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Today, the Justice Department petitioned the Court “for re-hearing of this case before a full nine-Member Court.” Success is unlikely here. If five Justices wanted to hold the case until there was a ninth Justice, rather than deciding the case by a 4-4 margin, they could have simply held it over, like they did with Citizens United. That didn’t happen, which tells me that they could not broker a compromise internally. Instead, they made the somewhat striking decision to affirm by an equally divided margin. Nudging from OSG is unlikely to change the equation.

The immediate effect of this petition is that it puts on hold the return of the mandate to the 5th Circuit. The Court does not need to wait until the long conference to deny a petition for rehearing. To give you a sense for timing, last year a petition for rehearing was filed in Davis v. Ayala on 7/13/15. It was distribued three days later on 7/16/15. The petition was then denied less than one month later on 8/10/15. The mandate issued the next day. If the Court follows a similar sequencing, the petition would be ruled by the third summer order list.

Judge Hanen currently has a hearing scheduled for 8/22/16. It’s possible DOJ will petition Judge Hanen will put the proceeding on hold. If the Court denies the rehearing right away on the third summer orders list, then this delay will not be meaningful. But if the petition is rescheduled many times, that delay may become indefinite. The DOJ’s hope is that the case will simply be held in SCOTUS limbo, with a series of reschedulings, until a ninth Justices is confirmed. This could take a while.

In their best case scenario, Judge Garland is confirmed during the lame-duck session. In that case, the petition will have to be rescheduled dozens of times.

If Garland is not nominated in the lameduck session, the outcome of this case hinges on the outcome of the election. If it is a President Trump, the case goes away, as DAPA will be rescinded. (We noted in our Cato brief that not deciding the case now would allow the case to go away through the political process). If it is Clinton, her nominee would receive a vote–at the earliest–in March of April. Only then could the case be reheard, with a possible special May sitting. Meanwhile, the petition for rehearing would set (what must be) a record for ten months or rescheduling!!

All of this seems very, very unlikely. The more likely route is to expedite the case through the lower court. Based on the 5th Circuit’s precedent, the outcome is certain. The case will likely come back up to the Supreme Court on certiorari around the same time the next Justice is confirmed.

It doesn’t make sense to grant this petition in light of the above timeline. But then again, absolutely nothing about this case has made any sense.

Terminiello v. Chicago (Jackson, J., dissenting):

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

Donald J. Trump on his immigration ban from predominantly-Muslim nations:

“So you call it territories. OK? We’re going to do territories. We’re going to not let people come in from Syria that nobody knows who they are,” Trump said. “The Constitution — there’s nothing like it. But it doesn’t necessarily give us the right to commit suicide, as a country, OK? And I’ll tell you this: Call it whatever you want, change territories, but there are territories and terror states and terror nations that we’re not going to allow the people to come into our country. And we’re going to have a thing called ‘extreme vetting.’ And if people want to come in, there’s going to be extreme vetting.”

I genuinely wonder if someone gave him Jackson’s quote, and he was trying to reference it. Or maybe I’m giving him too much credit.

 

The human mind has a tendency to understand things in a way that conforms to what we already believe in order to avoid cognitive dissonance. This phenomenon is referred to as motivated reasoning. (For a fascinating discussion, read Daniel Kahneman’s Thinking Fast & Slow). The reaction to the Inglorious RBG’s comments over the past week illustrates how motivated reasoning operates.

Ginsburg’s statements given to AP on Thursday, NYT on Friday, and CNN on Monday were absolutely inappropriate, by any standard. (It is remarkable that she didn’t have enough sense to stop talking to the media on Monday, after the outrage over the weekend!).

Yet many–who were inclined to agree with RBG’s comments–felt compelled to provide reasons to defend her. The arguments fell along a scale of sophistication. Some said that its better to know what judges think, so the comments were actually welcome.  Some said she has no fucks to give, and that’s awesome because Notorious. Others said that the rules of judicial ethics (even if they applied to SCOTUS) are constrained by the First Amendment. Others took a historical approach, and explained there is a long history of the Justices openly being involved with politics (note all the examples predate Abe Fortas–with good reason). Others tried to explain this was no different than Justice O’Connor telling friends at a private party who she supported for President, or Justice Scalia going on a hunting trip with VP Cheney (if you haven’t already, read Nino’s 20-page memorandum on recusal standards). Others explained that this was a momentous time like 1936, and it warranted a change in judicial norms. Others said Ginsburg was willing to risk the reputation of the Court to stop the calamity of Donald Trump. Others, invoking Godwin’s law, asked what did judges in Weimar Germany do to halt the rise of Hitler? I’m sure I’m missing some, because I frankly stopped reading all of these rationalizations after the first two days.

Were any of these Ginsburg’s motivations? Did she have the loftiest aspirations of preserving the Republic? Of course not. She screwed up. She wasn’t try to stop the next Hitler. She wasn’t carefully risking the legitimacy of the Court to save the Republic. She was repeating DNC talking points about Trump’s tax returns. And she admitted it.

On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.

As I told the WSJ Law Blog, expressing regret (there was no apology) conceded that her statements were inappropriate.

