The Genius v. SCOTUS

We are living in Jonathan Mitchell's world. And the judicial supremacists can't stand it.

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In 2008, I took Jonathan Mitchell's seminar on habeas corpus at George Mason. It was, without question, the hardest class of my law school career. The questions he posed in class were devastating. He had such a commanding understanding of every nuance of AEDPA. No matter which way I turned, Mitchell would flip the question. Indeed, he would anticipate every twist and turn to foreclose possible answers to his hypotheticals. At one point, the only answer I could come up with was "well, the statute is titled the "effective death penalty act," so it should be construed to make executions more effective. Mitchell smiled, and then said that wasn't a real rule of law.

I had déjà vu during the S.B. 8 arguments yesterday. Several justices were intent on finding some way, any way to permit this suit to go forward. They conjured up creative and cute approaches that would modify longstanding doctrine. Indeed, Justice Breyer seemed most sensitive to the risks of permitting the suits. But at every turn, they were stymied by Jonathan Mitchell's brainchild. Yesterday, the Justices were in the same spot as this hapless 3L. He was ahead of them at every turn.

At one point, Justice Kagan expressed her frustration. She said that "some geniuses came up with a way to evade the commands" of Ex Parte Young. She was obviously referring to Mitchell. Justice Kavanaugh added, "there's a loophole that's been exploited here." Again, Mitchell.

Of course, the difference between a 3L and a Supreme Court justice is that a 3L cannot change the law. Us mere mortals are stuck with governing precedent. But judicial creativity, bolstered by judicial supremacy, has no limits.

We are living in Jonathan Mitchell's world. And the judicial supremacists just can't stand it.

NEXT: The Due Process Problems With Enjoining Texas Clerks (Updated)

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  1. Yawn, you don't have to rush to write four poorly-reasoned reactionary blog posts in one morning. But, we all know you can't be stopped!

    1. The bizarre thing is how many of you hate Josh so much that you waste your time reading his articles and berating him for daring to waste your time by writing them.

      I read his articles because his enthusiasm for something I generally despise forces me to think and learn. You fools read them so you can rant about being forced to waste time reading them. I sometimes think what you hate the most is the same as almost all politicians hate about Trump: they can't control him, they can't influence him, and he just ignores them. You guys can't stand that Josh thinks independently and for himself, but you really hate that others, like me, might actually read him and learn something which you don't like.

      1. A ab,
        While that is certainly possible (I doubt it, but since I can't read the minds of other people; I allow for the possibility.) . . . I think it's much more like that the following is true. Someone might say:

        "I have been following the VC for ___ years, and it's one of the few legal blogs/blegs I go to for exposure to a wide variety of legal perspectives. Of course, I disagree with many of the things I read here, but that's a feature, and not a bug. During these past ____ years, in the thousands of OPs I've read, my disagreements have sometimes been strong ones, and I've posted and written about those that effect a strong negative reaction. So, for David Bernstein (back when he posted at least 50+ times a year), I might write something harsh 2 times. When Eugene would post (back then, maybe 200+ times a year, I might write something similar 2 times. About Ilya, once or twice a year. And so on.

        So, although there are few or no Conspirators that have overall viewpoints that mirror my own, I use their OPs as a learning experience.

        Josh is different. It is not that he writes things I disagree with. (Again, that's usually a feature and not a bug.) It's not that I find his legal analysis often quite weak. . . well, that's part of it, I guess. Mostly, it's that I find him to have an ethical blind spot in many areas. That I believe this does NOT make my impression accurate, of course. It's only my own reaction and only my own interpretation. But, for those of us who question Josh's ethics or morality--why on earth would we ever NOT comment about this? I presume that Eugene asked Josh to blog here, precisely so that Josh's massive volume of posts would elicit responses, yes? I presume that Josh is writing to inform and influence, and part of that is receiving critical feedback, is it not?"

        If I were running a legal blog, Josh would not be the sort of person I'd ask to participate. But, given that everything I know about running such a blog would fit inside Eugene's pinkie; I'm happy to concede that Eugene knows something about Josh that I am missing, or overlooking, or am unwilling to see."

