"These proceedings improperly threaten an open-ended, freewheeling inquiry into executive branch decision-making on matters of national security..."

"... that implicate ongoing military and diplomatic initiatives. This judicial intrusion into the autonomy of a coequal department cannot be remedied by a later appeal from a contempt conviction."

Wrote Judge Neomi Rao, for the majority, quoted in "Appeals Court Ends Contempt Inquiry Into Deportation Flights/A federal judge’s nearly yearlong effort to investigate whether the Trump administration had violated his order had become a point of contention in the president’s battles with the courts" (NYT): 

Here's the opinion, from the District of Columbia court. The judge below was James E. Boasberg. 

"President Donald Trump plans to sit in on Wednesday’s Supreme Court hearing on birthright citizenship, making him the first sitting president to attend oral arguments at the nation’s highest court."

AP reports.

It’s not the first time Trump has considered showing up for a high court hearing. Last year, Trump said that he badly wanted to attend a hearing on whether he overstepped federal law with his sweeping tariffs, but he decided against it, saying it would have been a distraction....

“I’m going,” Trump said, when the upcoming arguments in the birthright citizenship case were mentioned. To a follow-up question clarifying that he planned to go in person, Trump said, “I think so, I do believe.”

He sat in court when they were trying him for those crimes they convicted him of. He knows how to sit in court.

From the transcript of the press conference:

"You have a President who has sworn to get tough on the border and get tough on crime expelling from the United States — by his description — hundreds of criminal gang members."

"And so that's an easy narrative to understand. You know, who in the world wouldn't want a bunch of criminal gang members kicked out of the country? And what kind of crazy liberal judge would order those gang members back into America? And if you watch conservative media, that's the argument they're putting out. You know, this judge wants these gang members roaming around the streets, attacking your family and loved ones. You know, obviously this is terrain the Trump administration chose carefully to fight on, and they believe in the court of public opinion, most people will be on their side of this issue."

Says Luke Broadwater, in "Trump’s Showdown With the Courts," the new episode of the NYT podcast "The Daily."

The court of public opinion is part of the system of checks and balances. In the long run, the courts need public support. The law needs public support. The Chief Justice can assert that judges are neutral arbiters, just doing their job in a meticulously professional way, but if people don't believe that, it's not going to work. And if it isn't true, should you hope that people will nevertheless believe, because without the courts carrying out their traditional rituals with solemnity we're lost?

"At some point, presumably, the justices will draw the line...."

"In any consequential ruling, Chief Justice Roberts will likely be tempted to narrow his reasoning, soften his tone.... For Chief Justice Roberts, unanimity will be hard — even impossible — to achieve in most cases concerning Mr. Trump’s actions as president... Of course, Mr. Trump might defy the court.... Without the support of federal marshals, who answer to Mr. Trump’s attorney general, Pam Bondi, the court cannot enforce its order.... The court will stand alone, abandoned; and Chief Justice Roberts, it is safe to assume, will not escalate a conflict his institution has already lost. He will, however, have one last tool in his arsenal: his voice.... If Mr. Trump flouts a court ruling, the nation will need its chief justice to explain what is happening — and why the executive branch, for all its prerogatives, must be bound by the Constitution...."

Writes Jeff Shesol, in "John Roberts Is on a Collision Course With Trump" (NYT).

"The Democrats... they're just yelling wolf... they're yelling wolf... they're screaming and yelling that there's a constitutional crisis..."

"Let me be very clear as a historian of the Constitution there has been one — one! — O-N-E — one! — count it:  one — one constitutional crisis in our history that our Constitution was incapable of solving and that, of course, was slavery...  The Constitution was not capable of resolving that issue without a war so we had indeed a constitutional crisis.... Compare that to what's going on today. If you listen to... Chuck Schumer you think we're going have a civil war. No! Listen to Donald Trump.... He said I will comply with every court order and then I will appeal it. And he didn't say this but obviously his lawyers... will seek a stay.... You can't allow hundreds and hundreds and hundreds of federal judges sitting in obscure parts of the country somewhere... in Rhode Island or somewhere in the south of  California to issue an injunction that covers everybody in the United States.... Democrats! Democrats! Don't yell wolf!... Don't tell us that there is no political recourse..... We have  three independent branches of the government — not a fourth. The bureaucracy is not in the Constitution.... It's very complicated. And president Trump for the first time has said let's look hard at these bureaucracies.... If you want to complain about what the administration is doing, that's your right...  but don't exaggerate...."

