Internet Armchair Lawyers Are The Worst

 I don’t agree with (or even less relevant, approve) if the majority opinion in Trump v J.G.G. But any legal analysis of that opinion that doesn’t even mention the APA is not worth the paper it’s printed on.

Internet armchair lawyers are the worst.

Professor Vladeck puts the matter far more cogently:

And that leads me to my last point: This isn’t any old case; it’s the case in which the government has come the closest to outright defiance of a court order (something Chief Judge Boasberg is still in the middle of adjudicating). And it’s the case that led President Trump to call for the impeachment of a sitting federal judge for doing nothing other than rule against him (a statement that led to a surprisingly quick and aggressive rebuttal from Chief Justice Roberts). Not two weeks later, here’s Roberts providing the decisive vote to hold that, in fact, the case shouldn’t have been before that judge (or that court) in the first place, without even a hint that any of the government’s (profoundly disturbing) behavior in this case warrants any reproach. As Justice Sotomayor concludes her dissent, “The Government’s conduct in this litigation poses an extraordinary threat to the rule of law. That a majority of this Court now rewards the Government for its behavior with discretionary equitable relief is indefensible. We, as a Nation and a court of law, should be better than this.”

That the Court is not, in fact, “better than this” may come as little surprise to folks who have come to view everything this Court does with cynicism. For as harsh a critic of the Court as I’ve been, especially with respect to its behavior on emergency applications like these, it still surprises me. And it opens the door to the alarming possibility that the Court is not, in fact, ready to accept how profound a threat the Trump administration poses to the rule of law—not because the Court is upholding what the government is doing, but because a majority of the justices are willing to let the government win on procedural technicalities in contexts in which the real-world costs are increasingly severe. It’s not too late for the Court to reverse this pattern. But it’s getting late quickly.

Supreme Court opinions are lawyers talking to lawyers, because appellate opinions are decided on points of law (or should be). Trial court opinions are usually lawyers talking to lawyers and lay people, because those opinions have to find the facts and apply the law. Every legal ruling is a matter of how the facts and the legal reasoning lead to the conclusion. The conclusion is important; but the legal reasoning is just as important.

This case was decided on procedural issues, like the question of using the APA for injunctive relief, since that remedy is not available under the AEA. The APA is also how Boasberg was approaching certifying a class for the judicial efficiency of a class action suit. If you aren’t discussing those matters, but instead are arguing about what cited cases “actually” stand for, you aren’t just missing the point, you aren’t even in the debate hall. Cases cited in opinions ALWAYS rule on several different issues, and the one they are cited for may only be of minor importance in the original opinion. It’s just whinging that your preferred outcome, wasn’t the court’s outcome. The dissents here know better, and go after the argument with counter-arguments of their own.

The Administration wanted carte blanc to do as they pleased under the AEA. They didn’t get it. Professor Vladeck points out habeas proceedings will now have to be heard in the Southern District of Texas, with appeals going to the Fifth Circuit, the appellate court most likely to side with the government. But that’s also the circuit most overturned by the Supreme Court, lately. It’s hardly all sunshine and flowers. But neither is it all destruction and despair.

Congress still has the true whip hand over the Presidency. Whether we, the people, will give them the numbers and the backbone to use it, remains to be seen. But that is the true constitutional solution. There really isn’t another one. (Yes, that could even capture the unicorn of impeachment, but I really don’t think we can expect to replace that many Senators in one blow.)

rustypickup, in comments, identifies both the problem with the decision, and the problem pointed out in dissent: using the shadow docket (cases not fully developed in trial or in appeal; not briefed and argued to the Court; opinions based on reduction reasoning and quick conclusions), to do almost in secret what the Court should do on at least the appearance of hearing arguments and considering issues. The dissent said it: the Court threatens its own legitimacy with not just its rulings, but its actions.