Category: Courts

The 9th Circuit stayed this idiocy a few hours after it was written. They’ll hear arguments on it this coming Tuesday.

About That Judge Who Tried to Strip Trump’s Commander-in-Chief Powers Last Night…

Judge Charles Breyer is another member of this unholy fraternity that’s leading this judicial coup. The man tried to—and this is just beyond laughable—wrest the commander-in-chief role from the executive last night. It lasted about 30 seconds before an appeals court slapped it down for gross overreach. It’s become the hallmark characteristic of this cabal of judges who think they’re the entire government. Once again, we have a clown in robes who would fit better as an MSNBC commentator than a judge.

Charlie, brother of former Supreme Court Justice Stephen Breyer and a Clinton nominee, shares a common thread that’s shared by most of these nutty coup jurists: he’s a race lecturer. He’s a hardcore Democrat and has donated thousands to the party. However, that’s the least shocking part. If you wish, you can listen to this panel discussion from 2020 about how the system is racist or something. You know the deal with these people.

Based on his questionnaire, Breyer said he worked on the transition team for the late Terence Hallinan, a far-left district attorney for San Francisco.

Given the current company, are we shocked this man tried for a Hail Mary to strip what is clearly a defined power of the executive? No. Breyer ruled last night that Trump—get this—must return the California National Guard, whom he federalized, to Gov. Gavin Newsom’s control. There’s a riot in Los Angeles; this isn’t some new move, Chuck. Why is it that liberals whose first names begin with Charles all seem to suck so much?

White House Deputy Chief of Staff Stephen Miller months ago warned that if this judicial coup continues to fester in the judiciary, we’re going to have district judges weigh in on troop deployments—that just happened. It’s an outrageous ruling that not even the Ninth Circuit Court of Appeals could stomach it, which they quickly slapped down.

We’ll deal with Charlie and his robed judicial insurrectionists, but first, we need to get the reconciliation package through Congress.

ATF to Return Legal Gun Parts, Leaving 16 Blue State AGs to Suffer a Collective Meltdown

The whole “bump stock” hooraw has been settled, for the time being, following the Trump administration’s settling of a lawsuit brought by the National Association for Gun Rights. These devices, more properly called “forced-reset triggers,” allow for firing a semi-automatic rifle more quickly, at the cost of some accuracy. In the interests of complete reporting, we should note that the action of one of these devices can be duplicated with such readily available things as rubber bands or belt loops. Following the settlement, the ATD has been ordered to return some 100,000 seized devices to their rightful owners.

To summarize, 100,000 pieces of legally owned private property are being returned to their owners.

So, of course, 16 blue state attorneys general are screeching and soiling themselves in terror. They are demanding that these people not be given back their property, and as is typical, they don’t even know what they’re talking about. Consider this, from Colorado’s AG, Phil Weiser:

“The law is clear: Machine guns, and devices that turn a semiautomatic weapon into a machine gun, are illegal,” Weiser said in a statement. “We’re suing to stop the ATF and the administration from making our communities more dangerous by distributing thousands of devices that turn firearms into weapons of war.”

Wrong, wrong, wrong, and wrong. These are not machine guns, and they cannot turn a semi-automatic weapon into a machine gun. With or without a forced-reset trigger, the weapon functions the same: One shot for each trigger pull. The device makes it easier to fire more quickly, but so can a thumb thrust through a belt loop.

Furthermore, machine guns are not illegal. The supply is restricted, they are very expensive, and one has to go through a defined process to own one, including a background check and payment of a “transfer tax.” But they are not illegal. Given money and patience, any law-abiding citizen can legally own one. Like this guy does.

Moving on: We’ve seen, time and again and in fact quite recently, that if you want to make your community less safe, the easiest way to do that is to elect Democrats to run that community. But the simple fact is that rifles, modified are not, are very rarely used in crime; you are about as likely to be killed by a falling vending machine as by a mass shooter with an AR-15.

And, finally, these are not weapons of war. Nitwits like AG Weiser, who know less than nothing about guns, can’t explain why an AR-15 is a weapon of war, but a functionally identical but less scary-looking Winchester 100 is not; and yet, the legislation they propose almost always prohibits the former while ignoring the latter.

It’s just stupid all the way down.

Well, at least we’re finally getting a firm idea of exactly where a majority of this court stands on the 2nd amendment’s restriction on goobermint powers when it comes to those nasty icky guns.

