In a 13-page concurrence defending the Court's recent behavior respecting emergency applications, Justice Kavanaugh failed to engage with some of the central critiques of that behavior.
Isn't comparing the severity of the harms to the two parties an inherently value-laden (therefore ideological) exercise? Or are there pre-existing legal definitions of "harms" and "severity" that could be relied on to minimize the role of ideology here? I'm not an attorney and don't have a clue what I think about these questions. But it's not obvious to me that restoring the role of balancing the harms to each party would contribute much to making the court appear to be more neutral.
Seems to me that Problem #1 and Kavanaugh's lock-in argument in Problem #3 are cut from the same cloth. Reducing the ultimate decision to "likelihood of success on the merits" disregards the "different" question the Court is asking at this particular procedural posture. This, to me, just seems to boil down to the self-deprecating method the Court utilizes. The method condenses these emergency dockets into emergency merit rulings by the full court instead of the ad hoc, equitable relief that this process was originally designed for. This leads to the perception of lock-in (which admittedly may not be totally real, per Kavanaugh's switch) and ups the ante for this procedural phase.
Steve, as a layman's summary of your analysis, Kavanaugh and the other conservative justices (except perhaps Roberts) simply don't give a shit about procedural or decisional judicial precedent (unless it supports their position) but rather proffer arguments (or ambiguities) that support their decisions not based on the law and exercise of the principles they supposedly learned in law school (if they weren't too drunk or buried in their Bible studies) but rather based on their political interests and supporters.
As Robert Hubbell repeatedly suggests, after the election, Biden and Democrats need to expand the Court to bring Court back to its foundation: "EQUAL JUSTICE UNDER LAW"
"In other words, there are almost no examples, prior to 1980, of full Court rulings on emergency applications on 'important decisions for the Nation' that came without any explanation from the Court." Precisely.
I have long suggested that we deny the honorific of "Justice" to the Roberts Robe Robbers. Judge Poppycock it is.
Isn't comparing the severity of the harms to the two parties an inherently value-laden (therefore ideological) exercise? Or are there pre-existing legal definitions of "harms" and "severity" that could be relied on to minimize the role of ideology here? I'm not an attorney and don't have a clue what I think about these questions. But it's not obvious to me that restoring the role of balancing the harms to each party would contribute much to making the court appear to be more neutral.
Seems to me that Problem #1 and Kavanaugh's lock-in argument in Problem #3 are cut from the same cloth. Reducing the ultimate decision to "likelihood of success on the merits" disregards the "different" question the Court is asking at this particular procedural posture. This, to me, just seems to boil down to the self-deprecating method the Court utilizes. The method condenses these emergency dockets into emergency merit rulings by the full court instead of the ad hoc, equitable relief that this process was originally designed for. This leads to the perception of lock-in (which admittedly may not be totally real, per Kavanaugh's switch) and ups the ante for this procedural phase.
Steve, as a layman's summary of your analysis, Kavanaugh and the other conservative justices (except perhaps Roberts) simply don't give a shit about procedural or decisional judicial precedent (unless it supports their position) but rather proffer arguments (or ambiguities) that support their decisions not based on the law and exercise of the principles they supposedly learned in law school (if they weren't too drunk or buried in their Bible studies) but rather based on their political interests and supporters.
As Robert Hubbell repeatedly suggests, after the election, Biden and Democrats need to expand the Court to bring Court back to its foundation: "EQUAL JUSTICE UNDER LAW"
"In other words, there are almost no examples, prior to 1980, of full Court rulings on emergency applications on 'important decisions for the Nation' that came without any explanation from the Court." Precisely.
I have long suggested that we deny the honorific of "Justice" to the Roberts Robe Robbers. Judge Poppycock it is.