Says Alan Dershowitz in his excellent new podcast.

And Dershowitz thinks Trump is not necessarily wrong on the birthright citizenship question. He said "I'd love to argue it in front of the United States Supreme Court. I don't know how it would come out." That willingness has a limitation:

"In short, change needs to happen through the established channels of litigation in, and obedience to, the courts."

That's a vision of judicial supremacy seen in the NYT Editorial Board's "Trump Dares the Courts to Stop Him" (which I think was originally titled, using yesterday's phrase du jour, "Trump's Constitutional Crisis").

Did I rip that sentence out of context? Yes, but I gave you a gift link, so you can put it back.

The role of the judiciary is not to determine the meaning of every provision of law that is opined upon by someone in another branch of government, but only to say what the law is when that is needed to resolve a real dispute between adverse parties and only if the court has jurisdiction. The President is independently obliged to follow the law and must figure out what it is as he goes along. The courts don't answer questions of law as they happen to arise as the President does his work. This is basic separation of powers.

I note that the judge in the "Fork in the Road" case just found that the plaintiffs lacked standing and dissolved the temporary restraining order. He gave no advice on the legality of Trump's "fork" offer, because he lacked the power to do so. 

As the NYT tells us — in "Trump’s Federal Resignation Program Moves Ahead After Court Win/With a judge’s assent, the Trump administration moved to take next steps in the program and close it to new entrants" — Trump has now closed the offer.

"What’s unspoken in Vance’s tweet is the well-established power of courts to police the limits of that discretion, i.e., to decide which exercises of power by the executive branch are, in fact, 'legitimate.'"

"Thus, there are examples of courts interfering in military operations—granting habeas petitions to individuals in military custody; blocking military commission prosecutions; and even, during the Biden administration, blocking the military’s COVID vaccination mandate as applied to certain active-duty troops. There’s even a single example of a federal judge blocking an active military operation—Judge Judd’s July 1973 injunction against President Nixon’s bombing of Cambodia.... That ruling might have been wrong; it certainly wasn’t 'illegal.'... calling a judicial decision 'illegal' certainly sounds like a basis for refusing to abide by it—especially if one believes... that such rulings are 'a violation of the separation of powers.' The proper remedy, of course, is to appeal a decision you believe is wrong. And if the Supreme Court, the federal court of last resort, reaches the 'wrong' decision, there are legal ways to seek to overturn it; refusing to follow it isn’t one of them. But the reality is that there is no history or tradition in this country of presidents ignoring judicial rulings on the ground that they are 'illegal.'..."

Writes lawprof Steve Vladek in "What Vice President Vance Did—and Didn't—Say About Judicial Power" (Substack).

Here's the JD Vance tweet under discussion:

If a judge tried to tell a general how to conduct a military operation, that would be illegal.

If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that's also illegal.

Judges aren't allowed to control the executive's legitimate power.

"A federal judge early Saturday temporarily restricted access by Elon Musk’s government efficiency program to the Treasury Department’s payment and data systems..."

"... saying there was a risk of 'irreparable harm.' The Trump administration’s new policy of allowing political appointees and 'special government employees' access to these systems, which contain highly sensitive information such as bank details, heightens the risk of leaks and of the systems becoming more vulnerable than before to hacking, U.S. District Judge Paul A. Engelmayer said in an emergency order.... The order came in response to a lawsuit filed on Friday by Letitia James of New York along with 18 other Democratic state attorneys general, charging that when Mr. Trump had given Mr. Musk the run of government computer systems, he had breached protections enshrined in the Constitution and 'failed to faithfully execute the laws enacted by Congress.'... The Constitution says that a president 'shall take Care that the Laws be faithfully executed.'"

From "Judge Halts Access to Treasury Payment Systems by Elon Musk’s Team/The order came in response to a lawsuit filed by 19 attorneys general accusing the president of failing to faithfully execute the nation’s laws when he let DOGE comb through federal computer systems" (NYT).

