Steve Vladeck Profile picture
Jul 16, 2018 11 tweets 4 min read Twitter logo Read on Twitter
Last night's 5th Cir. ruling in Whole Women's Health (…) is another example of the phenomenon I tweeted about last week—conservative judges subordinating settled law to their own policy preferences, however compelling they may be.

A quick #thread on why:
1. The underlying dispute in the case is over a third-party subpoena issued by the plaintiffs (abortion providers) to the Texas Conference of Catholic Bishops (TCCB) as part of their challenge to #SB8. TCCB sought to quash the subpoena, and ultimately lost in the district court.
2. TCCB then sought appellate review of the denial of its motion to quash. Without reaching the merits of its claims that the subpoena violates the First Amendment and the Religious Freedom Restoration Act, Judges Jones and Ho agreed, holding that the subpoena was overbroad...
3. But as #SCOTUS held (unanimously) in 2009, such rulings by district courts can't be immediately appealed under the "collateral order doctrine," because otherwise, discovery disputes could be appealed piecemeal, defeating the text of 28 U.S.C. § 1291:…
4. To be sure, a party like TCCB could defy the subpoena (and appeal a contempt citation), or seek an extraordinary writ of mandamus to protect its privilege.

But the bar for mandamus is _much_ higher—requiring the claimant to show a "clear and indisputable right to relief."
5. Here, however, Judges Jones and Ho held that the denial of the motion to quash _was_ immediately appealable, purporting to distinguish Mohawk (and other circuits' rulings) based on the significance and unsettled law surrounding TCCB's First Amendment claim as a third party.
6. The problem, as Judge Costa's dissent notes, is that the majority didn't actually _resolve_ TCCB's First Amendment claim.

Instead, it used the specter of that concern to conduct ordinary appellate review of the subpoena's compliance with the Federal Rules of Civil Procedure.
7. In the process, the majority thereby subverted settled law on what kinds of discovery orders are immediately appealable, and subjected the district court to review that shouldn't normally be available, at least in this form, at this stage of a civil case.
8. Reasonable folks may disagree about the strength of TCCB's interests here; I don't mean to take a position on that, or, like the majority, on whether the First Amendment actually protects it from having to comply with this kind of third-party subpoena...
9. My point is instead to show how conservative judges routinely do exactly what too many commentators lazily assert only their progressive counterparts do: Allow for their policy preferences to justify incursions into—and departures from—settled statutory and judicial doctrine.
10. Where, as here, such rulings come in the wonky but important context of interlocutory appellate jurisdiction, it means that these judges are _literally_ exceeding their statutory authority in order to do so:…

Talk about "judicial activism"...


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More from @steve_vladeck

Jul 18, 2018
“Birthright citizenship was a mistake whose time has gone.”…

Except that, contrary to what this op-ed argues, #SCOTUS really did settle this issue in 1898:…
Here’s the key passage from United States v. Wong Kim Ark:
One can argue that #SCOTUS got it wrong, but it would take the Court overruling itself or a constitutional amendment to change that rule; doing it by Executive Order would be unconstitutional.
Read 4 tweets
Jul 11, 2018
The claim that conservative judges, unlike progressives, “follow the law” and simply “call balls and strikes” is a preposterous, tired canard.

Among the many counterexamples, this #thread focuses on one (involving Judge Kavanaugh)—tort suits against private military contractors:
1. As the military has come to rely on private military contractors (PMCs) for increasing logistical and other support overseas, the contractors have, not surprisingly, been subject to increasing litigation for alleged (and, in many cases, proven) misconduct by their employees...
2. Some of these claims are from servicemembers—for example, those who claim they were seriously injured as a result of PMCs repeatedly burning hazardous materials in open-air "burn pits" in Iraq and Afghanistan:…
Read 12 tweets
Jun 29, 2018
Until 1866, the size of #SCOTUS was tied directly to the number of circuit courts of appeals—from 6 seats in 1789 to 10 seats in 1863.

Each Justice therefore not only supervised a circuit, but truly _represented_ it, guaranteeing at least one meaningful source of diversity...
When Congress took away seats in 1866 to punish President Johnson, it thereby set the precedent for treating the Court’s size as a political consideration—a big part of why it’s been stuck at 9 since Congress restored two of the three deleted seats in 1869.
Untethering the Court’s size from strict geographic considerations not only politicized it, but it also removed one of the only formal incentives for any kind of diversity—such that any vector of diversity today is solely a result of political calculations and/or pressures.
Read 4 tweets
May 24, 2018
1. Following up on last week's @WSJ op-ed, Prof. Steve Calabresi has now posted to @SSRN a nine-page "Opinion on the Constitutionality of Robert Mueller's Appointment":…

His bottom line: It's unconstitutional.

This #thread explains why he's just wrong:
2. The key to understanding Calabresi's argument is to understand that it is actually two _different_ arguments that need to be addressed separately:

(i) that Mueller's _appointment_ violates the Appointments Clause; and
ii) that Mueller's _actions_ violate the Clause.
3. The first of these arguments is a claim that, based on the terms of the office, the Special Counsel is a "principal" officer under the Appointments Clause, and must therefore be nominated by the President, confirmed by the Senate, and removable at will by the President.
Read 14 tweets
Apr 14, 2018
1. At the risk of trying to bring some nuance to Twitter, what follows is a #thread on U.S. law vis-a-vis the war powers, and why the legality of the #SyriaStrikes as a matter of U.S. law (to say nothing of int'l law) is both far from certain and revealing of far deeper problems:
2. Let's start from first principles. For uses of military force to be lawful as a matter of U.S. domestic law, the authority to use such force must stem either from an Act of Congress or from the President's powers under Article II of the Constitution.
3. As the government has already implicitly conceded, no statute authorized these strikes.

Although both the Obama and Trump administrations have relied upon the 2001 Authorization for the Use of Military Force (#AUMF) to use force _in_ Syria, those strikes were against #ISIS.
Read 14 tweets
Oct 13, 2017
1. Later today, #SCOTUS will consider whether to review another major #GTMO mil. comm'n appeal (Al-Nashiri). Quick thread on why it matters:
2. Al-Nashiri is charged with, among other things, responsibility for 10/2000 bombing of USS Cole. But Cole bombing pre-dated 9/11...
3. Congress only allowed #GTMO mil. comm'ns to try offenses committed during "hostilities," i.e., "any conflict subject to the laws of war."
Read 11 tweets

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