When I was 2L, I saw Judge Scalia give a speech to the Baltimore Federalist Association chapter. Someone asked him if the lawyer general should be considered “10th Justice.” Scalia scoffed at this question, saying that there is only nine justice. Still, as I recall, Scalia recognized that the federal government was a special litigator before the Supreme Court. In fact, lawyers are representatives of the government’s coordinate branch.
Historically, at least the general attorney has received special treatment. SG had the most number of recognized certificate petitions. Additionally, the lawyer general is uniquely skilled at opposing Certiorari by discovering and in some cases inventing vehicle problems. SGs regularly take leave to participate in oral discussions. These requests are rarely granted to other parties. Courts often invite SG to provide SG with opinions on a particular case. Importantly, however, when SG file an emergency motion with the court, the judiciary handles the case with urgency.
Yesterday, the Supreme Court split 5-4 inches Department of Education vs. California. The majority apparently handled lawyer applications in communities that were like those that were from government coordinate branches. Certainly, that It remains unknown For me, why did this respect not be given by chance? USAID case.
But Judges Jackson and Sotomayor would not have given the federal government that way. Rather, it appears that opposition treated the incumbent government as merely another “party.” Certainly, opponents identified some legal errors in the majority opinion, but at the bottom there was disagreement about whether executives should receive relief at emergency facilities or instead wait for regular appeals, like other parties.
Let’s consider how Judge Jackson described the United States as just another “party” seeking emergency relief.
I think one thing is a serious mistake to allow it party They are seeking impartial emergency relief not only to show inadequate preliminary harm, but also to seek relief based on concerns about issues that can be addressed later in the usual course.
Still, I’m here. Instead of having a judge in the lower court and doing the important job of efficiently adjuring everything party The legal claims have decided that the best Courtsa will enter the fight.
The government is now distracting the court from its interim injunctive relief, which clearly guarantees, and distracts its attention from distracting its own highly questionable actions without showing any urgency or need. I’m worried that they’ll allow emergency dockets to be hijacked like this. Party with tangential legal questions It has nothing to do with impending damage, damOur institutional reliability is older.
Department of Education vs. Californiaas the name suggests, is a conflict between the federal government and the state. The lower courts issued emergency rulings against the federal government despite the US claiming that these cases belong to another court. The only court that can set aside these judgments is the U.S. Supreme Court. Judge Jackson will permeate the case on a regular course and will likely return to the Supreme Court through the certificate process. It may be fitting for a slow, slow pace of justice, sitting on a healthy summer break for about 30 weeks a year, but it ignores urgent pleas from the federal government.
I am still struck by Judge Jackson calling the subject’s jurisdiction, sovereign immunity, and venue “tangential legal questions.” She later referred to these bedrock principles as “shiny objects.”
It is therefore a small wonder that the government chose not to impose discussions on its merits on this emergency application. See n. 2, above. A better way to avoid swiftly considering the serious claims of plaintiffs’ states about the illegal arbitrariness of government conduct is better than asking jurists to turn away from those core questions and entertain many sub-issues regarding district court power on a “urgent” basis? Courts that are properly pondering interim injunctive relief (to prevent impending damages and thereby promote a fair award of potentially valuable claims) should be wary of allowing defendants with underlying weak arguments to divert all attention to supplemental thresholds and treatment questions. Children, pets, and magicians may enjoy such clever use Shiny Object Tactics. But the court should not be so easily distracted.
The lawyers created the art form by raising arguments based on sovereign immunity, jurisdiction and venue. However, Judge Jackson sees these arguments as a diversion. I wrote the entire book about how the Obama administration has consistently rewritten the Affordable Care Act. The only possible defense was that no one was injured by these actions. At the time, I only heard about cricket. What we’re looking at here is nothing new.
It seems pretty clear to me that opponents are still refusing to “normalize” the Trump administration. Perhaps Judge Jackson cannot embed the Talisman in her opinion to drive away evil, but she can still deny the government’s traditional presumption of regularity. She then concludes that it harms the court’s “institutional credibility” to recognize such a community in the government. I disagree. Totally opposite, the court undermines itself in an immeasurable way by refusing to treat this administration as a formally elected coordinate branch. Let the law professor argue whether this president has the right to presumptiveness. The judges should stay in their own lane.
