Somin on How the Courts Are Doing

At The Volokh Conspiracy Ilya Somin reports that the court system is keeping the Trump Administration in check better than some political narratives are making it sound.

On that point, Somin quotes another legal scholar, Steve Vladeck, at some length, including the following:

President Trump's executive order purporting to limit birthright citizenship[, for example,] remains on hold -- thanks to a series of rulings by lower courts after the Supreme Court's 6-3 ruling on June 27. These lower-court rulings have flown under the radar -- at least largely because the government has not sought emergency relief from the courts of appeals or the Supreme Court, nor has it refused to comply with them. For now, it is "taking the L."

That's an important story unto itself -- not just in the birthright citizenship cases, but more generally. For all of the attention that is (understandably) being paid to the unprecedented number of cases the Trump administration is rushing to the Supreme Court (we're up to 28), and to the Court's (troubling) behavior in those cases, they represent only a small subset of the broader universe of legal challenges to Trump administration behavior. In the majority of cases in which the government is losing in the lower courts, it is (1) not seeking emergency or expedited intervention from above; and (2) otherwise complying with the adverse rulings while the cases move (very slowly) ahead. [bold added, links omitted]

Somin summarizes a bit more of Vladeck:

[T]he administration often chooses not to appeal, or to do so only slowly. He also notes that this record shows that the [Supreme] Court's ruling in Trump v. CASA, Inc., barring most universal injunctions, has so far not had the devastating effect some predicted, because lower courts have found other ways to impose broad injunctions constraining illegal policies. [bold added]

Somin's overall assessment of how the courts are doing is along the lines of not as bad as some think, but meriting vigilance.

-- CAV