A day later, I’m still quite puzzled by the Barrett/Kavanaugh concurrence in the Maine case.
If there’s a “discretionary judgment” about whether #SCOTUS should grant emergency relief to a party that meets the statutory standard, what considerations cabin/inform that discretion?
If there’s a “discretionary judgment” about whether #SCOTUS should grant emergency relief to a party that meets the statutory standard, what considerations cabin/inform that discretion?
Emergency relief isn’t certiorari; this isn’t about whether the Justices *want* to decide the case. And yet, here are the two most important Justices (at least on this) saying they’ll pick and choose who satisfies the standard (which they get wrong) based on unspecified criteria.
That’s what’s so puzzling to me: This opinion certainly *appears* to be a response to mounting criticisms of the “shadow docket.” But I don’t see how saying “we’ll pick and choose who gets relief based upon unspecified considerations” is *actually* responsive to those critiques.
If the criticism of the shadow docket is just (as it’s often caricatured) that critics “don’t like the results,” this response makes at least some sense.
But insofar as the criticism is about the lack of transparency and consistency in rulings through orders, this … won’t help.
But insofar as the criticism is about the lack of transparency and consistency in rulings through orders, this … won’t help.
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