“All Things Considered” Fails to Consider Texas v. United States

October 30th, 2015

Yesterday, NPR’s All Things Considered aired a segment on the timing of Texas v. United States, including a quote from me.

GONZALES: Even if the Supreme Court gets the case soon, a decision wouldn’t come until June 2016 at the earliest, says Josh Blackman, who teaches constitutional law at the South Texas College of Law. He also filed a brief opposing the president’s executive actions.

JOSH BLACKMAN: I can’t see the judges being in a hurry to get into this mess three months before the general election.

This quote is quite out of context, and seems that I am saying something I didn’t say. I was attempting to explain what would happen if the Fifth Circuit issued its ruling in January or February. Could the Supreme Court expedite the case, and rush briefing, with a May oral argument, so a decision could be made by June 2016? I explained that expedited briefing would be inappropriate because the government didn’t even bother seeking a stay. More importantly, rushing a case to get it done right before the election–when the election very well may decide whether the case is mooted–is inconsistent with the Roberts’ Courts recent practice. A President Rubio will ask the petition to be dismissed, and the case goes away. No need to rush through a major separation of powers decision. I discuss the timing at length here. So no, I am not saying the Justices will delay consideration of the case simply because an election is coming up. My point was that the Justices needn’t rush the case beyond its normal procedures, just to give President Obama a ruling while he is still in office.

Also, the piece made a few others mistakes.The piece said that the 5th Circuit “usually takes 60 days to issue its rulings.” Not even close. As I told the reporter, on average, the court takes about 8 months to resolve cases. In particular here, where the government did not seek a stay from the Supreme Court, there was a signal that this case wasn’t a priority.

This topic is quite frustrating. I’ve done interviews with CNN the New York Times , the Houston Chronicle, now NPR, and others. Each used very similar quotes–that the Supreme Court won’t have time to consider it unless the Fifth Circuit rules quickly–without the appropriate context that the failure to seek a stay means the case needn’t be rushed. Usually the media tries to get things right, but this aspect of the story–some blame on the Obama Administration for not going to the Supreme Court for a stay–has been entirely absent in the coverage.

Update: I previously faulted NPR for saying the 5th Circuit decides cases in about 2 months. This is about the median time it takes for them to resolve cases, but I think that number is quite skewed by straightforward three-to-zero cases. In any event, this case will no doubt have a dissent, and is not on the lower end of the spectrum.