US Supreme Court rebuffs challenge to Washington, DC’s high-capacity gun magazine ban

WASHINGTON (Reuters) -The U.S. Supreme Court declined on Friday to hear a challenge to the legality of a restriction imposed by Washington, D.C., on large-capacity ammunition magazines in a case that gives the justices a chance to further expand gun rights.

The justices turned away the challengers’ appeal of a lower court’s ruling that upheld the Democratic-governed city’s ban on virtually all ammunition-feeding devices holding more than 10 rounds. The lower court rejected arguments that the measure violates the U.S. Constitution’s Second Amendment right to “keep and bear arms.”

The four men who challenged the law had asked the Supreme Court to consider whether the Second Amendment allows a categorical ban on arms that are commonly used throughout the United States for generally lawful purposes such as self-defense. The challengers all hold concealed-carry pistol licenses for the District of Columbia and regularly carry a pistol there.

The Supreme Court has dramatically expanded the Second Amendment in recent decades, including in a landmark 2008 ruling that struck down a strict gun control law in Washington and declared that individuals have a right to own guns for such lawful purposes as self-defense in the home.

In 2022, powered by its 6-3 conservative majority, the court made it harder to defend gun restrictions under the Second Amendment, requiring that such limits be “consistent with the nation’s historical tradition of firearm regulation.”

The District of Columbia’s government makes it illegal to possess or sell any ammunition-feeding device that holds more than 10 rounds, with only a narrow exception. The city’s lawyers in court papers wrote that it has restricted the capacity of gun magazines “in some form for close to a century.”

Washington-based U.S. District Judge Rudolph Contreras in 2023 ruled in favor of the city, finding that large-capacity magazines are not “typically possessed for self-defense,” citing evidence showing that around two shots on average are fired in self-defense situations. The judge also found the city was likely to prevail in the case because it had demonstrated that its law is consistent with firearms regulation grounded in the “historical tradition” of the United States.

The U.S. Court of Appeals for the District of Columbia Circuit in a 2-1 decision upheld the judge’s ruling in October 2024, prompting the challengers to appeal to the Supreme Court.

The Supreme Court on June 2 declined to hear a similar challenge to Rhode Island’s ban on large-capacity magazines, as well as a challenge to a ban in Maryland on powerful semiautomatic rifles such as AR-15s, after lower courts upheld these restrictions.

The court on March 26 upheld a federal regulation targeting largely untraceable “ghost guns.” In two rulings last year, it upheld a federal law that makes it a crime for people under domestic violence restraining orders to have guns but rejected a federal rule banning “bump stocks” – devices that enable semiautomatic weapons to fire rapidly like machine guns.

Friday’s action by the court was unexpected. The court had planned to release it on Monday along with its other regularly scheduled orders, but a software glitch on Friday prematurely sent email notifications concerning the court’s decision in the case.

“As a result, the court is issuing that order list now,” said court spokesperson Patricia McCabe.

It is not the first time the court has inadvertently disclosed action in sensitive cases. Last year, an apparent draft of a ruling in a case involving emergency abortion access in Idaho was briefly uploaded to the court’s website before being taken down. That disclosure represented an embarrassment for the top U.S. judicial body, coming two years after the draft of a blockbuster ruling rolling back abortion rights was leaked.

This time, it’s not in a dissent, but as dicta in the actual decision.

Kagan Echoes Sotomayor and Accepts That AR-15s Are ‘In Common Use’

By 

Last year, in the case of Garland v. Cargill, Justice Sotomayor wrote a dissent that included the following description of the AR-15:

Within a matter of minutes, using several hundred rounds of ammunition, the shooter killed 58 people and wounded over 500. He did so by affixing bump stocks to commonly available, semiautomatic rifles.

At the time, I noted that this was an odd concession to make, given a) that Sotomayor is reflexively hostile to Second Amendment challenges, and b) that one of the most important challenges the Court is likely to hear in the coming years will revolve around precisely that claim:

. . . those who wish to ban the AR-15 have taken to claiming that the rifle is not, in fact, “in common use,” and that, as a result, it is not protected under the Second Amendment. Remarkably, Justice Sotomayor just pulled the rug from underneath that argument — and, to make matters worse, did so in an official Supreme Court opinion on the subject of firearms law. [. . .] Sotomayor even uses the word “common”! Not “everyday” or “universal” or “normal” or “usual,” but common — the very word that was used in Heller.