Is the federal judge taking the position that in the name of enforcing the Take Care Clause, it is the role of the judiciary to oversee whatever the President does with the executive power that the Constitution vests in him?

Is there some extra-legal notion that the federal judge should seize the power to put on the brakes when a President with questionable judgment is moving too fast? (I'm hearing some lawprofs singing that tune.)

ADDED: Here is the request for a temporary restraining order, and here is the judge's order.

How high is your horse?

I'd have thought the expression "up on your high horse" had gone out of style. Who's riding horses these days? We may feel irked when other people seem to be looking down on us, but — in the metaphor in our head — is a horse part of the picture?

But yesterday, I encountered — and blogged about — a NYT column by Nicholas Kristof, "On Their High Horse, Too Many Liberals Disdain Oliver Anthony" (NYT).

And now, this morning, I stumble into another high horse. I'm reading "Disqualify Trump in 2024? It’s clear what the NC Supreme Court would say" by North Carolina lawprof Gene Nichol, who takes the position that everyone knows the North Carolina Supreme Court won't go along with this theory about Section 3 of the 14th Amendment.

Because we all know they’re politicians first and judges, at best, an exceedingly distant second. We know it. They know it. They just swear otherwise. And they swear from a very high, very hypocritical, horse. You would think the words would turn to ashes in their mouths. They wear cool black robes, no doubt. But as the patriarch of TV’s “Succession” puts it, they “are not serious people.”

A "hinge moment."

Today is a hinge moment in the political history of Wisconsin: we go from a far-right state Supreme Court majority to a progressive one. At 5 pm, Janet Protasiewicz—who won the April 4 election—will be sworn in. The path here is a testament to the power of grit. 🧵 pic.twitter.com/JQfNU1V6ez

— Ben Wikler (@benwikler) August 1, 2023

Is "hinge moment" becoming a common expression? I like that it seems like a replacement for "inflection point," which has always annoyed me.

I can't remember ever seeing the term "judicial activist" to refer to anyone other than a judge supposedly engaging in "judicial activism."

But here's The Washington Post using the term to refer to a political activist who concerns himself with the judiciary: "Judicial activist directed fees to Clarence Thomas’s wife, urged ‘no mention of Ginni’/Leonard Leo told GOP pollster Kellyanne Conway to bill nonprofit, then use money to pay spouse of Supreme Court justice."*

Who's Leonard Leo? The first sentence of the piece calls him "Conservative judicial activist Leonard Leo," and the third paragraph calls him "a key figure in a network of nonprofits that has worked to support the nominations of conservative judges." He's not a judge, and he's not, at least not openly, a proponent of judicial activism.

In the 18-year archive of this blog, Leo's name has come up exactly once, back in 2006, when the NYT invited various legal writers to offer questions that could be asked of Samuel Alito at his confirmation hearing. I wrote:

Leonard A. Leo, the executive vice president of the Federalist Society, asks the one that Robert Bork gave his most damaging answer to: "why do you want to be on the Supreme Court?" (Bork said he thought it would be "an intellectual feast.")

"Until about a decade ago, though, elections for state supreme courts were usually only the province of wonky election nerds and those in the legal profession."

"But things changed in the early 2010s. 'There was a recognition, especially on the right, that these courts were major players in high-profile policy fights,' said Douglas Keith, an expert on state courts at the Brennan Center. Republicans had tremendous success in gubernatorial and state-legislative elections, but the laws they passed still encountered obstacles in state courts. As a result, outside groups like the Republican State Leadership Committee started spending serious money on judicial elections.... As the 2020 redistricting cycle loomed, conservative and, increasingly, liberal groups zeroed in on state supreme courts as a key battleground.... The U.S. Supreme Court has also raised the stakes of state supreme court elections by delegating major legal questions to the states over the past few years. For instance, the 2019 case Rucho v. Common Cause declared that only state, not federal, courts could decide partisan gerrymandering questions. And now that Dobbs v. Jackson Women’s Health Organization has ended the national right to abortion, the power to re-legalize abortion in states that have banned it ultimately rests with state supreme courts. Indeed, abortion and redistricting are both at stake in this year’s Wisconsin Supreme Court election...."

