Surprising No One…

The Sinister Six never saw a Presidential order it couldn’t at least allow to procwhile it waits several weeks to even sit again. The irreparable harm is always to the President, when his name is Trump.*

And reaction was swift:

The court “hands a provisional win to Trump over his effort to exert control over mail-in ballots,” Hurley told his followers, but added that “questions remain about whether the underlying proposal is lawful, as majority concedes. Plus a nationwide injunction in a different case remains in effect, for now.”

David Badash, founder and editor of The New Civil Rights Movement, called the decision “highly questionable," while liberal commentator Jeff Tiedrich mocked the court’s conservative majority.

“Can’t wait for there to be a Democratic president so the Supreme Court can start saying no again,” he wrote.

"It’s not a Supreme Court anymore—it’s the Institute for the Advancement of Christofascism," Seth Abramson, a retired journalism professor and former prosecutor, said in a social media post. "Don’t listen to these normopath lawyers insisting precedents still hold water with these six religious zealots; they don’t. They don’t even follow the irreparable harm rule in equity cases."

CNN legal analyst Elie Honig, meanwhile, said the order was “definitely a big win” for the Trump administration.

The only person I disagree with there is Eli Honig, mainly because of my high regard for Professor Vladeck:

#BREAKING: Over dissents from the three Dem. appointees, #SCOTUS has *granted* the Trump administration’s request to freeze a district court injunction that had blocked the mail-in ballots executive order. But Trump’s EO remains blocked by a different injunction in a different case—at least for now:

And as soon as tomorrow, Judge Talwani may also issue a TRO against the new rule the USPS issued Friday night to implement the EO.

In other words, this is a small win for the Trump administration, but *not* a ruling that fully clears the way for Trump to mess with mail-in ballots come November.

I’m just going to add this comment from the Professor about the “administrative stay” on the ballroom, while we wait for the Professor’s comments on this new ruling.

Late Friday afternoon, Chief Justice Roberts issued a one-sentence administrative stay keeping Judge Richard Leon’s injunction against above-ground construction of the new White House ballroom on hold “pending further order” of the Chief Justice or the Court. (In English, Roberts allowed ballroom construction to continue.) There was no reasoning, no vote count, and no dissent—because, as I’ve explained before, these kinds of “administrative” stays are issued by a single justice (the “circuit justice” responsible for the lower courts from which the case came) to buy time for the full Court to act.

The problem with Roberts’s administrative stay isn’t that it was unexplained; it’s that no defensible explanation for it exists. Other than a March 2024 concurrence by Justice Barrett (which was about administrative stays issued by courts of appeals), the justices have never publicly identified any criteria for an “administrative” stay, as opposed to a stay pending appeal. But irreparable harm has to be at least part of the equation. And there’s just no universe in which a party is “irreparably” harmed by a temporary pause in construction; indeed, it wouldn’t be a construction project without unplanned, temporary pauses.

For quirky procedural reasons, it’s possible that Roberts’s Friday afternoon intervention isn’t necessarily a harbinger of how the full Court is going to rule (I’m skeptical, alas). But whether it is or not, the real takeaway from the ballroom case, at least at this juncture, is that it’s long past time for the justices to publicly articulate criteria for when they should (and shouldn’t) issue “administrative” stays—and, even more importantly, to follow them.

The context here is a basic principle of due process: that the law is known so those to whom the law applies knows, at least ostensibly, what the rules are. That’s intentionally general; let me explain how it’s supposed to work.

I noted recently that courts issue orders, and sometimes issue opinions. Trial court judges usually just sign a terse document of a paragraph or two, concluding with “IT IS SO ORDERED.” At least that’s how I remember it 33 years later. Sometimes they write an opinion explaining the order; but appellate courts always write an opinion. The purpose of the opinion is actually very simple: to state what the law is given the facts of this case, and why the law applies as it does to those facts, and what law applies (and what law doesn’t).  The purpose is related to that principle of due process: so everyone, especially lawyers and judges, know what the law is on similar facts going forward. Otherwise, you’re just guessing, and the law is the whim of the last judges standing.

Under our constitution, those last judges are the justices of the Supreme Court.

Which is what Professor Vladeck is complaining about. In terms established by Kurt Vonnegut: “No damned cat, and no damned cradle!” The Supremes aren’t even trying to explain what they are doing, much less justify it. Or, as the NYT Pitchbot succinctly put it:

Critics of the Supreme Court’s emergency docket say it grants the executive branch too much power. But when a Democrat is president again that same docket will be used to limit the executive branch’s power.

To which the Professor sagely replied:

The satire lies in its absence.

Satire is not the only thing missing. Satire is a pleasure to read, but has no place in reality. Satire is a commentary, not a judicial order. The Sinister Six act as if they were apart from the world, and above it; especially apart from and above we, the people.  I live in hope that there will be a new and different Congress in January, and that it will remind the Sinister Six that Art. I gives Congress authority over the office established by Art. II, and gives them even more authority over the courts it establishes pursuant to Art. III. And that power runs far deeper and broader than just expanding the size of the Court (which really can’t be enacted before 2029, because…why would you do that now?). Ethics, forced retirement, even rules of procedure, can be enforced on the Supreme Court, because Art. III not only allows, but presumes that Congressional authority. After all, the Congress is the representative body of we, the people. That’s why Art. I is so extensive, and Art. III just says there will be a Supreme Court and a Chief Justice, and leaves the rest to Congress. Congress can do a great deal to remind the Sinister Six of that without expanding the bench of the Court (yet), or waiting for Trump to leave.

Congress is also the body that can originate Constitutional amendments. They’ve done it before to reverse Supreme Court rulings; high time to do it again.

*”Irreparable harm” is a term of art from equity. Injunctions are creatures of equity, and one reason they are granted is that the harm can’t be repaired by a judgment later. Justice will not be done, IOW, by allowing the status quo to stand while the case proceeds. Lower courts have suspended the ballroom construction on this point (allowing construction to proceed while the case is pending obviates the relief sought by the case).