgently handle is how much overt politicization the third branch can stand and still maintain its role as Interpreter of the Law. While judges making rulings based on their political priorities is nothing new, the “law may say the president can do X, but Trump!” breaks ground that the SCOTUS and anyone with respect for the Article 3 branch should feel uncomfortable standing on.

They should not only take the case but provide at least dicta admonishing judges to retain even a tenuous link to the letter of the Law.

n.n said...

The Constitution, the People, and unPlanned Americans are at risk.

Not to mention the victims of social justice adventures and other first-order forcings of mass emigration.

Perhaps another round of prosecutorial discretion and keeping everyone, Americans, immigrants, and aliens, in limbo.

Larvell said...

Shorter Greenhouse: I'm concerned the Supreme Court will side with the administration, but I'm not concerned about the 9th Circuit doing so.

Larvell said...

"Is a Supreme Court justice allowed to respond to an article like this, either formally or informally? Is there a legal standard that prevents a response, or is it simply against custom?"

A Supreme Court justice, if she wanted to, could take out a full-page ad saying the president is an inhabitant of cloudcuckooland, and, short of impeachment, there's nothing anyone could do about it.

Mike Sylwester said...

Imagine that Hillary Clinton had been elected President and then had appointed Scalia's replacement on the US Supreme Court.

If that had happened, then all these crazy judges would be being upheld by the Supreme Court.

AMDG said...

The Supreme Court must end this abhorrent behavior by hack judges ASAP. If allowed to stand it is another sign that the Republic is on its deathbed. Other signs include:

The refusal of one party to accept the results of presidential elections. 2016 was the third election that large numbers of Democrats refused to accept. At some point a losing Democrat incumbent will refuse to leave office and will do so with the support of the MSM and bureaucracy.

The weoponizing of the bureaucracy to be used against political opponents when in power and as a fifth column when out of power.

Martin said...

Greenhouse is just stretching to find a way to support the position she has adopted for emotional reasons. I am not using "emotional" as pejorative, you could say "policy" reasons--but not legal analysis.

If the Administration believes and can demonstrate to the satisfaction of the court that allowing people from targeted countries and groups into the country present a clear and present danger, it would appear they meet the standard. If not, not.

I would think the Court would be more embarrassed by a terror attack carried out by someone whom the EO would otherwise have excluded, than Congress later passing a law that is in some way contrary to the decision they made based on the law as it then was.

But, when Trump Derangement is in play, logic ain't what it used to be.

Rabel said...

"the months it would surely take the court to issue a decision"

Maybe, but or the two previous cases Greenhouse cited, Nixon took less than two months from filing to decision and Iran took less than one.

MaxedOutMama said...

Well, no one has to see this the way I see it, but I think if Scalia were still alive he would rhetorically pack this lower court judgment into a tennis ball and then swat it around the Supreme Court with amazing vigor until it splintered into ignominious fragments of illogic.

I believe that this is a powers case, and that SC would be well advised to take it and deal with the situation before things get even more out of hand.

For a court to overturn an executive decision that overturned a previous executive decision (which was bound to end up in court) as having no public purpose smacks of several things, but mostly of judicial overreach and interference with the political process. The court system has expansive powers in our evolved political system of checks and powers, and the key to keeping that power is responsible use of such power.

The reason that I see this as a powers question is that one can either see the previous executive action as a permissible use of executive power or as an encroachment on Congressional power. If one assumes the first, than to claim that a court may decide that one Executive may do another may not undo is judicial overreach in the extreme - the court is arrogating Executive power to itself. If one assumes the second, then WTF? We find ourselves in "Really, dude?" territory.

The arguments advanced to support the "no public purpose" stuff don't pass muster. It is by definition the right of the Executive to decide what actions are constitutional uses of Executive power. If the Executive exceeds its power by action, the courts by definition have the right to say so. But if the Executive decides not to use some power that the court thinks it may rightly use, the Court does not have the right to force the Executive to act. That is an assumption of Executive power. By definition the right to act also comprises the right not to act.

