Trump ban and the USSC and lower courts

[Richard_Parker]

@Fotheringay-Phipps

Hard to know, because - per your cite above - the use of nationwide injunctions is a fairly recent development. So it’s hard to how widespread it is, or will be.

That’s true, but we know enough to know that they aren’t issued in every case of national importance, which was your claim. Even allowing that that was hyperbole, what we see so far is that they are issued somewhat seldom even though nothing has been prohibiting them for decades.

@Fotheringay-Phipps

I don’t think so. There are a lot fewer appeals courts than circuit courts, so the opportunity for conflicting rulings is much smaller.

A difference of degree, to be sure. But there are a great many circuit court splits, and in your system they would have no authority if there is conflict.

[Fotheringay-Phipps]

@Richard_Parker

That’s true, but we know enough to know that they aren’t issued in every case of national importance, which was your claim. Even allowing that that was hyperbole, what we see so far is that they are issued somewhat seldom even though nothing has been prohibiting them for decades.

I don’t recall making that claim. I may have said that it could happen in every case of national importance.

A difference of degree, to be sure. But there are a great many circuit court splits, and in your system they would have no authority if there is conflict.

But a difference of degree is important. Your position was “since there will never be consensus among three hundred judges about a big political issue, you’re denying courts the power to enter a timely injunction on any national-level issues”, and this is not true to nearly the same extent if it’s a matter of appeals court splits.

Essentially we’re balancing different competing concerns, yours being the diminishing of judicial oversight. To the extent that this diminishing is itself diminished, it doesn’t count as much against other concerns.