One of the quietest ways to disable the Constitution is to leave its words untouched while preventing anyone from enforcing them at the time enforcement matters.
Imagine that, before the final at-bat of a tied baseball game, the opposing team warns the umpire that the batter appears to be using an illegally altered bat. The umpire refuses to examine it, saying that the batter has not yet used it and therefore no violation has occurred. The batter then hits the game-winning home run. When the bat is examined afterward and found to be illegal, the umpire rejects the protest because the game is over and the objection comes too late.
The rule against illegally altered bats was never repealed, and the umpire never declared the bat legal. Nevertheless, refusing to enforce the rule during the only period when enforcement could affect the outcome decided the game.
The perverse utility of this method, from the standpoint of a politically biased court, is that it need not openly change the Constitution or announce a lasting rule. It can say only that this particular challenger lacks standing, that this particular injury is too speculative, or that this particular case was brought at the wrong time. Later, when a president whose political orientation differs from that of the court’s majority takes comparable action, the court remains free to decide that another challenger does have standing and that another case is ready to be heard. The same rules remain printed in the books, but they can be applied differently depending upon whose conduct is being challenged.
That is especially dangerous when the conduct concerns elections. Before an election, a court may say that the threatened violation is too speculative or that the challenge has been brought too soon. After the election, it may say that relief comes too late or that the dispute is now moot. Standing, ripeness, and the timing of injunctions are therefore not technical side issues. They can determine whether the constitutional rules governing the consent of the governed can be enforced at all.
The following excerpt is entirely from Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, responding to host Dahlia Lithwick on Slate’s Amicus podcast. It has been lightly edited to correct transcription errors:
When Supreme Court decisions are on procedural grounds involving standing and ripeness, or whether there can be nationwide injunctions, that doesn’t resonate with people. It’s too abstract. And so, if the Supreme Court had handed down a ruling on Monday saying that destroying the East Wing and building the ballroom is constitutional and legal, that would have, of course, gotten more headlines. It would also have been absurd, given the constitutional principles and federal statutes. But instead, what the Supreme Court says here is that there’s no standing.
Your point on nationwide injunctions is so important because I don’t think people realize how important it is to be able to have a nationwide injunction and stop an illegal and unconstitutional practice all over the country. Otherwise, the challenge is that you’d literally need to bring lawsuits in all 94 federal district courts. A Supreme Court ruling on the merits of birthright citizenship gets headlines, but when it’s about nationwide injunctions, it is much harder for it to resonate with people or for people to understand the long-term consequences of what the Supreme Court is doing.
Isn't this sort of thing done with the 2nd amendment all the time? And the 1st, for that matter. These sweeping constitutional freedoms are constantly restricted, interpreted, challenged, etc. I just can't reconcile how inconsistent people can be in their logic just because they're being loyal to party.
[OP] D-R-AZ | 17 hours ago
https://slate.com/transcripts/bnVIUDBxMXh2NVJoU2VBc1lSZHFnTERWcTFEbUhmQ1V0clM2ckV3U0drbz0=
Observation:
One of the quietest ways to disable the Constitution is to leave its words untouched while preventing anyone from enforcing them at the time enforcement matters.
Imagine that, before the final at-bat of a tied baseball game, the opposing team warns the umpire that the batter appears to be using an illegally altered bat. The umpire refuses to examine it, saying that the batter has not yet used it and therefore no violation has occurred. The batter then hits the game-winning home run. When the bat is examined afterward and found to be illegal, the umpire rejects the protest because the game is over and the objection comes too late.
The rule against illegally altered bats was never repealed, and the umpire never declared the bat legal. Nevertheless, refusing to enforce the rule during the only period when enforcement could affect the outcome decided the game.
The perverse utility of this method, from the standpoint of a politically biased court, is that it need not openly change the Constitution or announce a lasting rule. It can say only that this particular challenger lacks standing, that this particular injury is too speculative, or that this particular case was brought at the wrong time. Later, when a president whose political orientation differs from that of the court’s majority takes comparable action, the court remains free to decide that another challenger does have standing and that another case is ready to be heard. The same rules remain printed in the books, but they can be applied differently depending upon whose conduct is being challenged.
That is especially dangerous when the conduct concerns elections. Before an election, a court may say that the threatened violation is too speculative or that the challenge has been brought too soon. After the election, it may say that relief comes too late or that the dispute is now moot. Standing, ripeness, and the timing of injunctions are therefore not technical side issues. They can determine whether the constitutional rules governing the consent of the governed can be enforced at all.
The following excerpt is entirely from Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, responding to host Dahlia Lithwick on Slate’s Amicus podcast. It has been lightly edited to correct transcription errors:
When Supreme Court decisions are on procedural grounds involving standing and ripeness, or whether there can be nationwide injunctions, that doesn’t resonate with people. It’s too abstract. And so, if the Supreme Court had handed down a ruling on Monday saying that destroying the East Wing and building the ballroom is constitutional and legal, that would have, of course, gotten more headlines. It would also have been absurd, given the constitutional principles and federal statutes. But instead, what the Supreme Court says here is that there’s no standing.
Your point on nationwide injunctions is so important because I don’t think people realize how important it is to be able to have a nationwide injunction and stop an illegal and unconstitutional practice all over the country. Otherwise, the challenge is that you’d literally need to bring lawsuits in all 94 federal district courts. A Supreme Court ruling on the merits of birthright citizenship gets headlines, but when it’s about nationwide injunctions, it is much harder for it to resonate with people or for people to understand the long-term consequences of what the Supreme Court is doing.
gh057 | 14 hours ago
Isn't this sort of thing done with the 2nd amendment all the time? And the 1st, for that matter. These sweeping constitutional freedoms are constantly restricted, interpreted, challenged, etc. I just can't reconcile how inconsistent people can be in their logic just because they're being loyal to party.