Ethics Quote Of The Month: Supreme Court Justice Neil Gorsuch

“The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of ‘nationwide,’ ‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case….

“Equitable remedies, like remedies in general, are meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit. When a district court orders the government not to enforce a rule against the plaintiffs in the case before it, the court redresses the injury that gives rise to its jurisdiction in the first place. But when a court goes further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies. Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III”…

It has become increasingly apparent that this Court must, at some point, confront these important objections to this increasingly widespread practice. As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions…

“If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94- to-0 win in the district courts into a 12-to-0 victory in the courts of appeal. A single loss and the policy goes on ice— possibly for good, or just as possibly for some indeterminate period of time until another court jumps in to grant a stay. And all that can repeat, ad infinitum, until either one side gives up or this Court grants certiorari.”

——Justice Neil Gorsuch, concurring in the grant of the stay of a nationwide injunction imposed by a district judge in New York against the implementation  of the Trump administration’s new immigration standards.

The new rules impose additional criteria for determining which potential immigrants  are likely to be dependent on the U.S. government for benefits  and therefore ineligible for green cards and eventual U.S. citizenship. These were proposed in October, 2019, but have been blocked by Democratic judges until today’s decision.

The new policy provides positive and negative factors for immigration officials to consider as they rule on green-card applications. The negative factors include whether a person is unemployed, has dropped out of high school or isn’t conversant  in English. (GOOD.) U.S. District Judge George B. Daniels sided with challengers who argued the changes would reverse 130 years of how the “public charge” definition has been interpreted.  Daniels wrote that such a change would be “repugnant to the American Dream of the opportunity for prosperity and success through hard work and upward mobility.”

(Psst! Judge! “The American Dream” isn’t a law.)

One can agree or disagree with the new policy, but Gorsuch’s admonition cannot not be fairly questioned. One of the offensive and undemocratic devices employed by “the resistance” to prevent the Trump administration from governing has been the process Gorsuch deplores, where judges in specific jurisdictions interfere with national policies. This was extremely rare before 2016; now, it is almost automatic. Naturally, and depressingly, the liberal block of the Supreme Court voted to endorse the practice and  permit the injunction to continue. None of the four Justices even bothered to issue a justification for their vote. They just went along with the ” team.”

That appears to be a political, rather than a judicial position. Gorsuch’s argument seems manifestly reasonable and indeed urgent.

The “resistance” wants a dysfunctional government as long as Donald Trump is President. The courts should not abet that unethical strategy, or be a part of it.

The entire opinion is here.


Source: Washington Post

17 thoughts on “Ethics Quote Of The Month: Supreme Court Justice Neil Gorsuch

  1. One of things I can’t reconcile is whether these lower court judges have rapidly evolved into these emotionally driven jurists, if they were always this way in hiding until it felt safe to go bonkers, or if they were known to be what they are before appointment and went without vetting.

    The burden this places on the country, the upper courts, and especially SCOTUS is really unconscionable.

  2. SCOTUS should issue an opinion invalidating national injunctions in all cases, except perhaps by the D.C. circuit, since it effectively operates as a “national” circuit. Even then, “national” injunctions should never be operative on circuits where the question has already resolved in favor of the government by the circuit in question.

    This is not a complex problem. It is clearly an abuse of discretion for a judge or circuit to issue a ruling binding on other circuits where the controversy has either not been adjudicated, or has declared the government’s case successful. It’s not even a close or particularly controversial argument.

    How we have come to this pass is confusing, and why the Court has not stepped in to stop it even more so.

  3. Proofreading issue? “One can agree or disagree with the new policy, but Gorsuch’s admonition cannot not be fairly questioned.” One too many negatives?

  4. Can’t the District and Circuit court judges associations do anything about this arrogance in their ranks, or are all federal judges little despots unto themselves? (I fear the latter.)


    A Texas judge issued an injunction Saturday against a federal mandate aimed to protect transgender people, finding that the federal health rule violates existing law.

    The preliminary injunction, granted by U.S. District Judge Reed O’Connor, is in response to a lawsuit filed by Texas, on behalf of religious hospital network Franciscan Alliance, and four other states in August.

    This is Texas’ second recent high-profile win from O’Connor in recent months. The Fort Worth-based judge also sided with Texas in a separate case in August in which he blocked the Obama administration’s guidelines saying schools must treat a student’s gender identity as the student’s sex to comply with with federal nondiscrimination statutes.

    In 2015, it was an Obama administration effort to extend family leave benefits to gay couples. In 2016, it was an Obama administration guideline allowing transgender children to use school bathrooms that align with their gender identity. And on Friday, it was the entirety of Obamacare that U.S. District Judge Reed O’Connor struck down as unconstitutional after a Texas-led coalition of 20 states sued this year to kill it.

    Over the past four years, O’Connor has handed Texas major wins in several high-profile Texas v. United States lawsuits. And it doesn’t seem to be a coincidence that those cases landed in his court. The North Texas judge has emerged as something of a favorite for the Texas Attorney General’s Office, a notoriously litigious legal battalion known for challenging the federal government in cases and controversies across the country.

    Since 2015, almost half of challenges to the federal government that Texas filed in district courts here landed in O’Connor’s courtroom, attorney general’s office records show. He is one of several dozen federal judges of his rank in the state.

    Active in the conservative Federalist Society, O’Connor is a former aide to U.S. Sen. John Cornyn, R-Texas, and a former federal prosecutor in North Texas who has been rumored to be on the short list for a promotion to a federal appeals court. O’Connor, a 2007 appointee of President George W. Bush, worked in relative obscurity until 2015, when Texas’ litigation force began to frequent his courtroom. Since then, he’s earned a reputation as a no-nonsense conservative darling.

    You can’t always choose your judge, but you can often choose your courthouse. That’s especially true for a coalition of 20 states challenging a law that touches practically every person in the country — dozens of courtrooms in many of those states would have been plausible places to file the lawsuit, giving the Texas coalition many feasible options. O’Connor happens to have served in small judicial districts where a savvy plaintiff has a good chance of landing in his court.

    For some years, O’Connor was the only district judge hearing cases in the state’s tiny Wichita Falls division. Texas filed five challenges to the federal government there in 2015 and 2016; O’Connor heard all five. Then the Northern District of Texas’ chief judge, Barbara Lynn, announced that starting in December 2016 she would hear 15 percent of cases filed at the courthouse near the Oklahoma border. After that, the Texas Attorney General’s Office filed two federal challenges in Fort Worth, where O’Connor is one of three judges who hears cases and is currently the only active judge — meaning cases filed there are likely to fall to him as well. Both cases were heard in his courtroom.

    • “The Right is doing what the Left has done for decades! Choosing venues that favor their political ideology! It is unfair that they use our tactics against us!”

      My stars and garters! Show of hands: who did not see this coming? Where were you when a judge in Hawaii did the same to Trump immigration policies the past three years?

      Doesn’t make it right, but it does level the playing field somewhat.

      Guess what? Conservative judges are far more likely to uphold the law than progressive ones. So cry me a river when progressive tactics backfire. Remember the ‘nuclear option?’

      Human nature does not change, and Trump judges are being appointed at an astounding rate. You better hope they adhere to the rule of law, or a great many Obama era orders will be reversed for political reasons.

      Love ya like a sister, Zoe. Enjoy your well written commentary.: it makes me think.

      I just wanted to welcome you to OUR world, where judges invalidate our victories while cementing yours.

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