This morning, in her majority opinion in Smith and Wesson Brands, Inc v. Estados Unidos Mexicanos, Justice Kagan did pretty much the same thing:

Finally, Mexico’s allegations about the manufacturers’ “design and marketing decisions” add nothing of consequence. Brief for Respondent 23. As noted above, Mexico here focuses on the manufacturers’ production of “military style” assault weapons, among which it includes AR–15 rifles, AK–47 rifles, and .50 caliber sniper rifles.

See supra, at 6; App. to Pet. for Cert. 121a. But those products are both widely legal and bought by many ordinary consumers. (The AR–15 is the most popular rifle in the country. See T. Gross, How the AR–15 Became the Bestselling Rifle in the U. S., NPR (Apr. 20, 2023.)

The manufacturers cannot be charged with assisting in criminal acts just because Mexican cartel members like those guns too. The same is true of firearms with Spanish-language names or graphics alluding to Mexican history. See supra, at 6. Those guns may be “coveted by the cartels,” as Mexico alleges; but they also may appeal, as the manufacturers rejoin, to “millions of law-abiding Hispanic Americans.”

Note the language here. “Widely legal and bought by many ordinary consumers.” “The AR–15 is the most popular rifle in the country.” “They also may appeal, as the manufacturers rejoin, to ‘millions of law-abiding Hispanic Americans.’”

Under Heller, all firearms that are “in common use” are presumptively protected. At some point — and relatively soon — we are going to get a case in which the plaintiffs contend that the ban on AR-15s in their state is illegal under Heller. I have no doubt that, when that happens, Kagan and Sotomayor will find some convoluted reason to uphold the ban, but, having twice conceded such a key claim, that reason will need to be much, much more radical than it would otherwise have been.

This was a no-brainer. But why it even got past the District Court level before getting thrown out is the problem.

SMITH & WESSON BRANDS, INC., ET AL. v. ESTADOS UNIDOS MEXICANOS

Here, the Government of Mexico sued seven American gun manufacturers, alleging that the companies aided and abetted unlawful gun sales that routed firearms to Mexican drug cartels. The basic theory of its suit is that the defendants failed to exercise “reasonable care” to prevent trafficking of their guns into Mexico…..

Held: Because Mexico’s complaint does not plausibly allege that the defendant gun manufacturers aided and abetted gun dealers’ unlawful
sales of firearms to Mexican traffickers, PLCAA bars the lawsuit.

Georgia Supreme Court Upholds Carry Ban For Young Adults Under 21 Years Of Age

We’ve reported a number of times in recent years about the battle for Second Amendment rights for 18-, 19- and 20-year-old Americans. It seems anti-gun advocates think all the other enumerated rights in the U.S. Constitution are fine for young adults, just not the right to keep and bear arms.

In the latest court action concerning that particular subset of American adults, the Georgia Supreme Court on May 28 ruled that the state’s law banning possession or carry of firearms by adults under 21 does not violate the state’s constitution.

In the case,  20-year-old Thomas Stephens, along with gun-rights advocacy group Georgia 2nd Amendment, sued the state to overturn the law after a probate court denied him a weapons carry license. Stephens had argued the court should overturn its rulings in past cases related to the statute, “holding that the Georgia right to keep and bear arms is subject only to a ‘reasonable exercise of police power’ test.”

The court ruling stated: “In sum, Stephens has not offered a compelling argument that the original public meaning of Paragraph VIII is meaningfully different from the construction developed through our Court’s consistent precedent addressing the language of that provision over more than a century. Because he has not established that our precedent construing this language is clearly wrong, we decline his invitation to reconsider it. And because his only argument that the statute he has challenged violates Paragraph VIII requires that we reconsider that precedent, his constitutional challenge to the statute fails.”

Incidentally, the statute in question does have some exemptions, including those under 21 who have received military training or who possess or carry handguns on their property, in their vehicle or place of  business, or for hunting, fishing or sport shooting with a license.

Of course, both laws do violate the Second Amendment, as numerous gun-rights groups have been trying to prove in court over the past several years. However, the results have been mixed.

In January 2024, a three-judge panel of the United States Court of Appeals for the 3rd Circuit, based in Philadelphia, ruled the state’s ban on adults 18-20 from carrying a handgun during an emergency to be unconstitutional under the new standards prescribed by the 2022 Supreme Court ruling in Bruen.

