The justices' efforts to explain their votes with respect to a major ruling on a pair of emergency applications raise more questions than they answer—again
Could the fact that this case arrived at the Court at the same time as the new crop of law clerks be part of the problem? New clerks may be less familiar with the difference between stays and injunctions and generally less capable of assisting their justices than veterans. By definition, emergency applications leave less time for thoughtful consideration of petitions, and that problem is probably exacerbated when justices are doing other things on summer recess. This mess could be in part due to seasonal aberrations.
That might contribute to the problem, but it also gives rise to another concern. Don’t Supreme Court justices at least proofread and sanity check the work of their law clerks? Even though I haven’t read the parties’ briefs and have only casually followed this case through media reports, I still was aware of what the government was and wasn’t asking for. But somehow *all* of the justices and their clerks, new though they might be to this job (although most have undoubtedly done prior clerkships in lower courts), failed to learn the basics about the procedural posture of the case and the parties’ arguments? Seems bad.
I’m continually bothered that the Government’s burdens depend (at least in terms of articulated standards) on whether it happens to find itself as applicant for interim relief, or respondent. Surely a rule that requires those challenging a regulation to meet the familiar tests would yield more consistent results. Or at least would make it harder for the Court to reason backward from the desired outcome. Ritual incantations of deference aside, I doubt the Justices care that much what the lower courts think.
Could the fact that this case arrived at the Court at the same time as the new crop of law clerks be part of the problem? New clerks may be less familiar with the difference between stays and injunctions and generally less capable of assisting their justices than veterans. By definition, emergency applications leave less time for thoughtful consideration of petitions, and that problem is probably exacerbated when justices are doing other things on summer recess. This mess could be in part due to seasonal aberrations.
That might contribute to the problem, but it also gives rise to another concern. Don’t Supreme Court justices at least proofread and sanity check the work of their law clerks? Even though I haven’t read the parties’ briefs and have only casually followed this case through media reports, I still was aware of what the government was and wasn’t asking for. But somehow *all* of the justices and their clerks, new though they might be to this job (although most have undoubtedly done prior clerkships in lower courts), failed to learn the basics about the procedural posture of the case and the parties’ arguments? Seems bad.
I’m continually bothered that the Government’s burdens depend (at least in terms of articulated standards) on whether it happens to find itself as applicant for interim relief, or respondent. Surely a rule that requires those challenging a regulation to meet the familiar tests would yield more consistent results. Or at least would make it harder for the Court to reason backward from the desired outcome. Ritual incantations of deference aside, I doubt the Justices care that much what the lower courts think.