"The same result that we reached in May is appropriate here."

Once again, a district judge is reversed by the Supreme Court twice in the same case.

I noted in my recent Civitas column that it is rare for a single judge to be reversed by the Supreme Court twice in the same case. Yet, it has happened again. The latest installment is Noem v. TPA Alliance, Part II. The Court states the issue plainly:

In March of this year, the United States District Courtfor the Northern District of California entered a preliminary order postponing the effective date of the Secretary of Homeland Security's decision to remove "temporary protected status" (TPS) from Venezuelan nationals living in the United States. See 8 U. S. C. §1254a; 5 U. S. C. §705. In May, this Court stayed that order while the Governmentappealed. The United States Court of Appeals for the Ninth Circuit ultimately affirmed the District Court's preliminary order. Last month, the District Court entered final judgment in respondents' favor, holding unlawful and settingaside the Secretary's actions effectuating her decision—namely, her vacatur of a pending extension of TPS for Venezuelan nationals, and her termination of that status itself. See 5 U. S. C. §706(2). (The District Court also concluded that the Secretary unlawfully vacated a TPS extension for Haitian nationals. The Government now seeks to stay theportions of the District Court's judgment pertaining to Venezuela, but not Haiti. See Application 7, n. 6.) The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted. Although the posture of the case has changed, the parties' legal arguments and relative harms generally have not. The same result that we reached in May is appropriate here.

Justice Jackson, in dissent, laments how the Court did not use its "opinion-writing capacity." Given that this case took less than ten days to resolve, from start to finish, I don't think the Court found the matter particularly difficult. Justices Kagan and Sotomayor did not join Jackson's dissent.

At some point, lower courts will get the memo of how the emergency docket works.

Comments

[Martinned2]

At some point, lower courts will get the memo of how the emergency docket works.

Trump always wins. It's not that hard.

[Stupid Government Tricks]

Apparently it is. Trump doesn't always win, and he appeals so few of them, it's a good bet he doesn't think he would have won them either.

[y81]

Six Republicans and three Democrats sit in their offices. They don't talk to each other. Periodically a decision issues without explanation or analysis, and the lower courts are supposed intuit how to treat it as precedent. Did I get the basic outline?

John Ely criticized Roe v. Wade for its lack of legal reasoning, as opposed to arbitrary rule-making. He is fortunate to have died before it came to this.

[wvattorney13]

One solution to the enigma is to apply the higher court decision in the very case you are deciding. Or if there are nearly identical fact patterns, apply the emergency docket ruling.

Your comparison to Roe is inapt. Emergency docket decisions have not been fully briefed or argued. It would not be appropriate to have robust reasoning. But you are supposed to respect the ruling of a higher court.

[JoeFromtheBronx]

John Hart Ely also supported Planned Parenthood v. Casey, sending the authors of the plurality a thank you note.

[Doug Heffernan]

The question that lower courts need to answer in cases like this is not in any way related to the facts of the case or the law, but rather what is the likelihood that the scotus conservative republican majority would side would Trump, or, what are the chances of getting a scolding from Gorsuch. If the lower court's best guess to either of those questions is more likely than not, they need to decide in favor of Trump. If they want to play it safe, they should just decide in favor of Trump in all cases.

[Social Justice is neither]

Good to see you admitting the Leftist lower court judge's considerations are wholly divorced from law, they just err in the consequences calculation

[y81]

In the absence of legal analysis, sociological prediction is the only route left. So we can improve the courts' intuitive capacity by refining my analysis: we have two maganauts, four country club Republicans (although more Catholic than any club I would join), and three liberal Democrats. Assuming you know people in all three categories, which I can do by consulting my midwestern relatives, my beach club friends (I don't belong to a country club as such, but close enough), and my biglaw colleagues respectively, just figure out what they would say about a question if they didn't think about it or analyze it much or discuss it with anyone, and there's your answer.

[JoeFromtheBronx]

"four country club Republicans"

I'm not sure if Barrett is a "country club" Republican.

Gorsuch and Kavanaugh might be, but that wouldn't be the first term that comes to mind. Kavanaugh is more someone who would hang out with the guys and watch football.

Roberts fits the best there though again I'm not sure that would be the term I would use.

[ikaritenshi]

both the district court and the appellate court not only twisted itself in knots in order to ignore the prior SCOTUD ruling but lectured SCOTUS on the inadequacies of prior emergency docket opinion. I'm only surprised there was not another Gorsch beatdown concurrence.

[Roger S]

When it is all over, everyone will say that Pres. Trump helped bring rule of law to judges and others acting unconstitutionally.

[DDHarriman]

That's exactly what SCOTUS is doing.

[Sarcastr0]

the parties' legal arguments and relative harms generally have not

It's the motions docket. The Court didn't examine the parties' legal arguments last time.

Who is the Court trying to fool here?

[wvattorney13]

"The Court didn't examine the parties' legal arguments last time."

Sure it did. Likelihood of success on the merits is one of the factors in both of these cases. The Court denied a PI in this case the last time. This time it is determining whether to enter a stay pending appeal. Same merits, same harms, same result. So we keep the government's decision in effect pending appeal in the "interim before the interim."

Maybe after full briefing and argument the opinions change. But for the quick off the cuff assessment until then, the Court sides with the government again for the same reasons.

[Sarcastr0]

The motions docket is explicitly not an analysis of the merits.

If the Court wants to change that, it's gotta say so.

Though if it says so, it's legitimacy will suffer.