I don’t know about that. The Supreme Court still has the final say and its pomp and circumstance, extensive procedures, and lengthy opinions further elevate ~what they do~ so that it would rarely appear as a rubber-stamp.
That said, and as I wrote about regarding the CFPB case, Justice Jackson is certainly making the point that they are not beholden to the Fifth Circuit’s framing of cases (and, implicit in that, its decisions).
I just think it would take a lot for people to see this as *minimizing* the Supreme Court’s role, as opposed to them *empowering* the lower courts to keep going further and further right.
I'm not sure, you may be right. It just seems that if people see that the 5th Circuit's opinion is invariably upheld by SCOTUS...there's no longer any anticipation about a SCOTUS ruling.
They don't strike me as a group that willingly delegates its power.
I don't think they're likely to see the Fifth Circuit invariably upheld by SCOTUS. That's pretty much the point of my piece: The court can try to make itself look "fair" by tossing out a few extreme decisions here and there.
But, that aside, I get your argument; I just think there is enough that ~SCOTUS does~ that it would take a whole lot for it to look the way you're describing it to people who aren't paying constant attention to all of this like us.
I think you are right in your description of the interplay bwetween SCOTUS and the 5th.
You sort of suggest that they are partners in a kind of dance: the aggressive pushing of boundaries by the 5th gives SCOTUS cover for its rightward move. A kind of cooperative game between them.
Steve Vladeck has pointed out that the 5th Circuit fared very poorly at SCOTUS last term, and it seems like the more recent decisions you discuss here are even more radical. That could fit the cooperation theory.
I'd suggest another possibility, a more antagonistic game: the radicalism of the 5th Circuit is intended to bring outside pressure on SCOTUS from its conservative benefactors (and internal pressure on Roberts and Kavanaugh from their more reactionary fellow justices).
Clearly, SCOTUS has shown itself unwilling to call out the 5th for its radicalism, even as it has generally ruled agaisnt the 5th. I think that fits with a model where Roberts/Kavanaugh are cooperating with the 5th or with one where R/K are being bullied by the 5th, Thomas/Alito/Gorsuch, and all the outside conservative organizations and billionaires.
I wonder, though. The increasing arrogance and extremism of the lower courts threatens to substantially minimize the role of SCOTUS.
If Scotus is relegated to rubber-stamping lower court rulings, then the focus turns to the lower courts.
Once SCOTUS' role has been so diminished (even with Roberts' strategizing), it will never recover.
I don’t know about that. The Supreme Court still has the final say and its pomp and circumstance, extensive procedures, and lengthy opinions further elevate ~what they do~ so that it would rarely appear as a rubber-stamp.
That said, and as I wrote about regarding the CFPB case, Justice Jackson is certainly making the point that they are not beholden to the Fifth Circuit’s framing of cases (and, implicit in that, its decisions).
I just think it would take a lot for people to see this as *minimizing* the Supreme Court’s role, as opposed to them *empowering* the lower courts to keep going further and further right.
I'm not sure, you may be right. It just seems that if people see that the 5th Circuit's opinion is invariably upheld by SCOTUS...there's no longer any anticipation about a SCOTUS ruling.
They don't strike me as a group that willingly delegates its power.
I guess we'll know soon enough.
I don't think they're likely to see the Fifth Circuit invariably upheld by SCOTUS. That's pretty much the point of my piece: The court can try to make itself look "fair" by tossing out a few extreme decisions here and there.
But, that aside, I get your argument; I just think there is enough that ~SCOTUS does~ that it would take a whole lot for it to look the way you're describing it to people who aren't paying constant attention to all of this like us.
I think you are right in your description of the interplay bwetween SCOTUS and the 5th.
You sort of suggest that they are partners in a kind of dance: the aggressive pushing of boundaries by the 5th gives SCOTUS cover for its rightward move. A kind of cooperative game between them.
Steve Vladeck has pointed out that the 5th Circuit fared very poorly at SCOTUS last term, and it seems like the more recent decisions you discuss here are even more radical. That could fit the cooperation theory.
I'd suggest another possibility, a more antagonistic game: the radicalism of the 5th Circuit is intended to bring outside pressure on SCOTUS from its conservative benefactors (and internal pressure on Roberts and Kavanaugh from their more reactionary fellow justices).
Clearly, SCOTUS has shown itself unwilling to call out the 5th for its radicalism, even as it has generally ruled agaisnt the 5th. I think that fits with a model where Roberts/Kavanaugh are cooperating with the 5th or with one where R/K are being bullied by the 5th, Thomas/Alito/Gorsuch, and all the outside conservative organizations and billionaires.