Do you understand what a temporary injunction is? It is a court order granting relief from imminent irreparable harm to a plaintiff, while a case is winding its way toward trial, when monetary compensation is not possible or is inadequate, and when the plaintiff’s case is likely to succeed on its merits. It is not something granted easily or automatically. There is a hearing where plaintiff and defendant appear before a judge, bringing evidence and arguments, and the judge weighs whether the balance of evidence shows the conditions are met to grant injunctive relief, pending trial.
If, for example, a hospital proposes to terminate life support for your comatose spouse, and if you can show medical grounds to hope for eventual recovery with continued care, you might bring suit, starting with a request for a temporary injunction. After all, a later judgment for money will not bring your spouse back, should life support be terminated while your case grinds through the system. And, if the hospital can show no more harm to itself (or to others) than limited although inconvenient financial costs, a judge will likely grant the injunction.
Since January, various district and appeals courts have granted and affirmed temporary injunctions in suits brought against various agencies of the Federal Government, with respect to a range of issues, from mass firings at Cabinet departments created by act of Congress, to access by unvetted and untrained DOGE staffers to databases containing personally identifiable information of millions of people, including medical histories. In each case where relief was granted, the probability of imminent and irreparable harm was clear, as was the infeasibility of monetary compensation should the plaintiffs, as seemed likely, prevail.
Beginning in May, the Supreme Court began reversing these injunctions, without explanation, and without resolving any underlying issues.
This has provoked plenty of public commentary, mainly on the appearance of the conservative majority consistently siding with the current administration. But much less noise has been raised over a much more ominous aspect.
The Court has been allowing this administration to proceed with actions which lower courts have deemed likely to have largely irreversible effects, without resolving the question of whether the President is acting within his Constitutional powers. The President is being empowered to do what a year ago would have been incomprehensible, without setting any legal precedent.
What is presented as a legal technicality, the staying of an injunction while the corresponding litigation grinds on, will actually become a fait accompli. What’s done is done. A department gutted of experience and knowledge is not easily rebuilt. Personal information, once it escapes into unauthorized hands, can not with any assurance be everywhere erased or forgotten. A dead spouse can not be resurrected.
We all understand how time-consuming litigation can be, and the precise point of an injunction is to maintain the status quo and prevent irreparable harm, if a return to the status quo is likely to be the final outcome. And we all understand that the eventual fate of these lawsuits, when no real remedy can be had due to unrestrained actions by the defendant, is likely to be at best a limited settlement, and more likely a general dismissal, without resolving any matters of law.
Apparently this is the point. In waving the administration on, the conservative justices have remained silent on the issues. Does the president have this or that authority, or does he not? No answer. Further, the justices have been adamant that they will not issue opinions when lifting these injunctions, because they do not want to establish precedent. They consciously and deliberately allow the effect without the law.
This is the crux.
The justices are setting themselves up as arbiters of presidential power, not just on a case-by-case basis, but on a president-by-president basis; not according to law, which they have explicitly evaded, but according to private beliefs which can only be guessed at.
If the next president, for example, tries to take an ax to another Cabinet department, he may not have a Court decision establishing his authority to do so, and he may easily be stopped by a lower court’s injunction and the Supreme Court rejecting his appeal. Or, just as easily, empowering him to go forward. For reasons left unstated.
More than one commentator has described what is happening as abuse of the Court’s “emergency docket”, which is an understatement. But the larger problem is the intent revealed by the six justices with respect to the rule of law, which is apparently to replace it with their personal preferences. Legal precedent binds everyone, the Court included. Permission without precedent binds everyone, except the Court.
Judicial review, or the power to declare a law or action invalid because it infringes upon the Constitution, was never written into the Constitution itself. The Framers could not agree to it – although they did agree and detail other powers of the Court. This power was seized upon by John Marshall in a very early Court opinion. Later Courts accepted it and have continued to expand its scope. But it was always anchored in some rationale, some legal interpretation that could be applied going forward as a matter of law.
Until now. By determining outcomes without setting precedent, the six conservatives are now acting, not as interpreters of the Constitution, but as replacements. If they continue, they are on course to establishing themselves as six closeted Tsars, six Supreme Leaders-for-life, whose secretive readings of Constitutional tea-leaves, or their own private agenda, gradually but ultimately come to shape the future of the United States.
The time immediately after the Civil War, during the debates and ratification of the Reconstruction Amendments, is sometimes called the Second Founding. Today, unless something changes radically, we may find ourselves living through the Third. If so, whatever is being founded, it is unlikely to end up looking much like a new constitutional republic.
