Steve Vladeck

Bonus 215: How I Write the Newsletter I've received a number of questions from readers about the process involved in how I write—and decide what to write about in—the newsletter. This week's bonus issue attempts a peek behind the curtain.

This may not be that interesting given everything going on in the world, but this week's bonus issue of "One First" takes an internal look at the mechanics of writing the newsletter—including when and how I pick topics and when and how it gets put together.

(TL;DR: It's triage, all the way down.):

It's March 12.

Don't worry; it's coming!

I mean, not if we count how busy it's been on emergency applications...

Except it really doesn't compared to as recently as 10 years ago. Now, we can get two major rulings at the same time on a random Monday night with no warning. That's ... better than writing about politics, but wildly different from how the Court used to make news.

Bonus 215: How I Write the Newsletter I've received a number of questions from readers about the process involved in how I write—and decide what to write about in—the newsletter. This week's bonus issue attempts a peek behind the curtain.

This may not be that interesting given everything going on in the world, but this week's bonus issue of "One First" takes an internal look at the mechanics of writing the newsletter—including when and how I pick topics and when and how it gets put together.

(TL;DR: It's triage, all the way down.):

Unpopular position of the day: The use of JAG lawyers as Special Assistant U.S. Attorneys does *not* violate the Posse Comitatus Act—because, as a 2017 brief of mine explained (see note 7) Congress has *expressly* authorized military lawyers to represent the United States in civil or criminal cases:

Technically it was the Supreme Court for New York County, so not quite as spicy.

215. The Supreme Court and Vietnam The obstacles to litigating the grave legal questions arising from the United States' military operations against Iran can be traced to the Court's refusal to confront similar questions about Vietnam.

It may seem odd that a Supreme Court seemingly willing to stick its nose into the middle of just about every legal and policy issue has effectively closed the door to litigating the legality of the U.S. war against Iran. As today’s “One First” explains, though, it set that precedent during Vietnam:

215. The Supreme Court and Vietnam The obstacles to litigating the grave legal questions arising from the United States' military operations against Iran can be traced to the Court's refusal to confront similar questions about Vietnam.

It may seem odd that a Supreme Court seemingly willing to stick its nose into the middle of just about every legal and policy issue has effectively closed the door to litigating the legality of the U.S. war against Iran. As today’s “One First” explains, though, it set that precedent during Vietnam:

And her 10-year-old sister. If this isn’t the most first born v second born moment ever idk what is…

(Yes my kids are in the row ahead of me on a flight. Follow along for more parenting tips. Although maybe don’t…see last post).

Ok but why is this what our 7-year-old is designing on Canva??

I’m currently writing a book about what’s really wrong with #SCOTUS and how to fix it.

Suffice it to say, this ain’t it:

The "adequate and independent state grounds" doctrine is a 150-year-old interpretation of the statute authorizing #SCOTUS review of state courts under which the Supreme Court *can't* review a state-court ruling that rests on a state law basis that's both conclusive and regularly/neutrally applied:

A savvy reader points out that, even under Alito's distortion of the facts, #SCOTUS *still* would've lacked jurisdiction to grant a stay in Malliotakis—because the New York Court of Appeals ruling Alito treated as the "final" state court decision rested on an "adequate and independent state ground."

Bonus 214: Emergency Relief from State Courts At a moment in which the Supreme Court's emergency docket is *already* busier than ever, Monday's stay grant in the Malliotakis case wrongly expands it to encompass countless state-court rulings, too.

Monday night’s #SCOTUS ruling in the Malliotakis cases necessarily expands the Court’s ability to grant emergency relief in cases coming from *state* courts.

As today’s bonus “One First” explains, that’s both a really big deal and one that’s based on a deeply disingenuous portrayal of the facts:

Bonus 214: Emergency Relief from State Courts At a moment in which the Supreme Court's emergency docket is *already* busier than ever, Monday's stay grant in the Malliotakis case wrongly expands it to encompass countless state-court rulings, too.

