🧵1/ The Madness of Queen Ketanji

Much has been written about the Court’s thorough, well-deserved tongue-lashing of Justice Jackson. I’d like to focus on her fundamental misconception of the judicial role, a misconception that is shocking for someone with a lifetime appointment to our highest Court. It is reflected first in these two statements she makes with characteristically arrogant certitude: 2/ She says:
“Nor is it debatable that the role of the Judiciary in our constitutional scheme is to ensure fidelity to law.”
-and-
She refers to the Court as “The very institution our founding charter charges with the duty to ensure universal adherence to the law.”
Well, she’s right that these statements are not debatable, but not for the reason she thinks. They’re not debatable because they’re flat wrong.

1/I continue to think the government has made an important procedural omission in the AEA appeal. It should have (and still can) petition the Court of Appeals under Fed. R. Civ. P. 23(f) to hear an appeal from Boasberg’s class certification order. This is important for 2 reasons, one procedural and one extremely substantive, and the two issue tie together: 2/ Procedurally, while the government may overcome it, TROs are not typically appealable. Whatever the Circuit may do here, we’ve seen in Dellinger that this procedural barrier may be dispositive to Roberts and Barrett if the government has to go to SCOTUS. Rule 23(f), on the other hand, provides appealability NOW, at least by leave of court. Given the following substantive issue, this is no mere fig leaf here:

@McAdooGordon Leslie, thoughts:
Thread. Charged crime as per Judge’s instructions:
Falsifying business records with intent to defraud that included the intent to commit, aid or conceal crime 2.
Alleged crime 2 as charged by Judge: promoting election of someone by unlawful means.
Now, ….. @McAdooGordon this is where the possibility of juror confusion becomes evident. Since all 34 counts alleged as the falsified records a record that post-dated Election Day 2016, the “commit” and “aid” options are an impossibility. Therefore, the link between crime 1 (falsification) and