        Josh does not care what I think, or write, about him. He's doing what's best for him, and I don't fault him for that. And when future President Tiffany Trump nominates Josh to the federal bench; Josh will have the last laugh on all of us!!! 😉

        1. The complaints I am talking about are not legal differences. They are the kind I responded, drivel with no argument, just plain drivel. Here, read it again, and tell me what his problem is with the article itself:

          Yawn, you don't have to rush to write four poorly-reasoned reactionary blog posts in one morning. But, we all know you can't be stopped!

          I learn from people who have actual disagreements with what Josh wrote. People who post drivel, whose whole argument is some insult about Josh's third-rate university, are the ones who waste time complaining how Josh has forced them to waste their time.

          1. I didn't complain that Josh wasted my time so no need to worry!

            1. I appeal to Josh's sense of self respect and decency, in the hope that he can maintain some sort of dignity, albeit as a heel.

              1. You're just an attention-wasting asshole, behaving in exactly the way that Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf points out.

      2. I didn't berate him for wasting MY time.

      3. And I invited Josh to my school for a panel and he was very polite (though his behavior on the panel was a bit unbecoming, eating pizza and surfing while everyone else spoke). I think your assumptions about me are misplaced!

  2. It's starting to look like the net result of this enactment will be s Supreme Court opinion that 1. Makes it easier for federal judges to issue broad orders against state laws and 2. Reaffirms that the constitution protects the right to an abortion.

    What a genius!

    1. And Prof. Blackman's posts are espousing Scooby Doo jurisprudence- "and we would have gotten away with banning abortion if it weren't for you dang kids!".

    2. Texas did give the country Roe v. Wade and Whole Woman's Health v. Hellerstedt, which clearly furthered the cause of pro-choice advocates across the country. Seems only fitting that the state would be the one to then provide an expanded method of pre-enforcement against state abortion laws.

      Texas is living in the Supreme Court's world, and Josh Blackman just can't stand it.

  3. The Supreme Court can do whatever it wants as long as 5 justices agree. Poking holes in opinions like Heller and Obergefell is pretty easy even with my little 125 IQ pea bwain.

  4. I know Blackman claims to not read the comments, tweets, and subtweets, but this post has the classic "guy with a wall of monitors who definitely name searches himself (despite claiming he doesn't) sees other legal commentators are mocking him from a judicial supremacy angle and feels irresistible urge to post again" vibe..

    1. I know Blackman claims to not read the comments, tweets, and subtweets,

      Afraid he might learn something?

      1. Naw, that's your schtick for insulting him; you are scared to death someone might learn things from Josh that you deem immoral.

        1. What histrionic bullshit. It's just dumb crap and no amount of whining here is going to stop anyone from reading him, letting alone a result in the opposite effect, so who the hell are you kidding? More self-victimization from someone that whines about how liberals do it. Yaaawn. No better than a Blackman post, that's for sure.

        2. Oh, bullshit.

          I know you think highly of yourself, but I wasn't aware your ego extended to thinking you can read my mind. Plus, that business about someone learning things I find "immoral" makes zero sense.

          I find Josh's posts interesting in a sort of horrifying way. The guy strikes me as something of an egomaniac who imagines that his every thought will enlighten the world. Who else goes on at great length about his favorite airplane seat?

          But what really horrifies me is that he seems to enjoy at least some status in the world of right-wing legal academics. So I like to point out, for the benefit of his other readers, that maybe he doesn't deserve that.

          Plus, I'm the kind of guy who sort of enjoys poking at pretentions.

  5. All this fawning over Mitchell reminds me of the reporting about Peter Richter, the lawyer famous (in Germany) for defending the neo-nazi NPD party in its various legal troubles.

    https://de.wikipedia.org/wiki/Peter_Richter_(Jurist)

    Apparently he's a really good lawyer. He convinced the constitutional court in Karlsruhe not to ban the NPD after all, even though the constitutional option of banning political parties was literally created in order to stop future incarnations of the Nazi party. But he's also a committed neo-nazi.

    1. An apt comparison. It is painfully obvious that Josh's every step is calculated to get a know-nothing in the mold of Trump to appoint him to a position of some power.

  6. Prof. Blackman keeps challenging the concept that the Supreme Court is the supreme law of the land, and so far because everyone is buried in the details of the Texas two step, no one has set out to challenge this position. So please allow me to do so.

    First of all in a literal sense the rulings of the Supreme Court are not the supreme law of the land. The supreme law of the land is the Constitution, and since it may be amended by the people, in the form of a Constitutional Convention or by their elected representatives, it is the people who make and create the supreme law of the land.