From "How Did State Supreme Court Races Get So Expensive?/Wisconsin's is only the latest example" (FiveThirtyEight).

The Supreme Court is not "delegating major legal questions to the states." The delegating is done by the Constitution, and "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The Court is merely — officially — only figuring out what questions are determined by federal law and declining to exercise power it doesn't have. That's either judicial restraint or judicial activism, depending on some mysterious blend of your political predilections, credulity, and hopes and dreams.

"[A]fter the flurry of hard-right rulings this June, many professors had their 'own personal grieving period.'"

"But they quickly turned toward 'grappling with how we teach our students' to understand the Supreme Court’s reactionary turn.... A professor must say what the court claims it’s doing, then explain what it is actually doing, which is often something completely different. This technique can disillusion students, leading them to ask why they’re bothering to learn rules that can change at any moment.... Students confront a legal system in a crisis of legitimacy led by an extreme and arrogant court. Still, they must slog on, most gathering substantial debt as they go, pretending that 'law' is something different from politics, a higher realm of reason and rationality where the best arguments prevail.... My father, Nat Stern, retired from a 41-year career at Florida State University College of Law in May.... When I asked him why he decided to retire, he told me that he had no desire to explain the Supreme Court’s conservative revolution as the product of law and reason rather than politics and power.... 'For the bulk of my career,' he said, 'I’ve felt I could fairly explain rulings and opinions that I don’t endorse because they rested on coherent and plausible—if to me unconvincing—grounds. In recent years, though, I’ve increasingly struggled to present new holdings as the product of dispassionate legal reasoning rather than personal agendas.'"

Writes Mark Joseph Stern in "The Supreme Court Is Blowing Up Law School, Too/Inside the growing furor among professors who have had enough" (Slate). 

I got there via David Bernstein at Instapundit, who says: "We all know that left-learning lawprofs would be dancing in the streets if SCOTUS were equally aggressive to the left. And indeed, while Stern portrays discontent with the Court as a question of professional standards rather than ideology, he does not manage to find a single right-leaning professor to quote in his article."

I remember just before the 2016 election, when I was making my decision to retire.

"I was surprised that the dissenters never tried to defend the right to abortion and never try and offer an alternative ground. They relied entirely on stare decisis."

Said Larry Kramer, in "Liberals Need a Clearer Vision of the Constitution. Here’s What It Could Look Like. The legal scholar Larry Kramer on why the left’s embrace of judicial supremacy was a mistake" (NYT). 

"Regardless of what you or I may think of the circumstances of this nomination, [Amy Coney] Barrett is highly qualified to serve on the Supreme Court."

"I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions. Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them. I got to know Barrett more than 20 years ago when we clerked at the Supreme Court during the 1998-99 term. Of the thirty-some clerks that year... Barrett stood out. Measured subjectively and unscientifically by pure legal acumen, she was one of the two strongest lawyers. The other was Jenny Martinez, now dean of the Stanford Law School. When assigned to work on an extremely complex, difficult case, especially one involving a hard-to-comprehend statutory scheme, I would first go to Barrett to explain it to me. Then I would go to Martinez to tell me what I should think about it."

Writes Harvard lawprof Noah Feldman (at Bloomberg). I don't really believe Feldman needed Barrett to explain anything or Martinez to know what to think. The discussion of the 2 women is not really about Feldman's help-seeking but about 2 different approaches to statutory interpretation. Barrett (clerking for Scalia) found the meaning in the text "without reference to legislative history or the aims and context of the statute," and  Martinez (clerking for Breyer) would "pragmatically engag[e] the question of what a statute is actually trying to do."

Feldman also vouches for Barrett's character:

To add to her merits, Barrett is a sincere, lovely person. I never heard her utter a word that wasn’t thoughtful and kind — including in the heat of real disagreement about important subjects. She will be an ideal colleague. I don’t really believe in “judicial temperament,” because some of the greatest justices were irascible, difficult and mercurial. But if you do believe in an ideal judicial temperament of calm and decorum, rest assured that Barrett has it.

