UPDATED [X 2], The Supremes’ View In East Bay III, And Why “It’s Complicated”…

Additional UPDATE: at the end of day, today — Thursday — the Ninth Circuit set new briefing deadlines on the injunction appeal, thus: “. . .opening brief in appeal No. 19-16773 is due on September 24, 2019. The consolidated answering brief is due on October 8, 2019. The consolidated optional reply is due with 21 days after service of the answering brief. No streamlined extensions of time will be approved. . . .”

The step the Supremes took yesterday, at end of day on 9/11, is rather. . . extraordinary. The nation’s highest court jumped into a dispute that is still pending on temporary orders, at a trial court level. That is three levels below them — and. . . that is an exceedingly rare bird (see concluding footnote). Just this week, as of September 9, 2019, the TRO record was complete, from the plaintiffs’ point of view, in establishing concrete harms from the proposed rule — to support restoring a nationwide injunction.

The trial level court then restored that nationwide injunction on the tenth. Still pending in that court are briefs due Friday. Then, as set forth below, the able Judge Tigar will decide without an argument, whether to once again restore the nationwide injunction. This order, as entered in Oakland on Tuesday, still stands, as of Noon Eastern — here on the twelfth:

. . . .Although Defendants have not filed a motion for order shortening time, the Court on its own motion orders Plaintiffs to file an opposition by September 13, 2019. The Court will then take the matter under submission without a hearing.

Signed by Judge Jon S. Tigar on September 10, 2019. . . .

Said another way, the new evidence — just ruled on on Tuesday, in Oakland, was NOT in the hands of the Supremes when it stepped in and imposed a stay, pending full argumentation in the lower courts. It was the Supremes after all, that said the plaintiffs in the trial courts — in Oakland — needed to develop a more fulsome record, to support the pending relief, when it last weighed in on these matters. The trial courts have now done so.

And so — yet another new injunction (against Trump’s lawlessness) could be in place within a few months after next Monday. We shall see.

It is more likely to go back to the Ninth Circuit first, though, in truth. Onward — but candidly, I flew my US flag upside down, this afternoon — as I try to resist the feeling that Chief Justice Roberts engaged in some political theater here — knowing it would be hailed by Trump endlessly on the campaign trail (despite the high likelihood the rule will still be enjoined when the Ninth Circuit dust all settles, in a few weeks’ time).

[Ultimately, and in a dark omen for the rule of law (given the brazen political thinking it would imply) Chief Justice Roberts may be thinking that by the time it would otherwise next reach the Supremes’ docket. . . Trump will no longer be in charge. But he’s made a Plato’s wager of sorts, on the chance Trump still is. . . in charge.] I certainly hope not, for all of us, on all counts.


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