    But amending the Constitution is difficult and rare, so rare that it has been rarely done since the Bill of Rights was enacted. So we are left to consider on a de facto basis what is the supreme law of the land. Well, for most Americans it is the decisions of the Supreme Court, there being no other court higher than the Supreme Court.

    And until a ruling by the Court is either overturned by amending the Constitution, or by Act of Congress on laws that are not constitutional controversal, the supremecy of the rulings of the Court seems appropriate. This is not to say that those of us who support that concept agree with what the Court says, but we accept it because the only other choice is lawless anarchy. Societies have tried that, it does not end well.

    And guess what, most, in fact almost all Americans are fine with this, because there has to be some supreme authority and the Court best fits that role. But somehow people who support this view are denigrated by people like Prof. Blackman and the concept termed, derogatively, 'judicial supremecy'.

    Notice several things here. For one, the concept that the Court rulings are not the 'de facto' law of the land is challenged by individuals like Prof. Blackman who disagree with some of the decisions, and so their positions are driven by politics and preferences, not law. Secondly, and most importantly they provide no alternative that would prevent judicial anarchy.

    Suppose for example that the Court determines that abortion rights are to remain in place. Suppose also that litigation of SB 8 under the situation where it is in place until ruled otherwise takes 5 years, which is a reasonable estimate of how long supporters could delay a Court ruling. At the end of 5 years the law is determined to be unconstitutional and unenforeceable. So during the 5 year period Constitutional rights of those who would seek an abortion have been taken away. And there is no way to redress that harm. Not exactly a system of justice, is it? (For those of you who oppose abortion rights, consider this example with gun rights)

    If this is the society Prof. Blackman and those who support his position want, they need to be explicit about it and have it tested in the electoral process. The betting is it would be overwhelmingly defeated.

    1. Well said, Sidney.

      The problem is that Blackman and too many others see all this as just a game, and are oblivious to consequences. They want to win the game by being oh-so-clever, and maybe enhance their reputations in certain circles, or advance their careers.

      If the scenario you describe came to pass I imagine Blackman would be delighted rather than appalled.

      1. There's obviously a game aspect of the legal system. Plaintiffs forum shop, for instance. Legislatures try to write laws that push SCOTUS to limit doctrines they don't like (that's what a lot of abortion statutes are about). Litigants seize on waiver and forfeiture arguments.

        But what we all know when we are engaging in gamesmanship is that courts don't have to accept it. They can push back.

        Prof. Blackman seems to think that once a litigant comes up with some incredibly clever gamesmanship, that's it. That's the end. The courts can't push back. It's unfair! We came up with this amazing scheme!

        And that's just ridiculous, and a law professor ought to know better.

        1. It’s a more sophisticated version of “law as magic words” that sovereign citizens believe in. As if SB8 is a spell for avoiding pre-enforcement review that the ancient magic texts couldn’t anticipate and therefore there is no counter. And like the sov cits, there is shock and some anger when it doesn’t work that way in the real world.

          1. But Josh's flag has fringes!!!

        2. Judges articulated and changed rules in response to past games playing, but it's foul play for them to do so now.
          *blank stare*

          1. Bingo.

            SB8 is written to conform with Casey so long as Casey is not modified.

            But it explicity takes account of the possibility that Casey WILL be modified.

            Determined idiots like Crummyton insist that this makes the law unconstitutional.

            That only discredits him.

      2. But isn't it a game? Many thought the original ruling was a game of twisting things and threading a needle to arrive at a result. The rules thus became setting justices who would thread a different needle.

        40 years later, that effort starts to come to fruition.

        And the response by the "it's not a game!" side? Let's pack the court!

        I.e. it's a game, and the other side, having done things by our rules, over 40 years, finally makes the final push to get over the goal line, oh dear, so we will change the rules of the game.

        Since most, even here, seem to be goal-oriented hacks, I will issue my usual disclaimer, I am fine with abortion and discovering new unenumerated rights of the people, but not new unenumerated powers for government to control the people.

