I think it is quite correct to say that the majority’s “Assuming as we do” in quotes is very directly a back of the hand bit** slap with all the bones in it aimed at this neophyte jurist and at all of these DC judges who are rather clearly as you say, deliberately throwing sand in the gears of a four year administration for political purposes, well outside the four corners of the law. The fact that a judge felt it necessary or even proper to cite the Sotomayor dissent as support for his action was particularly tone deaf, if not that judge flipping off the clear Scotus action. The court’s reference to possible use of a mandamus action by the administration to achieve any further corrective action necessary on any other impertinence by that judge was the Chef’s Kiss.
While I think that judge will now be chastened, I’m not so sure that other leftist-leaning judges will be substantially dissuaded from doing as they damn well please in their own sandbox, particularly any senior or senior stats judges. I think it’s going to take more shadow docket slap downs to stem the tide and perhaps, the removal of one or more judge’s from some of these existing judges or assigned judges in newly filed cases. Or the pursuit of multiple disciplinary filings by the administration. The fairly uniform stats on the public’s approval and favoring of deportations of ALL illegal aliens (without regard to length of stay or criminal history) even after several weeks of news networks trying to make hay with masked up ICE actions suggest that the public may be favorably in the fight for the long haul. I hope so. Kagen’s concurrence is especially helpful as a clear smoke signal to the restless li’l injuns’ in the Art.III “inferior courts.”
It is interesting that completely independent of each other, Andy McCarthy and I read the "Assuming as we do" language the same way -- as have you. It is a gratuitous reference meant to convey the message "You have one more chance" along with a warning for what comes next. If the Court has to resort to mandamus, Murphy will be off the case. "You are a bit player in this opera kid, so act like it."
I thought the majority’s use of that phrase deserved another look. I did some checking though limited. It seems that Justice Jackson has herself used the phrase, “assuming as we do” in several cases, at least according to AI. I haven’t checked the accuracy of that AI search result, but it is an interesting phrase. And, if the AI search is accurate, it’s possible that the context of that usage is such that the 6 justices were pointedly, publicly hoisting her on her own petard. Right in her face. I think I’ll take the time to check…..
Judge Murphy did not directly cite Sotomayor’s dissent, as that would have immediately gotten him overruled by SCOTUS. (Dissents have no precedential authority.) He was more devious than that. He only adopted Sotomayor’s argument without directly citing her dissent, hoping to slide under the radar. Bad move, as SCOTUS was paying attention.
I haven’t read Murphy’s second, so-called remedial order but according to SCOTUS’ unsigned opinion, Murphy did cite Sotomayor’s dissent as justification for the second order.
“Later that day, however, the District Court
issued a minute order stating that the May 21 remedial or-
der “remain[ed] in full force and effect,” “notwithstanding”
our stay of the preliminary injunction. ECF Doc. 176. The
only authority it cited was the dissent from the stay order.”
And that’s why I found it so shocking ( if true!). It’s hard to call it a rookie mistake because it’s shockingly stupid at any level of lawyering.
Just curious, but didn’t Judge Boasberg do something similar in the J.G.G. case, where he initially wanted the illegals sent to Venezuela returned to the US via a ‘nationwide injunction, but SCOTUS ruled that the individuals had to file for habeas in the districts where they were being held, thus removing Judge Boasberg from this case, but Boasberg advised that, while he was not the venue for issuing that ruling, President Trump was in contempt, because he did not follow Boasberg’s original ruling (that SCOTUS disallowed)…????
It seems that once the High Court ordered its decision in the case, she understood she and all other judges were beholden to that decision. In other words, she was acting like a principled Justice.
Why should the Article 2 branch defer to an inferior court that was created by the Article 2 branch of government? Just declare their rulings Constitutionally invalid. Or take it a step further and send US Marshals to arrest judges that flout the Constitution.
Your summary and interpretation was very helpful to me ( and I suspect others) who have no legal education other than wants is self taught and who also do not have enough to to read and parse every decision. Particularly at a time such as this end of term when several consequential decisions are issued in a short period of time.