Reading between the lines, I see a recommendation to the Democratic Senators that they adopt a temperament of calm and decorum — and not because civility is good but because incivility will bite them in the ass. I presume the sincere and lovely Amy will have her 7 children lined up right behind her. Feldman is trying to bestow permission on the Democratic Senators to be very kindly toward Barrett, even though the RBG mourners are screaming for blood.

ADDED: Maybe you, like me, were irritated by the phrase "what a statute is actually trying to do." A statute has no mind. It is not trying to do anything. Human beings have minds and they wrote the statute. What legislators were trying to do when they wrote it includes what they could have put in the text and did not. Their legitimate power does not extend to things they'd also want but neglected or chose not to put in the text that was voted on. Feldman makes it sound more sophisticated for a judge to supply what was left out of the text, but the Scalia position on that is that it's illegitimate for judges to enforce what they imagine the legislators were "actually trying to do."

"All the hysteria about a Ginsburg replacement stems from the fact that our political system is dominated by an allegedly nonpolitical Court that actually decides many political issues."

"And that Court is small (enough so that a single retirement can throw things into disarray) and unrepresentative of America at large. In an earlier article, responding to Democrats’ plans to 'pack' the Court with several additional justices whenever they get control back, I suggested going a step further, and add fifty new justices, one each to be appointed by every states' governor.... Under my proposal, the death or retirement of a single justice wouldn’t be much more than a blip in the news, instead of something serious enough that there are people talking about violence in the streets. A Supreme Court composed of 59 justices wouldn’t have the mystique of the current Court — you might believe in 9 Platonic Guardians, but the notion of 59 such is absurd. And since governors would presumably select people from their own states, it would bring a substantial increase in diversity to the Court."

Writes Glenn Reynolds at USA Today.

"Appeals court orders judge to grant DOJ motion to dismiss Flynn case."

The Washington Examiner reports.

From the opinion (which you can read in full at the link):

Although Rule 48 requires “leave of court” before dismissing charges, “decisions to dismiss pending criminal charges no less than decisions to initiate charges and to identify which charges to bring lie squarely within the ken of prosecutorial discretion."... "To that end, the Supreme Court has declined to construe Rule 48(a)’s ‘leave of court’ requirement to confer any substantial role for courts in the determination whether to dismiss charges."... More specifically, “[t]he principal object of the ‘leave of court' requirement is to protect a defendant against prosecutorial harassment when the Government moves to dismiss an indictment over the defendant’s objection.”... Rule 48 thus “gives no power to a district court to deny a prosecutor’s motion to dismiss charges based on a disagreement with the prosecution's exercise of charging authority."

"The April 2 election is for the seat held for 43 years by Justice Shirley Abrahamson, one of the [Wisconsin Supreme C]ourt’s three liberals."

"If Neubauer wins, that could set the stage for liberals to gain control of the court next year, when conservative Justice Dan Kelly, like [her opponent Brian] Hagedorn an appointee of Walker, is set to face voters. But all of this depends on whether Neubauer is in fact a liberal. And that is something she absolutely refuses to admit. In fact, Neubauer, who has personal and family ties to Democrats (her husband, Jeff, is the former state party chair; her daughter, Greta, is a Democratic lawmaker), has run one of the most opaque campaigns for state Supreme Court in recent years. At the candidates’ March 15 debate before the State Bar of Wisconsin, she ducked questions, endlessly repeated her campaign talking points — that she is 'fair, impartial and independent' and backed by 345 past and present Wisconsin judges, way more than Hagedorn — and falsely claimed that the Code of Judicial Conduct prohibited her from commenting on any issue that may come before the court. (Other candidates have gone much further in answering questions about where they stand, without any knocks on the door by the Judicial Police.)"

Wrote Bill Lueders in Isthmus. Was he concerned that the "liberal" branding was needed to get out the Madison vote for Neubauer? It's completely typical for Supreme Court candidates to portray themselves as utterly neutral and devoted to the law, because that is their apt understanding of how most voters think about the role of the judge. Hagedorn also takes this neutral approach, and Lueders doesn't like that either:

Hagedorn, 41, claims that what he thinks about anything is irrelevant to his role as a judge, and that anyone who brings it up is attacking his religion. It’s a remarkably dishonest contention, especially given that he has in the past personally urged people to back the election of a conservative justice to preserve Walker’s attack on public employee unions and other explicitly political reasons.

