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Steve Vladeck Profile picture
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Mar 17 • 3 tweets • 1 min read
In a trio of major rulings, the same Fifth Circuit panel held, 2-1, that plaintiffs can’t sue the Texas Secretary of State to challenge certain voting restrictions; instead, they have to sue each *county* election chief — in a state that has 254 counties:

ca5.uscourts.gov/opinions/pub/2…
As Judge Higginbotham points out in each of his three dissents, this is yet another in a line of flatly unpersuasive narrowings of Ex parte Young — to make it increasingly difficult, if not impossible, for plaintiffs to obtain injunctions against unconstitutional state laws.
It’s one thing, as with #SB8, for the state to absolve itself of *any* enforcement responsibility as a transparent ploy to defeat judicial review. This is even worse — foreclosing Ex parte Young against the “chief election officer” of the state for challenges to … election laws.

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More from @steve_vladeck

Steve Vladeck Profile picture
Mar 7
Over three dissents (Thomas, Alito, & Gorsuch, JJ.), #SCOTUS has *denied* a request to block congressional maps drawn by the North Carolina Supreme Court. Justice Kavanaugh concurred. In his view, although the question is significant, it ought to be decided on the merits docket.
Link: justsecurity.org/wp-content/upl…
Link: justsecurity.org/wp-content/upl…
Read 4 tweets
Steve Vladeck Profile picture
Feb 28
The @NRO claims that Judge Jackson "has a discouraging record of her decisions being reversed."

The data is to the contrary. In her 2021 Senate Judiciary Questionnaire, she listed 11/562 district court rulings that were reversed = 1.96%:

judiciary.senate.gov/imo/media/doc/…

That's ... low.
I don't think reversal rates tell us much except in extreme cases; reversals can be for any reason (and from any direction), and they are hardly proof that the reversing court was *right.*

But if this is going to be a line of attack, it's worth stressing how ... empty ... it is.
Here's a 2010 study, for instance, finding an average reversal rate for district judges of 14.4%:

papers.ssrn.com/sol3/papers.cf…

Again, I think this data, too, is noisy. But the notion that Judge Jackson is an outlier here is correct only in the *opposite* direction from the critique.
Read 4 tweets
Steve Vladeck Profile picture
Feb 10
In my research into the history of #SCOTUS’s shadow docket, I’ve long been puzzled at why, circa 1980, the Court stopped formally adjourning over the summer — and instead simply “rose” for its recess, preserving its ability to rule without formally returning for a “Special Term.”
With a big assist from superstar RA @bonnie_e_d, we now have the answer: It was a response to the sharp rise in emergency applications related to impending executions — which (unsurprisingly) ticked up sharply starting in 1979, as states began to carry out post-Gregg executions.
Why did that require the Court to remain in session? Before 1972, individual Justices routinely handled execution-related applications.

The problem by 1980 is that the Court was bitterly divided over the death penalty, so there were reasons to not give one Justice the last word.
Read 4 tweets
Steve Vladeck Profile picture
Jan 28
This is at least the 14th lawsuit that Paxton (to say nothing of other TX officials) has filed against the Biden Administration in 373 days.

And like 12 of the first 13, it was filed in a single-judge division so that they could literally hand-pick a Trump appointee to hear it.
Here's more on the judge-shopping problem, and why it's especially pernicious here in Texas:

msnbc.com/opinion/texas-…
Of the 14 cases I've tracked, this is the fifth to be filed in Amarillo *alone*, where Judge Kacsmaryk hears 95% of all civil cases:

txnd.uscourts.gov/sites/default/…
Read 4 tweets
Steve Vladeck Profile picture
Jan 24
Memorializing my earlier tweet on the UNC affirmative action case, here's a chart on how much more often #SCOTUS is granting certiorari "before judgment":

3 grants from June 1988–August 2004;
0 grants from August 2004–February 2019; and
*14* grants from February 2019–present.
These are cases in which the Court is bypassing the courts of appeals to expedite plenary merits review.

And I chose June 1988 because that's the last time Congress meaningfully altered the Court's appellate jurisdiction (including with respect to certiorari "before judgment").
Two things that my earlier tweet got wrong:

I had counted *15* recent grants because I wrongly included a companion case that was *not* before judgment; and

I had suggested the cutoff was January 2018 not February 2019 because I had miscoded an interim order in the Census case.
Read 4 tweets
Steve Vladeck Profile picture
Jan 24
Certiorari "before judgment" is supposed to be an exceptionally rare practice through which #SCOTUS bypasses courts of appeals to expedite full review of merits cases. From Aug. 2004–Jan. 2018, #SCOTUS granted *0* such petitions. Today’s grant in the UNC case is the *15th* since.
This is not an indictment of any one of those 15 grants. But it certainly seems worth trying to get at *why,* all of a sudden, there are so many cases that the Justices believe meet the historically onerous criteria of Rule 11—when, for the better part of 14 years, there were 0.
List of the 15 CBJ grants since 1/18:

UNC
ZF Automotive
Alix Partners
U.S. v. Texas
Whole Woman’s Health
Gish
Higgs
Robinson v. Murphy
High Plains Harvest Church
Harvest Rock Church
McAleenan v. Vidal
Trump v. NAACP
Ross v. California
Dep’t of Commerce v. NY
DHS v. Regents U-Cal
Read 5 tweets

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