Monday night’s #SCOTUS ruling in the Malliotakis cases necessarily expands the Court’s ability to grant emergency relief in cases coming from *state* courts.

As today’s bonus “One First” explains, that’s both a really big deal and one that’s based on a deeply disingenuous portrayal of the facts:

Second (and *last*) ruling from #SCOTUS today is Galette v. N.J. Transit Corp.

For a unanimous Court, Justice Sotomayor holds that New Jersey Transit is *not* an arm of the state, and thus not entitled to New Jersey's sovereign immunity:

www.supremecourt.gov/opinions/25p...

First (but *not* last) ruling from #SCOTUS is in Urias-Orellana v. Bondi.

For a unanimous Court, Justice Jackson holds that the "substantial evidence" standard applies to federal court review of certain decisions by immigration "judges":

www.supremecourt.gov/opinions/25p...

"One box" of #SCOTUS decisions today = 1-2 rulings coming up at 10 ET.

1/9: In the New York redistricting case, Justice Alito's justification for why #SCOTUS even had *jurisdiction* to issue a stay is based upon a remarkably misleading portrayal of the state court proceedings.

I realize this is technical, but I wanted to write a short thread to explain the shadiness:

Yes -- this is a nuance I omitted from the thread. "Appealing" to the Court of Appeals would have required one additional step, but that step meant there was still a pathway to further review in the state courts that the parties didn't pursue.

"Some may say a different standard should apply where alleged gang members, who were undoubtedly removable under other authorities, were at risk of being removed."

No, Josh. I'd say a different standard applies to #SCOTUS's jurisdiction over state courts vs. lower federal courts—because it's true.

Excellent Thread by @stevevladeck.bsky.social. Not “hyper-technical.” It goes to the heart of why this Court has forfeited the trust of the parts of the profession who know and care about how litigation is supposed to work.

214. The Court's (Selective) Impatience is a Vice The only theme uniting Monday night's twin grants of emergency relief is the Republican appointees' willingness to upend long-settled limits on the Court's power when, but only when, they *want* to.

9/9: This may seem hypertechnical, but it underscores the broader point I made in "One First" about *both* of the Court's grants of emergency relief last night—that the Republican appointees' impatience is leading them to run over settled legal constraints to reach the merits in these cases.

/end

8/9: But he can only make that claim by distorting the order of events, and by igoring the fact that the applicants could have gone back to the Court of Appeals after the Appellate Division's 2/19 ruling, but *chose not to.*

Thus, the ground on which Alito rested #SCOTUS's jurisdiction is bollocks.

7/9: Alito thus claims (in the next sentence) that the applicants had "nowhere else to turn" for relief besides #SCOTUS, entirely because he asserts that the Court of Appeals' 2/11 ruling transferring the case to the Appellate Division was *effectively* the final word of the state's highest court.

6/9: Now come back to what Justice Alito wrote about all of this.

Read the last sentence here closely:

Alito makes it seem as if the Court of Appeals' February 11 transfer to the Appellate Division came *after* the Appellate Division had already denied a stay. But it came *eight days beforehand.*

5/9: At that point, nothing would've stopped Malliotakis and the other defendants from going back to the NY Court of Appeals and asking it for relief again, now that the intermediate court had said no.

Instead, they filed ... nothing.

That fact, alone, should have deprived #SCOTUS of jurisdiction.

4/9: Instead of waiting for the Appellate Division to rule, the defendants then went straight to #SCOTUS — filing their applications for emergency relief the very next day, i.e., February 12.

But on February 19, the Appellate Division *did* rule, and it denied the applications for stays:

3/9: In this case, after losing in the trial court, Rep. Malliotakis and the other defendants *simultaneously* sought relief from NY's highest court *and* its intermediate court, the "Appellate Division."

On February 11, the Court of Appeals said "you have to go to the Appellate Division first":