Judge Susan Illston provided a great example on Friday of how to deal with the current Supreme Court in an order that the Trump admin turn over its mass-firing plans.
I am so impressed with the district court judges! They are truly holding the line on constitutionality, while the SCROTUS just makes shit up or issues oneiric orders.
More likely because she's "one of Them" (a female judge placed on the bench by a Democratic president). But perhaps more to the point, Judge Illston, for better or worse, skewers the SCOTUS decision by describing it as "terse" and "inherently preliminary." I can only imagine the words coming out of Justices Alito's, Thomas', Gorsuch's, and Kavanaugh's mouths when reading this order. (I'm guessing Justices Roberts and Comey-Barrett have a modicum of decency that allows them to control their tempers thoughts.)
I see. You believe you have the right to define the scope and meaning of the word right with respect to women, transgenders etc. Well and good, but don't kid yourself that you are protecting democracy. You aren't. You are protecting an elitist view of right which may or may not correspond to the Constitutional tradition. Do what you want to do, but don't think you are protecting democracy. You're attacking it
This is just an amazing article. FWIW, I'm a never Trumper, based on a personality I consider completely unsuited for the presidency. But I do not and have never regarded him as an existential threat to the republic. He's the second coming of Andrew Jackson, which is not praise. He represents a transforming, but undisciplined populism, which is not entirely consistent, capable of doing great mischief as well as great good.
That said, I am a card carrying judicial conservative. To the extent possible, the judiciary should stay out of political processes. You do not preserve democracy by responding to a popularly elected president, with popularly elected majorities in both houses, by running to unelected judges of appropriate political persuasionto interfere with the workings of the administration.
The notion expressed in the article that the machinations of a district judge such as judge Illston are not political, whereas the reaction of appellate courts and the Supreme Court are, is incredible, unintentionally comic. It is ludicrously inconsistent. There is a reason why litigants have chosen convenient forums. It is precisely because they expect the right political outcome.
I do not see the present Supreme Court as being reactionary. Instead, it views the role of the judiciary in the way it was viewed for two centuries, before the legal elites of the society decided that a crisis justified a complete abandonment a valuable judicial traditions of restraint. It's the Supreme Court that is being Conditionally correct, not its critics.
The solution to Trump is not to race to friendly judges and obstruct democratic processes in the name of protecting democracy (a position both oxymoronic and truly moronic at the same time). It's to win elections. That seems impossible for the Democratic Party at this time, because of the various bizarre ideological positions it is taken, the transgender issue being the most obvious. Litigating in the face of a public mandate is, however, the worst possible reaction - precisely because it is anti-democratic. The solution is political reform in the Party itself, as difficult as that seems.
If losing an election meant losing all your rights, the constituencies making up the Republican party would have been vanquished multiple times this century. Yes Democrats, or anybody opposed to MAGA, need to win elections. But that can't possibly be the end of the story. Otherwise the first thing the winning party of an election would do with their mandate is make sure that no one else is ever able to win future elections.
Awful lot of women of childbearing age would disagree with you. As would transgender folks. As would legal immigrants and refugees. And we could go on but I won't, having made my point for the rest of the room.
Thank you for this. Even as the good work of the federal judiciary often feels in vain when, if the government really doesn't like a ruling, any ruling, it can just go to mom and dad on the supreme court and get whatever it wants, often with little or no explanation.
As a former federal clerk and long federal criminal defense practice, I have seldom read a district court's order that filled me with such joy.
Very well done Judge Illston!
Excellent exposition! And a good template for other judges (and their clerks) to follow.
I am hopeful all judges are watching and learning!
I am so impressed with the district court judges! They are truly holding the line on constitutionality, while the SCROTUS just makes shit up or issues oneiric orders.
Thank you for the clear, concise, thorough explication.
Substack needs an I LOVE THIS button.
Hello
Nice that the court recognizes whether behavior is “good faith” when SCOTUS, behind an opaque shadow docket, chooses otherwise.
No doubt SCOTUS, on “emergency” appeal, will overturn Judge Illston’s decision because she was wearing the wrong shoes.
More likely because she's "one of Them" (a female judge placed on the bench by a Democratic president). But perhaps more to the point, Judge Illston, for better or worse, skewers the SCOTUS decision by describing it as "terse" and "inherently preliminary." I can only imagine the words coming out of Justices Alito's, Thomas', Gorsuch's, and Kavanaugh's mouths when reading this order. (I'm guessing Justices Roberts and Comey-Barrett have a modicum of decency that allows them to control their tempers thoughts.)
“Luckily” SCOTUS won’t have to explain in a shadow docket “opinion” — a great hiding place.
LOL
Terrific post (and terrific order)!
I see. You believe you have the right to define the scope and meaning of the word right with respect to women, transgenders etc. Well and good, but don't kid yourself that you are protecting democracy. You aren't. You are protecting an elitist view of right which may or may not correspond to the Constitutional tradition. Do what you want to do, but don't think you are protecting democracy. You're attacking it
This is just an amazing article. FWIW, I'm a never Trumper, based on a personality I consider completely unsuited for the presidency. But I do not and have never regarded him as an existential threat to the republic. He's the second coming of Andrew Jackson, which is not praise. He represents a transforming, but undisciplined populism, which is not entirely consistent, capable of doing great mischief as well as great good.
That said, I am a card carrying judicial conservative. To the extent possible, the judiciary should stay out of political processes. You do not preserve democracy by responding to a popularly elected president, with popularly elected majorities in both houses, by running to unelected judges of appropriate political persuasionto interfere with the workings of the administration.
The notion expressed in the article that the machinations of a district judge such as judge Illston are not political, whereas the reaction of appellate courts and the Supreme Court are, is incredible, unintentionally comic. It is ludicrously inconsistent. There is a reason why litigants have chosen convenient forums. It is precisely because they expect the right political outcome.
I do not see the present Supreme Court as being reactionary. Instead, it views the role of the judiciary in the way it was viewed for two centuries, before the legal elites of the society decided that a crisis justified a complete abandonment a valuable judicial traditions of restraint. It's the Supreme Court that is being Conditionally correct, not its critics.
The solution to Trump is not to race to friendly judges and obstruct democratic processes in the name of protecting democracy (a position both oxymoronic and truly moronic at the same time). It's to win elections. That seems impossible for the Democratic Party at this time, because of the various bizarre ideological positions it is taken, the transgender issue being the most obvious. Litigating in the face of a public mandate is, however, the worst possible reaction - precisely because it is anti-democratic. The solution is political reform in the Party itself, as difficult as that seems.
If losing an election meant losing all your rights, the constituencies making up the Republican party would have been vanquished multiple times this century. Yes Democrats, or anybody opposed to MAGA, need to win elections. But that can't possibly be the end of the story. Otherwise the first thing the winning party of an election would do with their mandate is make sure that no one else is ever able to win future elections.
No one has lost any rights.
Awful lot of women of childbearing age would disagree with you. As would transgender folks. As would legal immigrants and refugees. And we could go on but I won't, having made my point for the rest of the room.
I have been reading a lot of district court decisions lately, for some reason. The speed and thoroughness with which they act is truly impressive.
So the odds that they will hand over the plans Wednesday are 100%?
So clear. Thank you so much
Thank you for this. Even as the good work of the federal judiciary often feels in vain when, if the government really doesn't like a ruling, any ruling, it can just go to mom and dad on the supreme court and get whatever it wants, often with little or no explanation.
Appreciate the clear timely summary, Chris. Federal Agencies and civil service are personal interest.