If the Supreme Court is not willing to restrain such a judicial seizure of power, then I suspect the judicial branch's powers will be constrained by legislation and popular fiat. Very few people in this country REALLY want to be governed by a board of unelected individuals with lifetime tenure.

At this point, I am nearing the point at which I would support amending the Constitution to knock back some of this judicial overreach, and I'm probably not the only one. I wonder if altering lower court terms to a ten-year term, renewable upon the assent of the Executive with consent by the House of Representatives, would not fix a lot of ills? I don't want either the legislative or the executive branches to escape judicial review, but I also don't think that what we have seen in the last year is viable - the courts are now the branch that needs to stopped from destroying the constitutional framework.

Jupiter said...

"I don't see the problem."

Here, let me help you out;

"Writes Linda Greenhouse in the NYT."

Anonymous said...

I understand an agree with Greenhouse's concerns. So I offer a simple plan for SC action that should deal with the whole "empty stage" problem:

The Supreme Court should announce a summary reversal of the ruling, stating "we don't need to be briefed on this issue, because it is a solid matter of law that no Executive Order can ever bind a future President's Executive Orders".

This would allow everyone to negotiate in a clear understanding of the situation, and keep the Supreme Court from being upstaged by anything Congress and the President agree to.

win-win!

Andrew said...

Thanks for answering my question, Ann.

MaxedOutMama said...

rhhardin wrote "Obviously the electoral college should also appoint the judges, if they're going to take over the presidency."

In this situation, first the Executive decided to assume a power specifically granted to Congress, and then the Judicial branch decided the Executive could not reverse the error. It is facially bizarre.

I would say if the SC does not intervene then the people need to intervene to overturn lifetime tenure for the lower judges, and probably impose a 20 year term limit for all new Supreme Court judges. I've had it.

Big Mike said...

That shouldn't affect anyone on the Court, but it could.

Just the less-than-wise Latina.

Yancey Ward said...

Greenhouse is transparent- no question. I think SCOTUS will deny the petition to jump over the DC Circuit, but I also think they should take the petition.

JaimeRoberto said...

Trump lost a lot of leverage with regards to DACA and immigration with the recent court decision. Greenhouse is afraid that Trump might get that leverage back by way of the Supreme Court. She's using her platform at the Times to lobby for her preferred outcome.

Danno said...

In all situations, an Althouse trumps a Greenhouse.

Richard Dolan said...

Greenhouse has her agenda, but it's unlikely to make any difference in what the SCOTUS justices do. It's easy to see them granting a stay of the lower court injunction until such time as a petition for certiorari is presented and acted on by SCOTUS following a decision by the DC Circuit. If the lower court injunction is stayed, no need for SCOTUS to get into the act now. That's also essentially what SCOTUS has done on the other immigration cases, challenging the travel ban.

Mark said...

It is imperative. It is imperative TODAY -- it was imperative a year ago -- to smack down hard all these district court judges that are abusing their power in ignoring the law and imposing their own dictates not only in their own districts, but asserting power over the entire country.

cubanbob said...

The Supreme Court should announce a summary reversal of the ruling, stating "we don't need to be briefed on this issue, because it is a solid matter of law that no Executive Order can ever bind a future President's Executive Orders".

This is so obvious that the Supreme Court should make the announcement immediately and reprimand the lower courts for violating such a basic premise of law. Otherwise the next round of this judge made legislation will be that Congress can't change, rescind or otherwise modify any law a previous Congress passed that a district judge doesn't want modified or rescinded.

An honest district court should have dismissed the complaint on the spot.

DEEBEE said...

Look at all the rights discovered in the constitution. The court showed no such concern. Heck, I am sure Greenhouse took out her broom to sweep the path in front of the hurling curling stone of a SCOTUS. Why this reticence now?