“We understand that a reasonable debate can be had over allowing young adults to be armed, but the issue before us is a narrow one,” U.S. Circuit Court Judge Kent A. Jordan wrote in the majority opinion. “Our question is whether the (state police) commissioner has borne his burden of proving that evidence of founding-era regulations supports Pennsylvania’s restriction on 18-to-20-year-olds’ Second Amendment rights, and the answer to that is no.”

The Second Amendment Foundation (SAF) recently filed its tenth such suit, this one challenging Connecticut’s ban on adults under 21 purchasing, owning or carrying handguns.

Justice Kavanaugh to Second Amendment: We’re Really Busy Now, Come Back In A Year Or Two

On December 1, 2020, the Maryland ban on AR-15s was challenged. The plaintiffs lost in the District Court and before the Fourth Circuit. In August 2024, a cert petition was filed in Snope v. Brown. The petition sat in purgatory for nearly a year with fourteen relists.

Today, the Supreme Court finally put the petition out of its misery and denied cert. Justices Thomas, Alito, and Gorsuch would have granted. Justice Barrett, as usual said nothing. Justice Kavanaugh wrote a very unusual statement respecting the denial of the petition. The first two paragraphs explain why the Maryland decision was “questionable.” If you read these parts, you would expect a grant. Indeed, Kavanaugh as circuit judge had found that the District of Columbia’s ban on AR-15s was unconstitutional. But then, we get to the last paragraph:

In short, under this Court’s precedents, the Fourth Circuit’s decision is questionable. Although the Court today denies certiorari, a denial of certiorari does not mean that the Court agrees with a lower-court decision or that the issue is not worthy of review.

The AR–15 issue was recently decided by the First Circuit and is currently being considered by several other Courts of Appeals…..

Opinions from other Courts of Appeals should assist this Court’s ultimate decision making on the AR–15 issue.

 Additional petitions for certiorari will likely be before this Court shortly and, in my view, this Court should and presumably will address the AR–15 issue soon, in the next Term or two.

My mouth nearly hit the floor when I read this. Kavanaugh all-but signals that he will be a fourth vote to grant cert. He does not identify any vehicle problems, or reasons why the Maryland petition should not be granted. Does he really think that rulings from the Ninth Circuit will help much in the deliberations? These courts will all rule against the Second Amendment. Nothing is in doubt. The upshot is that the Court is really busy with other stuff right now, and you all should just come back later. The Second Amendment could take a sabbatical for a year or two until the docket lightens up. Indeed, this case has been pending for nearly four years. Maryland gun owners will just have to chill.

Of late I’ve been praiseworthy of some of Kavanaugh’s actions, but this is the sort of Kavanaugh opinion that infuriates me. And where is Justice Barrett on these issues? A decade ago in 2015, Justice Scalia dissented from denial of cert in Friedman v. Highland Park, a challenge to an assault weapon ban.

This issue isn’t new. I think this term will be remembered as the term in which Justice Barrett’s slide became indisputable. I started tracking it years ago, but it is hard to ignore now.

