I was listening to some of this exchange on NPR earlier. What strikes me is that the justices apparently can’t make a decision on the unconstitutionality of this stupid EO until a case makes it to them, when this case is obviously a part of the very same issue. I understand why, because without a check we’d be at severe risk of judicial overreach, but in this case, allowing SCOTUS to come out and say “Unconstitutional thing is unconstitutional” just seems like the normal and correct thing to do.
I don’t understand it for the reason you said. But also, they went out of their way to take a fake theoretical website case with no defendants who had damages just so they could rule on it.
The right answer in normal times would probably be a class action, but the govt lawyer was saying they’d probably fight that, meaning it will get hung up for a long time in the courts almost certainly, meanwhile they can seemingly keep stomping on our collective rights. It was very frustrating to listen to.
It seems based on questioning from the female justices that they’re highly skeptical of any scheme to invalidate nationwide injunctions. It’s hard to make a case for it. I wouldn’t be surprised if it were ruled 7-2 against.
