Two recent decisions by the New Orleans-based appeals court suggest that, if Justice Barrett meant to limit lower courts' use of open-ended administrative stays, the message has not yet sunk in
It’s a common thread that the current Supreme Court right wing supermajority no longer cares about traditional standards in its haste to rewrite the law. Whether it’s the prerequisite to obtain a stay, issuing a decision on the merits (such as with the infamous explosion of “shadow docket” mandates written about to great effect by Professor Vladeck), or mistaking factual evidence to reach a preconceived ideological position, the Court has completely gone off the deep end.
It won’t change until either the radical justices are replaced or retired.
It’s absolutely amazing to me how common stays have become. 30 years ago, when I was a very young litigation associate, we lost a p.i. hearing and our client was enjoined from exercising its contractual right to terminate one of its wayward distributors. My research into paths forward led me to “discover” that injunctions could be stayed and the process for doing so. I raised this with the lead attorney on the case, one of the top, most experienced trial lawyers in the state. He chuckled, thanked me for my research, and said, “Yes, they’re theoretically available. But courts never grant them.” We’re in a very different world now.
Do you ever get the feeling that the court is delaying the important decisions so that immediately after handing them down they can hop in their luxury RVs or go on long trips to Bali or otherwise hide from the ire of whichever half of the country hates their opinion?
Is it possible that it isn’t that Justice Barrett’s message hasn’t “gotten through” to the Fifth Circuit, but rather that either the relevant judges are affirmatively trying to test the seriousness of the warning, or aren’t too bothered by being ultimately reversed, almost like the old Judge Reinhardt line that SCOTUS couldn’t catch them all?
Sorry, what do you mean? Whether you agree or disagree with the outcome even the dissent recognized there were important constitutional issues that the case required addressing.
Is your complaint that the court should have held for the plantiff on much narrower grounds (eg merely held that media companies have a 1a protected right here) and leave the general issues for a different case?
Yes. Courts should always decide cases on the narrowest possible grounds, not open up issues that were not part of the dispute brought before the court.
Is that really true? For instance the court should never have adopted the NYT v. Sullivan test merely ruled on that particular case? Or Brown v. Board shouldn't have gone beyond finding that in this one case seperate wasn't equal?
SCOTUS can always limit a decision to the facts of this specific case so it can almost always be narrower. People seem to be perfectly happy for the court to declare a broad principle like seperate is never equal they agree with and the claim that it's too broad seems to not be independent of the support for the principal reached.
But for the court to meaningfully protect rights and develop the law predictably it needs to announce rules. Indeed, in some sense what makes it a court not a legislature is that it announces general rules that it needs to apply in future cases.
I'd actually go the other way and suggest that it's better for the court to select a principle that decides the issue relatively broadly but within the scope of briefed issues. That's quite vague and it's always going to be a judgement call but the court is at its worst when it's at it's narrowest as in Bush v. Gore.
What constrains the court from just choosing the outcome it likes is the need to select a general principle. I'd much rather have the court issue a broad rule about speech in CU than decide each case based on whether they sympathize.
It’s a common thread that the current Supreme Court right wing supermajority no longer cares about traditional standards in its haste to rewrite the law. Whether it’s the prerequisite to obtain a stay, issuing a decision on the merits (such as with the infamous explosion of “shadow docket” mandates written about to great effect by Professor Vladeck), or mistaking factual evidence to reach a preconceived ideological position, the Court has completely gone off the deep end.
It won’t change until either the radical justices are replaced or retired.
It’s absolutely amazing to me how common stays have become. 30 years ago, when I was a very young litigation associate, we lost a p.i. hearing and our client was enjoined from exercising its contractual right to terminate one of its wayward distributors. My research into paths forward led me to “discover” that injunctions could be stayed and the process for doing so. I raised this with the lead attorney on the case, one of the top, most experienced trial lawyers in the state. He chuckled, thanked me for my research, and said, “Yes, they’re theoretically available. But courts never grant them.” We’re in a very different world now.
Do you ever get the feeling that the court is delaying the important decisions so that immediately after handing them down they can hop in their luxury RVs or go on long trips to Bali or otherwise hide from the ire of whichever half of the country hates their opinion?
Is it possible that it isn’t that Justice Barrett’s message hasn’t “gotten through” to the Fifth Circuit, but rather that either the relevant judges are affirmatively trying to test the seriousness of the warning, or aren’t too bothered by being ultimately reversed, almost like the old Judge Reinhardt line that SCOTUS couldn’t catch them all?
I think the best known (and worst) "re-argue on different issues" case was Citizens United.
Sorry, what do you mean? Whether you agree or disagree with the outcome even the dissent recognized there were important constitutional issues that the case required addressing.
Is your complaint that the court should have held for the plantiff on much narrower grounds (eg merely held that media companies have a 1a protected right here) and leave the general issues for a different case?
Yes. Courts should always decide cases on the narrowest possible grounds, not open up issues that were not part of the dispute brought before the court.
Is that really true? For instance the court should never have adopted the NYT v. Sullivan test merely ruled on that particular case? Or Brown v. Board shouldn't have gone beyond finding that in this one case seperate wasn't equal?
SCOTUS can always limit a decision to the facts of this specific case so it can almost always be narrower. People seem to be perfectly happy for the court to declare a broad principle like seperate is never equal they agree with and the claim that it's too broad seems to not be independent of the support for the principal reached.
People certainly complained that the Warren court was legislating from the bench
People always do that when they dislike rulings.
But for the court to meaningfully protect rights and develop the law predictably it needs to announce rules. Indeed, in some sense what makes it a court not a legislature is that it announces general rules that it needs to apply in future cases.
I'd actually go the other way and suggest that it's better for the court to select a principle that decides the issue relatively broadly but within the scope of briefed issues. That's quite vague and it's always going to be a judgement call but the court is at its worst when it's at it's narrowest as in Bush v. Gore.
What constrains the court from just choosing the outcome it likes is the need to select a general principle. I'd much rather have the court issue a broad rule about speech in CU than decide each case based on whether they sympathize.