Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This evening, the Court finally decided United States Postal Service v. California.
asserted
Court → decide → California
Very often, the procedural posture of a case is described as tortured.
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posture → describe → case
This posture is torturous for everyone involved.
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posture → involve → everyone
Here, I'll offer a few high-level thoughts.
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I → offer → thoughts
First, the majority opinion, perhaps to its credit, offers two sentences of analysis.
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opinion → offer → analysis
The Government is unlikely to succeed on the merits of its challenge to the District Court's preliminary injunction.
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Government → succeed → injunction
And the equitable factors applicable for obtaining emergency relief from this Court do not favor a stay.
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factors → obtain → stay
I say perhaps, because the Court reaches out to decide the merits on the emergency docket without any analysis.
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Court → say → analysis
Justice Alito, joined by Justice Thomas, offers a thorough analysis of why he thinks the government wins on the merits.
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government → join → merits
Justice Kavanaugh agrees with Justice Alito on the merits.
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Kavanaugh → agree → merits
The majority couldn't be bothered to say anything more than a sentence.
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majority → bother → sentence
This stay application has been pending on the docket for about eight days, but this issue has been percolating for months.
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issue → pende → months
Surely, Chief Justice Roberts could have whipped up a few sentences to explain why Trump loses.
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Trump → whip → sentences
He made up a few such sentences in the ballroom case.
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He → make → case
All the Court had to write to deny the stay was that the equities did not favor emergency relief.
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equities → have → relief
Those are the grounds on which Justice Kavanaugh ruled.
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Kavanaugh → rule → which
But the Chief Justice didn't want this case to come back, so he reached the merits.
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he → want → merits
If there is no need to decide more, the Court should not decide more.
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Court → be → more
Except when Trump is involved.
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Trump → involve → ?
Regrettably, Justices Gorsuch and Barrett joined the Chief's drive-by shooting of Trump's policy.
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Gorsuch → join → policy
Second, let's turn to Justice Kavanaugh.
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's → let → Kavanaugh
It seems clear he will deny any application that urges sudden changes to election rules before the election.
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that → seem → election
I think there were serious questions about whether the litigants from Missouri had appellate standing.
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litigants → think → standing
Likewise, in the postal case, Justice Alito points out there are serious questions about standing.
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Alito → point → standing
But on the emergency docket, when the equities are strong enough, the Court can just ignore standing.
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Court → ignore → standing
Why did Justice Kavanaugh bother signaling his vote?
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Kavanaugh → bother → vote
In case after case, Kavanaugh finds a way to rule against Trump while saying he would rule for him if the facts were different.
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facts → find → him
Kavanaugh, having ruled that the equities cut against Trump, has no reason to say which way the merits go.
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merits → rule → reason
If Roberts and Kavanaugh were on the same wavelength eight years ago, now they are quite at odds when push comes to shove.
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push → come → shove
Fourth, it is curious why Alito and Thomas said nothing in the Missouri cases.
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Alito → say → cases
I thought of a passage from Mollie Hemingway's excellent new book on Justice Alito:
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I → think → Alito
Around the Court, Alito's chambers are seen as the "Green Berets," an elite unit that improves any position it enters.
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it → see → position
The justice often uses military lingo, explaining to his clerks, for example, that "I don't think we need to take point on that one" means "it's not worth sticking our neck out on that issue."
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it → use → issue
I guess it was not worth Alito sticking his neck out in Missouri, especially since Kavanaugh was locked in and the issue would not return to the Court.
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issue → guess → Court
But Alito thought it was worth taking point in the postal service case, especially since the litigation would continue in the lower courts.
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litigation → think → courts
Fifth, Justice Alito (as noted above) raises some important issues concerning standing.
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Alito → note → standing
To begin, the District Court issued a nationwide injunction based on claims asserted by several plaintiff organizations that likely lack standing.
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that → begin → standing
These organizations first claim a direct organizational injury because the rule supposedly thwarts their ability to educate members about voting.
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rule → claim → voting
Yet this theory of injury is based on "'a setback to the organization's abstract social interests'" and an effortto "spend its way into standing simply by expending money to gather information and advocate against the defendant's action[s]."
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theory → base → ]
Justice Gorsuch has made it his life's mission to root out offended observer standing and related doctrines, such a diversion of resource standing.
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it → make → standing
…and 17 more, not listed.
The Aporia
