Let’s dial down the burners of outrage and seek understanding of the decision itself. It was unsigned. It did not order Trump to pay anybody anything. Both Chief Justice Roberts and Justice Coney Barrett joined. (Which is
another reason to ignore all the “Coney Barrett hates Trump” memes— remember, Chief Justice Roberts was who originally stayed the TRO that required Trump to pay the $2 billion by midnight. He joined the Majority, and nobody’s analyzing his body language. Let the
libs think Coney Barrett hates Trump.)
The motion had arrived at the Supreme Court in an odd procedural posture. The DC Circuit had
refused to hear the appeal, since it was an appeal from an “unappealable” short-term TRO. So one of the confusing issues was … exactly
which order was on appeal to the Supremes? Judge Ali’s TRO order? Or the DC Circuit’s order refusing to hear the case? If the latter, which makes much more procedural sense, then the Supremes’ only option was to reverse the DC Circuit, uselessly bouncing the case back down so that hostile bench could performatively render an opinion that everybody knows would have upheld the TRO anyway.
I get it; we were all frustrated that the Court didn’t break the chain of command by reaching right over the lower appellate court and slapping Judge Ali’s TRO order right out of his hand, and that’s unfortunate. For its own reasons, the Court decided
not to break several standing protocols. But … did it
really toss President Trump under the bus and burn two billion dollars? Or did it throw
Judge Ali under the bus?
The Court’s weapon is brains, not brawn. And if we stop to read the Court’s order, we find it slyly pulled Ali’s fangs, pushed him onto procedural quicksand, and invited Trump to appeal again as soon as Ali overreaches. Despite corporate media’s fondest wish, this was not a ‘whee! Trump just lost!’ moment.
It was a temporary strategic defeat teeing up a win. I’ll prove it.
The brief order included one long sentence that threw Trump several lifelines. Since, given all the conservative black-pilled hysteria over the decision, my analysis will be considered controversial, let’s carefully examine the order’s text:
Every single word has meaning. “The deadline in the challenged order has now passed” reinforced that Trump is no longer under any deadline at all. It’s gone. Judge Ali must now issue a new order setting a new deadline, all in the context of the looming March 10th date when his TRO expires four days from now. Ali’s new deadline-resetting order could be appealed again.
More significantly, Judge Ali must soon hold a full preliminary injunction hearing, providing even more opportunities for Trump to appeal— this time on the merits, such as on his argument for sovereign immunity (strongly endorsed in the Dissent), rather than appealing on much weaker procedural grounds.
Second, the Majority said “the District Court should clarify what obligations the Government must fulfill.” In other words, the Court, in effect, partially granted Trump’s appeal. The phrase suggested that Judge Ali’s original order requiring the government to pay all the contracts by midnight was simply too broad and lacked a good reason.
This places Judge Ali in a diabolical judicial minefield— his next order clarifying the original order has to provide more words, increasing the chances the inexperienced jurist will stumble on a buried appellate landmine.
The third requirement, that Ali’s next order must include “due regard for the feasibility of any compliance deadlines,” means that the Court told Judge Ali, “no more same-day deadlines.” It’s bigger than it look. Ali now must hold a hearing to allow argument over the government’s needs for time, to ensure that payments are feasible. This is all while the clock is ticking on holding the emergency preliminary injunction hearing.
If Judge Ali must have a hearing anyway, why not just go ahead and hold the preliminary injunction hearing, rather than a separate hearing to find out what should be in the next intermediate TRO order?
The bottom line is, it’s probably impossible for Judge Ali to satisfy those three reasonable-sounding conditions in the time remaining before the substantive hearing on the preliminary injunction.
Am I just seeing a glass half-full? Let’s discuss that next.
SCOTUS outmaneuvers Judge Ali; Dem senatorial embarassment; progressives meltdown over Trump; Dem chaos nears collapse; ActBlue under fire; EU scrambles; Trump’s strategy unfolds; viral ex-Dem video.
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