In a follow-up interview with Nina Totenberg, Ginsburg repeated that she erred:

RUTH BADER GINSBURG: Because it was incautious. I said something I should not have said, and I made a statement that reads, on reflection, my recent remarks and response to press inquiries were ill-advised. I regret making them. Judges should avoid commenting on a candidate for public office. In the future, I will be more circumspect.

TOTENBERG: I ask Ginsburg if she had just goofed.

GINSBURG: I would say yes to your question, and that’s why I gave the statement. I did something I should not have done. It’s over and done with, and I don’t want to discuss it anymore.

She goofed.

Over the past few years, Ginsburg has been showered in such sycophantic adoration, she hubristically thought she could do no wrong. As I wrote following Hobby Lobby, “After a certain point, it becomes difficult to separate Justice Ruth Bader Ginsburg and the Notorious RBG. As a cause célèbre, she is now beyond the reach of normal commentary on the Court.” But with her most recent remarks, she crossed the line–and she admitted it.

This entire exercise teaches an important lesson about motivated reasoning. Sometimes, the real explanation is the most obvious one.

For easy reference, please see a post I wrote last year, “The Seven Stages of Criticizing Justice Ginsburg’s Extrajudicial Statements.” I think I captured all the various criticisms I get when discussing the extrajudicial statements of RBG.

RBG continues to humiliate herself, and inject the Court into partisan politics. This time, Joan Biskupic got the scoop:

“He is a faker,” she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. “He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”

“At first I thought it was funny,” she said of Trump’s early candidacy. “To think that there’s a possibility that he could be president… ” Her voice trailed off gloomily.
“I think he has gotten so much free publicity,” she added, drawing a contrast between what she believes is tougher media treatment of Democratic candidate Hillary Clinton and returning to an overriding complaint: “Every other presidential candidate has turned over tax returns.”

And lest there be any doubt, she said Clinton will be the next President:

It was evident in our interview on Monday that when Ginsburg imagines who would succeed President Obama, she does not expect Trump to prevail over Clinton.
Acknowledging her own age and that Justices Anthony Kennedy and Stephen Breyer will turn 80 and 78, respectively, Ginsburg said of the possible next president: “She is bound to have a few appointments (to the Supreme Court) in her term.”

Would anyone think RBG could give Donald Trump a fair shake in Court? For all of Trump’s charges that Judge Curiel is rigged, RBG has played right into his hand. She would be rigged against him.

At this point, Ginsburg is literally parroting Democratic talking points. In her last interview in the New York Times, she said “That’s their job,” with respect to considering Garland. This is literally the DNC hashtag. #DoYourJob. Now she is scolding him for not releasing his tax returns. Hey RBG, the Justices don’t release their tax returns either. Maybe start a bit closer to home if you want to focus on transparency, huh?

I repeat my call that the Court should hold a William-O-Douglas-style intervention for RBG. Be quiet or step down. Or maybe the Chief can assign her only ERISA opinions until she behaves. We know how much she loves those.

Vice News filed a FOIA lawsuit against the Office of the Solicitor General, seeking any correspondences with the Justices. They found two.

The first was a 2013 email from SG Verrilli to Justice Sotomayor about a (redacted) law clerk applicant.

What’s curious about this is that Verrilli thanked the Justice for “reaching out to us.” It’s unclear if this was done by email. At first glance, the fact that the subject is “RE: Law Clerk applicants,” suggests Verrilli would be replying to an email from Sotomayor. But OSG only found these two correspondences. Unclear the sequencing here. But in any event, having a recommendation from the SG is pretty cool.

I attempted to work backwards to see if I could figure out if Sotomayor hired whomever Verrilli recommended. We have a few clues:

• Male (pronoun “he”)
• If he was being interviewed in the fall of 2013, that would mean he would have been hired during for OT 2014. According to David Lat’s November 2013 Hiring Watch post, Sotomayor only had one spot filled for OT 2014.
• For Verrilli to go to bat for him, the applicant must have some connection to OSG, or perhaps the White House, or maybe from Jenner & Block.

Sotomayor’s three male clerks from OT 2014 were

1. Luke McCloud (Harvard 2011 / Niemeyer / Kavanaugh) –> No obvious connection to Verrilli.

2.  James Sigel (Harvard 2011 / Reinhardt / Liu (Cal.) / Tatel) –> No obvious connection to Verrilli.

3. Michael Pollack (NYU 2011 / J.R. Brown) –> Summer Intern at DOJ Appellate (2010), Summer Associate at Jenner & Block (2010), Summer Intern at OSG (2011), Trial Attorney at DOJ Federal Programs (2012-2014).

If Sotomayor did hire whomever Verilli recommended, I think the odds are pretty solid that it was Pollack. Indeed, it is difficult to imagine Sotomayor hiring someone who worked at both OSG and Jenner without seeking a recommendation from Verrilli.

Not my best legal SCOTUS Holmes exercise, but it’s up there.

Pollack is currently a Bigelow Fellow at Chicago.

 

The other email–far less interesting–is from Acting SG Katyal to Justice Kagan about where to hang her portrait in the OSG office.

Nothing earth-shattering here, but the first proof the Justices do send and receive emails with the outside world. It’s unclear if Justices Kagan and Sotomayor will now set up their own homebrew email server to evade FOIA.