  7. Two questions that I have yet to see an answer to:
    1) Why can't the Supreme Court just rely on the All Writs act here to enjoin the law without reaching any novel or new constitutional angles?
    2) If the argument was made, I didn't see it (and understand why it might not have been made), but why can't the Court just say Article III gives us the power to stop subordinate courts in the various states from usurping our authority in clear cut cases where their actions would violate settle law? Then leave it at that.

    1. Because one of the rules for shoring up a State is the pretense of The Rule Of Law, and that requires ever more contortions of The Law to get the results wanted by The Top Men. Every contortion binds them ever more closely to more contortions when the current contortions restrict their choices.

      1. I realize we are at the "make shit up" stage of Late Empire where the rule of law is nothing but words written in a book. But, still, seems easy to here to just say "we are doing it just this one time because that is what we are going to say...." instead of engaging in such contortions needlessly.

    2. 1) Why can't the Supreme Court just rely on the All Writs act here to enjoin the law without reaching any novel or new constitutional angles?

      Prof. Blackman would argue — I mean, he has — that there's no such thing as "enjoin the law." One can only enjoin a person from enforcing a statute, not a statute itself. And to enjoin a person from enforcing a statute, you have to identify the actual person doing said enforcing and hale him before a court. And SB8 is designed to get around that by authorizing anyone in the U.S. (or perhaps the world!), except the easy-to-identify state officials, to enforce the law.

    3. Because Sb8 does not in fact clearly, or at all, violate settled law.

  8. While I appreciate the creativity that was required in developing S.B. 8, I also feel that it was a blatant violation of our Oath as attorneys where we swear to uphold the Constitution.

    Hence, there is a good argument that Mitchell should be disbarred, especially given the 14th Amendment which states: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

    That is precisely what Mitchell has done: He created a law that violates established rights of citizens of the U.S. He and the Texas legislators that signed on to this bill have potentially destroyed lives in the supposed attempt at saving lives. The statistics indicate that all that happened was that women crossed the border. Very few lives were saved, but lives were upended.

    While he certainly seems like a smart attorney, his ethics are questionable since S.B. 8 is an intentional/deliberate attempt at depriving rights currently recognized under our legal system.

    While I understand that one might not agree with precedent, this was not the way to change the law and even the most conservative of Justices are uncomfortable with it. I hope that they craft a way that disables this type law, even if it means they need to create new law based on equity and Federal supremacy, or even if it it means they overturn precedent...

    I'm not one to say this lightly, but this law is pure evil and it has opened Pandora's Box.

    1. It was able to open Pandora's box only because The Powers That Be had locked up so many special cases and twisted rationalizations inside that box. Every time they come up with some new exception to get the result they want, like qualified immunity, or Roe v. Wade, they have locked fewer generations into yet another Pandora's box, so future generations have to not only open that Pandora's box, they have to devise an even more contorted Pandora's box to put it back in.

      1. did you just have a stroke

      2. I don’t think you’re using the Pandora’s Box metaphor correctly.

        1. I don't think you understand language you disagree with.

          1. No. I understand language, including figurative language, which is how I know you don’t understand how to use this particular metaphor. Pandora’s Box was filled with ills that were unleashed on humanity and could not be returned to the Box. When you use it metaphorically, you’re suggesting that an act is going to “open the box” and unleash all sorts of ills on society.

            This phrase, however, is completely mixed up:

            “they have locked fewer generations into yet another Pandora's box, so future generations have to not only open that Pandora's box, they have to devise an even more contorted Pandora's box to put it back in.”

            Future generations are not an ill. You don’t lock people into the Box. If you did, that would be good because the Box is ideally locked with all the ills. You’re not supposed to want to open the Box, that’s the point of the story. You don’t put things back into the Box or create a different “contoured” Box.

    2. I think it would be better to just say nice try but no and let it go at that. If Mississippi loses, I wouldn’t disbar the people who crafted its law either.

      Lawyers are entitled to make creative arguments to advance the interests of their clients. It’s what they do.

      And at the end of the day, it’s what Jonathan Mitchell did.

      The fact the Supreme Court initially accepted his arguments at the shadow docket stage makes it very clear they are non-frivolous.

      At the end of the day, his side will likely lose, as one side or the other inevitably does. Let him pick up his ball and go home.

      1. "The fact the Supreme Court initially accepted his arguments at the shadow docket stage makes it very clear they are non-frivolous."

        No one is arguing that the Texas law is frivolous, in fact it is just the opposite, it is as serious attack on our Constitutional democracy where laws and not men (or women) govern and control.