"To preserve Walker’s attack on public employee unions" = to refrain from overturning the work of the democratically elected branches of government.

Basically, the irritating problem is that the popular conception of the role of judges — as neutral and not activist — overlaps much more comfortably with what conservative judges do, and that makes it harder to run as the liberal candidate, especially when things depend on getting out the vote and it's a low-profile election, like today's.

"The conservative Roberts majority will no doubt frame future rulings on voting restrictions and gerrymandering as solidly grounded in law and the Constitution."

"And yet it could become increasingly difficult to believe the court is doing law, not politics, if a conservative majority of Republican appointees issued decision after decision that had the effect of helping Republican candidates win elections.... Elections are the only obvious, if indirect, way for the public to express its discontent with a wayward Supreme Court. Maybe a mobilized Democratic Party can somehow overcome all the barriers of Republican entrenchment.... If a new dominant national alliance emerges to the left of the Roberts Court, maybe the justices will find a way to become a part of it. Or the Republicans could remain in power because they make a persuasive case to the voters, not because the court aids in eroding the democratic process...."

From "When the Supreme Court Lurches Right/What happens when the Supreme Court becomes significantly more conservative than the public?" by Emily Bazelon in the NYT.

I have little confidence that my excerpt will be comprehensible to anyone. One key is to understand that there's a theory that the judiciary is really a political branch, and that for all its posing as operating in a completely different mode — interpreting legal texts — it's really tracking democratic preferences. There's a concern that the new majority on the Court will permit redistricting and various voting law that will help Republicans win elections, putting them in control of the overtly political branches of government. And there's an idea that the Court will notice that those supposedly democratic branches are not properly majoritarian anymore and that distortion will motivate the Court — which is covertly political — to step into the role of representing what it knows to be the true majority.

I'm trying to put the argument in blunter language than Bazelon is using. I see that Bazelon is now the Truman Capote fellow for Creative Writing and Law at Yale Law School, which sounds like a fantastic position. But I wonder, what would Truman Capote write?

ADDED: What exactly is "creative writing"? Wikipedia says:

Creative writing is any writing that goes outside the bounds of normal professional, journalistic, academic, or technical forms of literature.... Both fictional and non-fictional works fall into this category....

I'm all for jumping outside the bounds of "normal" legal writing, though I don't like the term "creative writing." First, "creative" is way overused in our culture. Everyone's child is so creative, and young people accept low-paying jobs that are portrayed as "creative." Second, if you're writing nonfiction, you shouldn't be "creating" your facts. You want to be creative in what facts you pursue and how you present them, but why invite the confusion? The use of Truman Capote's name in connection with writing about law is also interestingly confusing, since Capote — for all his excellent writing style — was known to have deviated from rigorous truthtelling in his nonfiction work, "In Cold Blood." From Wikipedia:

Writing in Esquire in 1966, Phillip K. Tompkins noted factual discrepancies after he traveled to Kansas and spoke to some of the same people interviewed by Capote... Tompkins concluded:

Capote has, in short, achieved a work of art. He has told exceedingly well a tale of high terror in his own way. But, despite the brilliance of his self-publicizing efforts, he has made both a tactical and a moral error that will hurt him in the short run. By insisting that "every word" of his book is true he has made himself vulnerable to those readers who are prepared to examine seriously such a sweeping claim.

True crime writer Jack Olsen also commented on the fabrications:

"I recognized it as a work of art, but I know fakery when I see it... Capote completely fabricated quotes and whole scenes.... That book did two things. It made true crime an interesting, successful, commercial genre, but it also began the process of tearing it down. I blew the whistle in my own weak way. I'd only published a couple of books at that time – but since it was such a superbly written book, nobody wanted to hear about it."

Not feeling the Burns.

"Michael Screnock, Rebecca Dallet advance in SCOWIS primary."

Tim Burns, who took the unusual approach of running as a Democrat and taking partisan stands on issues, was eliminated.