🎶This is the end, my friend, the end…🎶

 

Apologies. That’s probably hard to read, and besides, it’s written for lawyers (all professions are a conspiracy against the laity, yadda yadda yadda). Another “shadow docket” decision and, again, Sotomayor and KJB dissent on procedural grounds. The latter argues the application itself is faulty where the applicants for the stay have not demonstrated irreparable harm. The former would deny the stay; no further explanation is given.

Solid grounds, IMHLO, especially since this is yet another interim emergency appeal (meaning you need a stronger argument to get the relief sought). But the anecdotal truth (meaning observers of the court know it even if law professors can’t cite statistics to prove it) is, the courts generally yield to the interests of the government, especially as you climb the ladder of appeals.

The era of the Warren Court, IOW, which is the one so formative in the public memory/imagination, was the exception, not the rule. I learned as a lawyer that what I wanted the law to be, and what it would be, were two different things. Whether you like it or not, that’s the way it is. And the arguments of Thurgood Marshall and Ruth Bader Ginsburg wouldn’t get far with this Court.

As Professor Vladeck notes:

Another emergency docket #SCOTUS win for Trump—albeit on incredibly narrow grounds in the OPM probationary firings case.

Majority holds that at least some of the groups who got the injunction here likely don’t have standing.

But this leaves other injunctions in place and says nothing re: merits.

This is a very narrow ruling and, IMHLO, standing is merely the toehold the Court uses to rule in favor of the application at all. My sympathies, as ever, are with KJB’s reasoning. I think the Court should have left this for regular order in an appeal from a final decision. The fact the Court is taking these applications at all shows more deference (or even bias) than any other party would be given.

I wouldn’t even call it a “win,” because the expectation this court will turn Trump back is expecting this court to act like the Warren Court. And that the Roberts Court will never do. The standing call is a poor one, especially at this stage of proceedings. But it’s hardly the end, or even the beginning of the end. It certainly doesn’t impact all the other cases on appeal or in the trial courts.

It coulda been worse. And, frankly, probably will be, soon enough.