Kostas Moros

May as well do a proper thread on this. Read for my analysis/cope.
Snope denied. The Supreme Court has forsaken us.
Kavanaugh says they want more percolation, apparently.
First up is Kavanaugh, in a statement respecting the denial of cert. (Basically a concurrence in denying it) Not that it will matter until SCOTUS actually polices the antigun circuits, but Kavanaugh confirms we are right that: a. there is a “common use” test. Antigun states have denied this, arguing there is no such test, or if there is, it’s only “commonly used for self-defense.” b. it is historically-based (i.e., not part of the phony “plain text” analysis). Antigun states have argued it’s at the plain text step.
Not strong enough to get granted cert now though, I guess?
Sure, but the antigun circuits will absolutely take this as an affirmance of the terrible Fourth Circuit ruling. SCOTUS needs to accept that it must actively police those circuits, or just admit it has no interest in protecting the Second Amendment so we stop wasting our time.
While they didn’t join this statement, this is Barrett and Roberts speaking too, it’s pretty clear. Kavanaugh wouldn’t write with such confidence (i.e. “presumably”) if he didn’t think they – or at least one of them – was on board to hear such a case soon. You are free to think I am coping – I can’t blame you for having zero confidence in the Court after this. It’s just how I read it. Even if I am correct, that wouldn’t make it okay. Another year or two of denied rights is incredibly damaging. As I have pointed out before, our lives are not that long, and not having our Second Amendment right fully realized for another year or two is a real loss. Moreover, there is absolutely nothing to be gained from percolation. Only antigun circuits ever here AWB cases, and their rulings are all very similar to each other.
We love you Justice Thomas, thanks for always being a real one.
I don’t like Justice Thomas embracing the plain text “step.” I guess I now have to concede there is such a step, bummer.
That said, the plain text is not hard to meet in an arms ban case, as Thomas points out.
Now that Thomas has confirmed I was wrong and there is a “plain text” step, I now urge the Supreme Court to gut it and make Bruen the one-step test it should be. Antigun circuits will always place “too high a burden” on Plaintiffs to avoid the historical analysis. The plain text step, if it is too exist, should be no more than a simple qualifier, not some rigorous analysis.
to* exist.
So while Thomas does reject my view that there is no meaningful plain text step, he does agree that it isn’t a hard step to meet.
Beautifully written. Too bad it is in a dissent from denial of cert, and not the first line of a per curiam ruling.
Thomas deals with the 4th Circuits dumb slippery slope argument.
Thomas agrees that percolation has no value.
He concludes by pointing out the Court’s logic in VanDerStok could allow for the federal government to declare AR-15s to be “machineguns” and ban them. A future Dem administration will no doubt try this.
So, what’s my speculation?
I think there was clearly a lot of negotiating behind the scenes, and Roberts/Barrett or one of them just doesn’t want another controversial issue on their plate right now.
They promised Kavanaugh they’d take up the issue soon, but who knows if they will keep that promise (no doubt the stream of Trump admin cases will continue for the whole four years). Hopefully the USDOJ will support the Duncan cert petition to add some pressure for a grant. If they deny Duncan, then the next best candidate is probably the Illinois cases about to be heard on final judgment by the Seventh Circuit.
It is interesting that Kavanaugh had no similar statement for Ocean State Tactical. As a judge on the DC Circuit, he dissented from an opinion (Heller II) upholding an AWB, but said as to magazines he would have remanded for further proceedings. It’s possible Kavanaugh is against AWBs, but would be accepting of a magazine capacity limit. I certainly hope that isn’t the case. I can’t blame anyone for dooming at this point, but we’ll keep doing the best we can. We need Justices Thomas and Alito replaced by fire-breathers like VanDyke who don’t care about suffocating decorum traditions and will openly call out their colleagues when they are being hacks. Thomas and Alito are the best justices on the Court, but they are aging and it is critical they be replaced with equally-strong but younger judges.
Finally, the percolation excuse must be especially frustrating for the Snope plaintiffs. Let’s say in a best case scenario, Kavanaugh is being truthful, and SCOTUS does grant a similar case and strikes down AWBs. The Snope plaintiffs are still out all of their legal fees, which do not get reimbursed if you are vindicated two years later. You only win back fees if your case wins. So they are just SOL.
Very cool SCOTUS, thanks.

These Are Trained Judges, Readers! Don’t Try This Yourselves at Home!
Readers of today’s opinion in Wilmer Cutler Pickering Hale & Dorr LLP v. Executive Office of the President (which I think got it largely right in its substantive analysis), might notice that it included 26 exclamation points (not counting one in a quote from President Trump). Here is just a subset:

The Founding Fathers knew this! …

Please—that dog won’t hunt! …

The causal chain contains at most two links, and it is certainly not highly attenuated! …

Please! …

I agree! …

Taken together, the provisions constitute a staggering punishment for the firm’s protected speech! The Order is intended to, and does in fact, impede the firm’s ability to effectively represent its clients! …

Thus, to the extent the President does have the power to limit access to federal buildings, suspend and revoke security clearances, dictate federal hiring, and manage federal contracts, the Order surpasses that authority and in fact usurps the Judiciary’s authority to resolve cases and sanction parties that come before the courts! …

I appreciate that the author is a federal judge, and I’m not, but my sense is that the exclamation points do more to detract from the persuasiveness of the opinion than to advance it. And even if it works for a judge, I would strongly recommend lawyers to avoid such massive use of exclamation points—indeed, even any use of exclamation points. (“Quod licet Iovi, non licet bovi,” as my father liked to quote.)

To pass along again (albeit imprecisely) an exchange I blogged about in 2007,

[Talk had turned to effective legal writing; B is a smart soon-to-be-law-student.]

A. Another thing I learned about legal writing: Don’t use exclamation points for rhetorical emphasis. And all-caps — don’t do that, either. Bold is also very bad. So is italics: It’s OK to use it to highlight important terms in quotes, or terms that you’re trying to distinguish from each other in your arguments, but don’t use it as an exclamation point.