(Image by Ana Jimenez from Pixabay)
The Supreme Court Comes Out of the Closet
Do you understand what a temporary injunction is? It is a court order granting relief from imminent irreparable harm to a plaintiff, while a case is winding its way toward trial, when monetary compensation is not possible or is inadequate, and when the plaintiff’s case is likely to succeed on its merits. It is not something granted easily or automatically. There is a hearing where plaintiff and defendant appear before a judge, bringing evidence and arguments, and the judge weighs whether the balance of evidence shows the conditions are met to grant injunctive relief, pending trial.
If, for example, a hospital proposes to terminate life support for your comatose spouse, and if you can show medical grounds to hope for eventual recovery with continued care, you might bring suit, starting with a request for a temporary injunction. After all, a later judgment for money will not bring your spouse back, should life support be terminated while your case grinds through the system. And, if the hospital can show no more harm to itself (or to others) than limited although inconvenient financial costs, a judge will likely grant the injunction.
Since January, various district and appeals courts have granted and affirmed temporary injunctions in suits brought against various agencies of the Federal Government, with respect to a range of issues, from mass firings at Cabinet departments created by act of Congress, to access by unvetted and untrained DOGE staffers to databases containing personally identifiable information of millions of people, including medical histories. In each case where relief was granted, the probability of imminent and irreparable harm was clear, as was the infeasibility of monetary compensation should the plaintiffs, as seemed likely, prevail.
Beginning in May, the Supreme Court began reversing these injunctions, without explanation, and without resolving any underlying issues.
This has provoked plenty of public commentary, mainly on the appearance of the conservative majority consistently siding with the current administration. But much less noise has been raised over a much more ominous aspect.
The Court has been allowing this administration to proceed with actions which lower courts have deemed likely to have largely irreversible effects, without resolving the question of whether the President is acting within his Constitutional powers. The President is being empowered to do what a year ago would have been incomprehensible, without setting any legal precedent.
What is presented as a legal technicality, the staying of an injunction while the corresponding litigation grinds on, will actually become a fait accompli. What’s done is done. A department gutted of experience and knowledge is not easily rebuilt. Personal information, once it escapes into unauthorized hands, can not with any assurance be everywhere erased or forgotten. A dead spouse can not be resurrected.
We all understand how time-consuming litigation can be, and the precise point of an injunction is to maintain the status quo and prevent irreparable harm, if a return to the status quo is likely to be the final outcome. And we all understand that the eventual fate of these lawsuits, when no real remedy can be had due to unrestrained actions by the defendant, is likely to be at best a limited settlement, and more likely a general dismissal, without resolving any matters of law.
Apparently this is the point. In waving the administration on, the conservative justices have remained silent on the issues. Does the president have this or that authority, or does he not? No answer. Further, the justices have been adamant that they will not issue opinions when lifting these injunctions, because they do not want to establish precedent. They consciously and deliberately allow the effect without the law.
This is the crux.
The justices are setting themselves up as arbiters of presidential power, not just on a case-by-case basis, but on a president-by-president basis; not according to law, which they have explicitly evaded, but according to private beliefs which can only be guessed at.
If the next president, for example, tries to take an ax to another Cabinet department, he may not have a Court decision establishing his authority to do so, and he may easily be stopped by a lower court’s injunction and the Supreme Court rejecting his appeal. Or, just as easily, empowering him to go forward. For reasons left unstated.
More than one commentator has described what is happening as abuse of the Court’s “emergency docket”, which is an understatement. But the larger problem is the intent revealed by the six justices with respect to the rule of law, which is apparently to replace it with their personal preferences. Legal precedent binds everyone, the Court included. Permission without precedent binds everyone, except the Court.
Judicial review, or the power to declare a law or action invalid because it infringes upon the Constitution, was never written into the Constitution itself. The Framers could not agree to it – although they did agree and detail other powers of the Court. This power was seized upon by John Marshall in a very early Court opinion. Later Courts accepted it and have continued to expand its scope. But it was always anchored in some rationale, some legal interpretation that could be applied going forward as a matter of law.
Until now. By determining outcomes without setting precedent, the six conservatives are now acting, not as interpreters of the Constitution, but as replacements. If they continue, they are on course to establishing themselves as six closeted Tsars, six Supreme Leaders-for-life, whose secretive readings of Constitutional tea-leaves, or their own private agenda, gradually but ultimately come to shape the future of the United States.
The time immediately after the Civil War, during the debates and ratification of the Reconstruction Amendments, is sometimes called the Second Founding. Today, unless something changes radically, we may find ourselves living through the Third. If so, whatever is being founded, it is unlikely to end up looking much like a new constitutional republic.
(Image by Ana Jimenez from Pixabay)
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D M Smith