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16 Jun, 4 tweets, 3 min read
Yesterday, a Trump-appointed district judge issued a "nationwide" injunction (which I guess are fine now) against the Biden Administration's moratorium on new oil & gas leases on federal land:

ag.state.la.us/Files/Article/…

Hypocrisy aside, what's truly galling is the injury/equities:
Throughout the Trump Administration, #SCOTUS *repeatedly* issued stays of lower-court injunctions based on DOJ's argument that *any* injunction of federal policy not only causes irreparable harm, but that such harm tilts the balance of equities *toward* the federal government.
In other words, the reason why the federal government did so well on the "shadow docket" over the last four years was at least largely because of a subtle but undeniable shift in how #SCOTUS weighed *these two factors* — as I documented in 2019:

harvardlawreview.org/wp-content/upl…
But those factors shouldn't turn in any way on the substance of the underlying policies. Thus, either yesterday's ruling is simply ignoring that trend in #SCOTUS decisions, or the trend is better understood as having a distinctly partisan (and, thus, deeply problematic) valence.

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More from @steve_vladeck

Steve Vladeck Profile picture
16 Jun
With 17 #SCOTUS decisions in argued cases left, a brief statistical note on the impact of Justice Barrett versus Justice Ginsburg:

So far, there hasn't been a *single* argued case in which Justice Barrett has been part of a 5-4 majority (where the difference could've mattered).
On the "shadow docket," in contrast, there've been at least three rulings where she was in a (publicly) 5-4 majority; one where she was part of a 6-3 majority to summarily reverse (which usually needs six votes); & several where she *might* have been the fifth vote (e.g., Smith).
Two of the three 5-4 rulings (Roman Catholic Diocese & Tandon) are easily among the Court's most significant decisions of the Term thus far.

At least to this point, then, Justice Barrett's impact has been far more publicly visible on the shadow docket than on the merits docket.
Read 5 tweets
Steve Vladeck Profile picture
9 Jun
1/5: Turley is pulling a real Turley here, so let me be clear about what's actually true.

On June 9, 2020 (this date will matter), @rgoodlaw and I wrote a long @just_security post on the Attorney General's power, in general, to direct military forces in response to civil unrest.
2/5: As *part* of that post, we quoted from and linked to a news story in @thehill reporting—based upon high-level but unnamed DOJ sources—that it was Barr who had ordered the clearing of Lafayette Park.

Our post: justsecurity.org/70672/the-unto…

The Hill piece: thehill.com/homenews/admin…
3/5: One year later, the DOI Inspector General has concluded that Barr was *not* behind that controversial move. So be it. But Turley's tweet is not saying that *The Hill* (and, thus, our reliance on it) *was* wrong; he's saying I've "continued to claim" that it was Barr's doing.
Read 5 tweets
Steve Vladeck Profile picture
14 Apr
Correcting an earlier tweet: 22 state AGs joined a letter attacking the constitutionality of D.C. statehood:

ago.wv.gov/Documents/DC%2…

One of the letter's arguments would also call into question the constitutionality of *six* of the AGs' states, as well: AL, IN, KS, MS, OH, & OK.
That's because the letter implies that, when a state cedes territory to the federal gov't, the territory can't later become part of a new state without the ceding state's specific consent. Except that each of these 6 states *includes* examples of territory meeting that criteria.
The letter's other argument—that, once Congress fixed the size of the seat of government at 100 square miles, it couldn't reduce it—is belied by the text of the Constitution ("not exceeding 10 miles square") and history (it hasn't been true since 1846):

Read 4 tweets
Steve Vladeck Profile picture
12 Apr
Yesterday, I posted a thread about how Friday's 5-4 #SCOTUS ruling enjoining CA's #COVID restrictions on in-home gatherings is the latest in a major uptick in status quo-altering rulings on the Court's "shadow docket."

Turns out, there's even more to this story.

Here's Part II:
The specific relief that the Court granted Friday night is an "injunction pending appeal," which bars the enjoined officers from carrying out the blocked policies until and unless the case is conclusively resolved (in favor of the blocked policy) on the merits. Here's the order:
Such an injunction, which operates directly against government officers and is only available when at least two lower courts have already refused to provide such relief, is *supposed* to be exceedingly rare.

Here's Justice Scalia on the comparison with a stay pending appeal:
Read 11 tweets
Steve Vladeck Profile picture
10 Apr
#SCOTUS issued another significant ruling on its "shadow docket" late last night, voting 5-4 to block California's #COVID-based restrictions on in-home gatherings insofar as they interfere with religious practice:

supremecourt.gov/opinions/20pdf…

How often is this happening?

A #thread:
As the chart notes, this is (at least) the *19th* time this Term (since 10/5/2020) that the Justices have used such an emergency ruling to alter the status quo—whether by staying a lower-court ruling; lifting a lower-court stay; or, as here, directly enjoining a government actor.
It's also only the *second* time in these 19 cases that the majority chose to write an opinion *for the Court* that provides a rationale for the decision (and the first such opinion in one of these California cases), even if it's a brief one:
Read 8 tweets
Steve Vladeck Profile picture
8 Apr
New Becket Fund amicus brief in support of emergency injunction against California COVID rules attacks criticisms of #SCOTUS's "shadow docket" as "ivory tower objections" by "academics focused solely on the Supreme Court."

supremecourt.gov/DocketPDF/20/2…
I'll leave to others whether Becket is fairly describing the critics. But it's worth stressing that it's clearly mis-describing the criticisms. The objections aren't to the *existence* of an emergency docket; it goes without saying that every court, including #SCOTUS, needs one.
Rather, the objections are to (1) how often #SCOTUS has used such orders to change the status quo recently; (2) usually *without* any reasoning for the Court; (3) in at least apparent defiance of its own standards for granting such relief; & (4) *sometimes*, with no "emergency."
Read 4 tweets

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