Steve Vladeck

How about this:

Given that four justices during the oral argument in May went out of their way to stress the need for the full Court to issue a ruling settling the issue on a nationwide basis; & given that Justice Barrett memorialized that in her majority opinion, denying cert. wasn't gonna happen.

Maybe read anything I've written before assuming that I'm some caricature of a dunce?

Ah yes, that's me. Making it up.

There's also:

1) Not taking the Washington State case (in which Trump could've won on a *procedural* ground);

2) Clamoring for DOJ to bring this issue back on the merits during the May argument; and

3) DOJ going through the motions in doing so. Even *they* don't think they're going to win.

<frantically checks notes> I've got four minutes!

You could consider reading the entire thread setting out the case for that viewpoint and explaining which part you don't find persuasive before just calling me "clueless."

Or not.

In the district court vs. MSPB/immigration judges case, Chief Justice Roberts (as Circuit Justice for the Fourth Circuit) has already issued an administrative stay, and has ordered the respondents to reply to DOJ's emergency application by 4 p.m. next Wednesday:

www.supremecourt.gov/orders/court...

Nope. But 6-3 or 7-2.

The two key data points:

1) The justices' behavior at argument (with Kagan, Barrett, and Gorsuch all focused on ensuring the SG would appeal a loss so that the merits *would* come back to the Court); and

2) The SG's behavior since then, which is most pointedly *not* trying to win on any ground.

This is the government's petition. The Court didn't write anything.

This is going to provoke a lot of replies (to which I'm not going to respond) about how "the same people said Roe wouldn't be overruled," and "the same people said they wouldn't give Trump immunity."

Leaving aside that that *wasn't* me, there's still lots of evidence for this case being different.

If anything, ruling against the Trump administration may feel to some of the Republican appointees as a means of buying credibility: "look how we don't just rule for him in lock-step."

But they can't get that from denying certiorari. Hence the grant only in the one case without a procedural issue.

The SG didn’t challenge class certification below or in its cert. petition; this is a clean vehicle to the merits.

179. Whither the Birthright Citizenship Cases? Notwithstanding the Court's June ruling, President Trump's birthright citizenship executive order remains blocked—a broader lesson on the risks of paying attention to only one part of the news cycle.

I understand, as well as anyone, why folks are cynical about #SCOTUS. But even from the conservative justices' perspective, the birthright citizenship case is easy. And the Justice Department knows it, too; as I wrote in September, its bevavior in these cases has just been going through the motions:

Sure, but (1) that's not how this Court rolls; and (2) I suspect some of the justices especially *want* to be able to point to at least one high-profile case in which they ruled against the administration.

Because (1) that's not how this Court rolls; and (2) I suspect some of the justices especially *want* to be able to point to at least one high-profile case in which they ruled against the administration.

179. Whither the Birthright Citizenship Cases? Notwithstanding the Court's June ruling, President Trump's birthright citizenship executive order remains blocked—a broader lesson on the risks of paying attention to only one part of the news cycle.

I've written about this at some length, e.g., here:

www.stevevladeck.com/p/179-whithe...

#SCOTUS adds 4 cases to its docket, including one (but not both) of the birthright citizenship cases.

As for why only one, this is the case that cleanly presents the merits (where Court’s likely to rule against Trump); the other case would’ve required the justices to decide if states had standing.

This is a big deal not just because of the ongoing efforts to kneecap immigration judges, but also the more general fight in many contexts over which challenges by federal employees to what the administration is doing can go to district courts vs. which must go to the Merit Systems Protection Board.

25A662.pdf | Powered by Box

The Trump administration has filed its 32nd emergency application with #SCOTUS, this one seeking to freeze a Fourth Circuit ruling in a dispute over whether district courts can hear challenges to limits on what immigration judges are allowed to say publicly:

georgetown.box.com/s/0ovhpw5pes...

2. Opinions and Orders This week's issue offers an introduction to the two very different ways in which the Supreme Court resolves disputes, and why our attention tends to focus too much on one at the expense of the other

I wrote about “stealth” dissents (and provided pretty persuasive evidence of one from 2016) as part of this early newsletter post:

www.stevevladeck.com/p/2-decipher...

25A608 Order.pdf | Powered by Box

Link: utexas.box.com/s/b91ggd9h1k...

#BREAKING: Over dissents from the three democratic appointees, #SCOTUS puts Texas's new House maps back into effect for (and, presumably, through) the 2026 midterms.

The three Democratic appointees, in an opinion by Justice Kagan, dissent.

I'll post the ruling shortly.

Bonus 195: The Mark Kelly Meshugas Secretary Hegseth has threatened to court-martial a sitting U.S. Senator for a ... truthful video. Even though Kelly *is* subject to court-martial, such a prosecution would face insuperable obstacles.

For this week’s bonus “One First,” I wrote about the legal questions surrounding any attempt to court-martial Senator Mark Kelly—and why (1) it’s not likely to go anywhere; (2) the threat is still ominous; and (3) the real story continues to be what the military is *doing,* not who’s criticizing it:

A huge thank you to @stevevladeck.bsky.social for this incredible blurb. Steve is one of the sharpest observers of our legal system—and one of the most generous humans in it.

If you haven't read his book, The Shadow Docket, what are you waiting for? Read it, then The Pain Brokers (out Jan. 13)!

Bonus 195: The Mark Kelly Meshugas Secretary Hegseth has threatened to court-martial a sitting U.S. Senator for a ... truthful video. Even though Kelly *is* subject to court-martial, such a prosecution would face insuperable obstacles.

For this week’s bonus “One First,” I wrote about the legal questions surrounding any attempt to court-martial Senator Mark Kelly—and why (1) it’s not likely to go anywhere; (2) the threat is still ominous; and (3) the real story continues to be what the military is *doing,* not who’s criticizing it:

Looks like we've identified the conflict that led Senator Cruz to cancel this afternoon's Subcommittee hearing on "Impeachment: Holding Rogue Judges Accountable."

www.judiciary.senate.gov/committee-ac...

Yup. We just found out last night.

POSTPONED: Impeachment: Holding Rogue Judges Accountable | United States Senate Committee on the Judiciary United States Senate Committee on the Judiciary

The Senate Judiciary Committee hearing on impeachment of "rogue" judges has been POSTPONED.

It was supposed to be this afternoon.

www.judiciary.senate.gov/committee-ac...

As you might divine from the statements of the majority witnesses, the Subcommittee is focused specifically on Chief Judge Boasberg in D.D.C. and Judge Boardman in D. Md.