        But the fact that the Supreme Court initially accepted the argument means only that there are five Justices on the Court who are so personally opposed to abortion rights that they would allow a highly toxic legal strategy to allow them to not only by-pass the traditional method of overturning a decision like Roe but to do so in a cowardly way that does not put them on record as overturning Roe and furthermore if upheld will do lasting damage to the nation.

    3. SB8 doesn't abridge any privilege or immunity of any citizen of the United States. You just assert the contrary without identifying any way in which it might, which is tiresome,

  9. Perhaps the better part of discretion would be to wait to see what SCOTUS actually does? If they surprise everyone, it wouldn't be the first time.

  10. "A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, . . . denies or takes away the equal protection of the laws violates the constitutional inhibition; and, as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning." Cooper v.Aaron, 358 U.S. 1, 16-17 (1958), quoting Ex parte Virginia, 100 U.S. 339, 100 U. S. 347. Constitutional rights declared by the Supreme Court ¨can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation whether attempted ´ingeniously or ingenuously.´" Cooper, at 17, quoting Smith v. Texas, 311 U.S. 128, 311 U.S. 132. These principles apply to abortion rights recognized in SCOTUS decisions equally to the equal protection rights at issue in Cooper.

    The language of Ex parte Young which is cited by Texas to preclude suits against state court judges is obiter dictum. "The federal guaranty of due process extends to state action through its judicial as well as through its legislative, executive or administrative branch of government." Shelley v. Kramer, 334 U.S. 1, 15 (1948), quoting Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 281 U.S. 680 (1930). ¨[F]rom the time of the adoption of the Fourteenth Amendment until the present, it has been the consistent ruling of [the Supreme] Court that the action of the States to which the Amendment has reference includes action of state courts and state judicial officials.¨ Shelley, at 18. That case of course arose out of enforcement of covenants between private litigants.

    To the extent that the dictum in Ex parte Young inhibits enforcement of clearly established constitutional rights, it should be abandoned or modified by SCOTUS.

    1. As the oral argument made clear, there is simply no need to enjoin Texas’ judicial branch in order to deal with the case.

      1. It may not be required to dispose of the cases, but the Young dictum is pernicious and should be modified. It wasn't necessary for SCOTUS to belatedly overrule Korematsu, but I'm glad they finally did.

        1. The word "dictum" doesn't mean what your ignorant imagination imagines it to mean.

          1. Dictum? I don't even know him.

  11. I think the Jonathan Mitchell supremicists may be in for a dissappointment.

  12. The blackman kid says that audacity of "judicial supremacy" is celebrated on the left.

    But the right elevated judicial nominations above all else, except perhaps tax cuts, for more than a generation. During much of this time, the left paid nowhere near as much attention to judicial nominations. Time and attention have not been on the side of the left when in comes to the supreme court, and judicial nominations generally.

    So, even if the purpose of conservative control of scotus was ostensibly only to put up their hands at every opportunity and say "we are not supreme, go elsewhere for your redress", that is still a kind of supremacy. The blackman kid just thinks that it is the right kind. At least in the cases when the conservative result would benefit from this sort of approach.

    1. The most recent ACA case that Blackman strongly supported was also the height of judicial supremacy: get the Court to destroy a law that Congress clearly didn’t want to destroy on a ludicrous theory of standing and severability.

      1. True.

        And that case was a good example of the kind of stupid "cleverness" that Josh and others seem to admire and aspire to.

    2. I have no way of telling what you think you are talking about.

  13. We are living in Jonathan Mitchell's world. And the judicial supremacists just can't stand it.

    No, you and Mitchell are living in the judicial supremacists' world. And you can't stand it.

    1. I truly don't understand why Blackman thinks chanting "judicial supremacist" is such a great tactic.

  14. Why did no one argue that SB 8 is a violation of the Texas Constitution's version of the "Take Care" clause by the Executive?

    1. That argument is better made in state courts(*). Perhaps it will be. The federal lawsuits were flying before state court defendants were obliged to file an answer or motion to dismiss.

      * See _Pennhurst v. Haldeman_ ("Pennhurst II"). Federal courts may not order state officials to obey state law.

  15. The Doctor Strangelove of constitutional law?

  16. We must have listened to different oral arguments.

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