I think it is quite correct to say that the majority’s “Assuming as we do” in quotes is very directly a back of the hand bit** slap with all the bones in it aimed at this neophyte jurist and at all of these DC judges who are rather clearly as you say, deliberately throwing sand in the gears of a four year administration for political purposes, well outside the four corners of the law. The fact that a judge felt it necessary or even proper to cite the Sotomayor dissent as support for his action was particularly tone deaf, if not that judge flipping off the clear Scotus action. The court’s reference to possible use of a mandamus action by the administration to achieve any further corrective action necessary on any other impertinence by that judge was the Chef’s Kiss.
While I think that judge will now be chastened, I’m not so sure that other leftist-leaning judges will be substantially dissuaded from doing as they damn well please in their own sandbox, particularly any senior or senior stats judges. I think it’s going to take more shadow docket slap downs to stem the tide and perhaps, the removal of one or more judge’s from some of these existing judges or assigned judges in newly filed cases. Or the pursuit of multiple disciplinary filings by the administration. The fairly uniform stats on the public’s approval and favoring of deportations of ALL illegal aliens (without regard to length of stay or criminal history) even after several weeks of news networks trying to make hay with masked up ICE actions suggest that the public may be favorably in the fight for the long haul. I hope so. Kagen’s concurrence is especially helpful as a clear smoke signal to the restless li’l injuns’ in the Art.III “inferior courts.”
It is interesting that completely independent of each other, Andy McCarthy and I read the "Assuming as we do" language the same way -- as have you. It is a gratuitous reference meant to convey the message "You have one more chance" along with a warning for what comes next. If the Court has to resort to mandamus, Murphy will be off the case. "You are a bit player in this opera kid, so act like it."
I thought the majority’s use of that phrase deserved another look. I did some checking though limited. It seems that Justice Jackson has herself used the phrase, “assuming as we do” in several cases, at least according to AI. I haven’t checked the accuracy of that AI search result, but it is an interesting phrase. And, if the AI search is accurate, it’s possible that the context of that usage is such that the 6 justices were pointedly, publicly hoisting her on her own petard. Right in her face. I think I’ll take the time to check…..
Judge Murphy did not directly cite Sotomayor’s dissent, as that would have immediately gotten him overruled by SCOTUS. (Dissents have no precedential authority.) He was more devious than that. He only adopted Sotomayor’s argument without directly citing her dissent, hoping to slide under the radar. Bad move, as SCOTUS was paying attention.
I haven’t read Murphy’s second, so-called remedial order but according to SCOTUS’ unsigned opinion, Murphy did cite Sotomayor’s dissent as justification for the second order.
“Later that day, however, the District Court
issued a minute order stating that the May 21 remedial or-
der “remain[ed] in full force and effect,” “notwithstanding”
our stay of the preliminary injunction. ECF Doc. 176. The
only authority it cited was the dissent from the stay order.”
And that’s why I found it so shocking ( if true!). It’s hard to call it a rookie mistake because it’s shockingly stupid at any level of lawyering.
Just curious, but didn’t Judge Boasberg do something similar in the J.G.G. case, where he initially wanted the illegals sent to Venezuela returned to the US via a ‘nationwide injunction, but SCOTUS ruled that the individuals had to file for habeas in the districts where they were being held, thus removing Judge Boasberg from this case, but Boasberg advised that, while he was not the venue for issuing that ruling, President Trump was in contempt, because he did not follow Boasberg’s original ruling (that SCOTUS disallowed)…????
It seems that once the High Court ordered its decision in the case, she understood she and all other judges were beholden to that decision. In other words, she was acting like a principled Justice.
Why should the Article 2 branch defer to an inferior court that was created by the Article 2 branch of government? Just declare their rulings Constitutionally invalid. Or take it a step further and send US Marshals to arrest judges that flout the Constitution.
Your summary and interpretation was very helpful to me ( and I suspect others) who have no legal education other than wants is self taught and who also do not have enough to to read and parse every decision. Particularly at a time such as this end of term when several consequential decisions are issued in a short period of time.