Monday, August 25, 2025

Who Is Pirro Going To Blame For This?

A former federal prosecutor:
I have literally never heard of three no bills. Even two on a case is incredibly unusual. Any former AUSAs ever hear of such a thing?

Because if you’re the AUSA who presented to the grand jury the first time, you’re just a drone. But if you did it the second or third, you deserve to be famous.
In related legal news, Justices Kavanaugh and Gorsuch made sure to criticize lower courts for not doing what they say, even though in several shadow docket opinions this term, the Court has ruled with little to no explanation why, giving the lower courts no guidance at all. Those interested should read Professor Vladeck on the matter, since the subject defies easy summary.

Although I do like how Justice Brown did it. Gorsuch’s thesis in one sentence is:
“Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them.”
Justice Brown’s riposte is:
 “This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins.”
Professor Vladeck ends his analysis of Gorsuch’s opinion with this warning:
These attacks on lower-court judges are troubling enough in the abstract, but it’s even worse for two of the Supreme Court’s justices to give them credence. Justices Gorsuch and Kavanaugh may think that this is about the relationship between the Supreme Court and lower courts, but it’s also about the relationship between the federal courts and the Trump administration, writ large. If the central claim from the President and his supporters is that unelected judges shouldn’t have the power to thwart President Trump (and are abusing their authority whenever they do so), there’s no way in which that claim can or will be analytically limited to district or circuit judges.

Justices Gorsuch and Kavanaugh either don’t understand that, or they do. I’m not sure which one is more disconcerting.
The shorter version of that: sauce for the goose is always sauce for the gander. The Trump administration and the Sinister Six seem to live in the same bubble. They’re never going to see the damage they do, until it’s too late. May God have mercy on their souls because, as Niebuhr understood,* the rest of us have no ethical obligation to. Because what we are protecting is our country. We aren’t responsible for their salvation at the cost of our nation.

I know that sounds dramatic. But suddenly, these are dramatic times.
Even the Roberts Court said he can’t do that: I wonder if Gorsuch and Kavanaugh think that’s a ruling lower courts should follow? I suspect we’re going to find out. Yeah, this one’s not going to stay under the stitches. It’s not going to reassure the markets, either. How quickly will Trump 🌮?



*As concise an explanation as I can give just now:
Reinhold Niebuhr argued that nations must act in their survival interests. Individuals may act unselfishly against their own interests for a higher purpose, but organizations must act selfishly, as their first duty is to preserve the organization. But he did not contend that a nation must act against its own principles. His was not a Machiavellian argument, but an argument against expecting a nation to "do the right thing" according to any given set of moral principles. Nations must act to protect themselves from threat. But the citizens do not have to accept those conditions as the absolute terms of citizenship.
To quote my younger self. (We are strangers to each other, now. I barely remember what he looked like. A fool, most likely. I don’t think that has changed.)
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