B. But what then are you supposed to use for rhetorical emphasis?

A. How about … forceful arguments?

Supreme Court Allows DHS to Suspend Temporary Protected Status for Venezuelans.

The latest SCOTUS order shows the justices are taking a more nuanced approach to district court injunctions of Trump Administration policies than its critics, left or right.

Today, over a lone noted dissent, the Supreme Court stayed a district court injunction barring the Department of Homeland Security from terminating Temporary Protected Status for Venezuelans in the United States. The unsigned order in Noem v. National TPS Alliance noted that Justice Jackson would not have granted the stay.

The order was not an unqualified victory for the Trump Administration, as it does not extent–and expressly does not prejudice–challenges to the Administration’s withdrawal of other benefits or status designations for TPS beneficiaries. Those questions will be litigated separately.

The Court’s action was likely driven by the justices’ conclusion that the federal government is likely to prevail on the merits, as the decision whether to confer, maintain, or terminate TPS is largely discretionary. Indeed, it is not even clear TPS decisions are subject to judicial review (as the Administration argued in its stay application).

The Court’s order also highlights that, even within the constraints of the emergency docket, the justices are considering each application for relief on its own terms, and will police district court overreach where such overreach is clear. So while a majority of justices will not allow the Trump Administration to summarily deport individuals under the Alien Enemies Act without providing for adequate process, it is will also prevent individual district court judges from enjoining policy decisions that are clearly within the discretion of the administration.

This approach may not satisfy partisans, or those who presume the Trump Administration is entitled to prevail (or should be stymied) on every question (often without acknowledging, let alone understanding, the legal questions at hand), but it suggests the justices are endeavoring to pay attention to what the law actually allows or requires.

Department of Justice Announces Settlement of Litigation Between the Federal Government and Rare Breed Triggers

oday, in accordance with President Trump’s Executive Order Protecting Second Amendment Rights, as well as the Attorney General’s Second Amendment Enforcement Task Force, the Department of Justice announced the settlement of litigation between the federal government and Rare Breed Triggers.

“This Department of Justice believes that the 2nd Amendment is not a second-class right,” said Attorney General Pamela Bondi. “And we are glad to end a needless cycle of litigation with a settlement that will enhance public safety.”

In June 2024, in Cargill v. Garland, the Supreme Court held that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) exceeded its statutory authority by issuing a rule classifying a bump stock as a “machinegun.” In July 2024, the Northern District of Texas applied Cargill v. Garland to a device called a “forced-reset trigger” (FRT) and concluded that FRTs also cannot be classified as a “machinegun.”

The Department’s agreement with Rare Breed Triggers avoids the need for continued appeals in United States v. Rare Breed Triggers and continued litigation in other, related cases concerning the same issue. The settlement includes agreed-upon conditions that significantly advance public safety with respect to FRTs, including that Rare Breed will not develop or design FRTs for use in any pistol and will enforce its patents to prevent infringement that could threaten public safety. Rare Breed also agrees to promote the safe and responsible use of its products.

The cases that will be resolved under the settlement agreement are:

  • NAGR v. Garland, 23-cv-830-O (N.D. Tex.), on appeal 24-10707 (5th Cir.).
  • United States v. Rare Breed Triggers LLC, No. 23-cv-369 (E.D.N.Y), on appeal 23-7276 (2d Cir.).
  • United States v. Miscellaneous Firearms and Related Parts and Equipment Listed in Exhibit A, 23-cv-17 (D. Utah).
Updated May 16, 2025

SCOTUS to CASA to A.A.R.P.: In Case Of (Perceived) Emergency, Ignore The Rules, And Make Stuff Up
None of the usual rules will apply when the ACLU says there is an emergency.

The past 24 hours have been something of a Rorschach Test for the Supreme Court. In the birthright citizenship case, the Court made clear that in emergencies, the judiciary must retain the power to enter universal injunctions, even if Article III does not otherwise permit such injunctions. And in A.A.R.P. v. Trump, the Court made clear that in emergencies, the court should certify a class without going through Rule 23, and grant an ex parte tro without considering any of the usual TRO factors.

What lesson should lower court judges take away? In cases of perceived emergencies, forget all the rules and make stuff up. When the executive branch takes such actions we call it an autocracy. When the courts do it, they call it the “rule of law.”

I will have much more to say about this order in due course.