[guest post by JVW]

From Fox News:

The Supreme Court will allow the Trump administration to enforce, for now, its “public charge” immigration restriction, lifting a pair of preliminary injunctions issued by federal judges.

The Monday order followed a 5-4 split vote that divided the court’s conservatives and liberals.

At issue is the administration’s rule issued in August that would restrict immigrants entering the United States if the government believes they will rely on public assistance, such as housing or health care benefits. Lower federal courts had blocked the policy from being implemented while the issue is being litigated.

What is interesting there is that along with a brief order written on behalf of the majority came a concurrence written by Justice Neil Gorsuch which expressed frustration with district and circuit courts attempting to issue nationwide injunctions on behalf of aggrieved parties. Apologies for the long quote, but it’s worth reading in its entirety to understand the barely-concealed contempt Justice Gorsuch has for this sort of advocacy lawfare:

On October 10, 2018, the Department of Homeland Security began a rulemaking process to define the term “public charge,” as it is used in the Nation’s immigration laws. Approximately 10 months and 266,000 comments later, the agency issued a final rule. Litigation swiftly followed, with a number of States, organizations, and individual plaintiffs variously alleging that the new definition violates the Constitution, the Administrative Procedure Act, and the immigration laws themselves. These plaintiffs have urged courts to enjoin the rule’s enforcement not only as it applies to them, or even to some definable group having something to do with their claimed injury, but as it applies to anyone.

These efforts have met with mixed results. The Northern District of California ordered the government not to enforce the new rule within a hodge-podge of jurisdictions—California, Oregon, Maine, Pennsylvania, and the District of Columbia. The Eastern District of Washington entered a similar order, but went much farther geographically, enjoining the government from enforcing its rule globally. But both of those orders were soon stayed by the Ninth Circuit which, in a 59-page opinion, determined the government was likely to succeed on the merits. Meanwhile, across the country, the District of Maryland entered its own universal injunction, only to have that one stayed by the Fourth Circuit. And while all these developments were unfolding on the coasts, the Northern District of Illinois was busy fashioning its own injunction, this one limited to enforcement within the State of Illinois.

If all of this is confusing, don’t worry, because none of it matters much at this point. Despite the fluid state of things—some interim wins for the government over here, some preliminary relief for plaintiffs over there—we now have an injunction to rule them all: the one before us, in which a single judge in New York enjoined the government from applying the new definition to anyone, without regard to geography or participation in this or any other lawsuit. The Second Circuit declined to stay this particular universal injunction, and so now, after so many trips up and down and around the judicial map, the government brings its well-rehearsed arguments here.

Today the Court (rightly) grants a stay, allowing the government to pursue (for now) its policy everywhere save Illinois. But, in light of all that’s come before, it would be delusional to think that one stay today suffices to remedy the problem. 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.

If you can bear with me for a little while longer, Justice Gorsuch continues with an excellent separation-of-powers lecture to his colleagues in the judicial branch [I have removed the citations from the text to make it read a little bit more easily]:

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. Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little opportunity for the adversarial testing of evidence.

This is not normal. Universal injunctions have little basis in traditional equitable practice. Their use has proliferated only in very recent years. And they hardly seem an innovation we should rush to embrace. By their nature, universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions. The traditional system of lower courts issuing interlocutory relief limited to the parties at hand may require litigants and courts to tolerate interim uncertainty about a rule’s final fate and proceed more slowly until this Court speaks in a case of its own. But that system encourages multiple judges and multiple circuits to weigh in only after careful deliberation, a process that permits the airing of competing views that aids this Court’s own decision making process. The rise of nationwide injunctions may just be a sign of our impatient times. But good judicial decisions are usually tempered by older virtues.

Nor do the costs of nationwide injunctions end there. There are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal. Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide. The risk of winning conflicting nationwide injunctions is real too. And the stakes are asymmetric. 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. What in this gamesmanship and chaos can we be proud of?

I concur in the Court’s decision to issue a stay. But I hope, too, that we might at an appropriate juncture take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions.

This is the Neil Gorsuch we were promised when his nomination was first sent to the Senate: the judge who had little tolerance for the games-playing of the administrative state and its various advocacy allies. We’ll never know what Merrick Garland might have done in a similar situation, but I am grateful that the GOP Senate held out for this nomination.

– JVW

As I noted last night, the New York Times has summarized key passages of John Bolton’s book in this way:

President Trump told his national security adviser in August that he wanted to continue freezing $391 million in security assistance to Ukraine until officials there helped with investigations into Democrats including the Bidens, according to an unpublished manuscript by the former adviser, John R. Bolton.

The partisan playbook is to yell “Fake News” and attack the reporter, but that move is already outdated, and the AP has already confirmed it (thanks to Paul Montagu for the link). So that’s Bolton’s story.

Trump denies it:

I NEVER told John Bolton that the aid to Ukraine was tied to investigations into Democrats, including the Bidens. In fact, he never complained about this at the time of his very public termination. If John Bolton said this, it was only to sell a book. With that being said, the…

— Donald J. Trump (@realDonaldTrump) January 27, 2020

What we have here is a classic dispute of fact. A trial is a great way to resolve such disputes. Let’s get John Bolton and Donald Trump on the stand in the Senate, under oath and subject to cross-examination. It’s the only way to learn the truth.

[Cross-posted at The Jury Talks Back.]

[guest post by JVW]

Kobe Bean Bryant’s life, which ended far too soon, was a testament to hard work, tenacity, self-confidence, and second chances. The son of an NBA player and a basketball prodigy from an early age, he dominated competition in his high school years to such a degree that he became the first wing player to forego an obligatory year or two of seasoning in a college program and was drafted straight into the NBA at age 17. When he debuted for the Los Angeles Lakers in the 1996-97 season shortly after his eighteenth birthday, he was at the time the youngest player to ever play in an NBA game. He had come to the attention of Lakers general manager Jerry West, a legendary player in his own right, during a pre-draft workout in which one of the greatest talent evaluators of his era correctly determined that the kid from suburban Philadelphia was worth trading away an established veteran who would later be inducted into the hall of fame in order to get the promising kid.

While his athletic ability and work effort were immediately visible, it took the young man some time to get his proper footing in a league dominated by superstar players at his position like Michael Jordan and Penny Hardaway. Kobe’s first season ended in a playoff series defeat to the Utah Jazz, with the final game featuring the brash rookie shooting four airballs in the game’s final five minutes. The next two Laker seasons would also see early playoff exits, and while Bryant’s rapid development as a player was obvious, it was also apparent that he was often a selfish player, so sure of his own talent that he would at times hog the ball and freeze out his teammates, including Shaquille O’Neal who at the time was the league’s most difficult player to guard. Add to that the gross over-marketing of the kid in the post-Jordan era when the NBA was desperate for a new superstar in the under-seven-foot category and Kobe’s lamentable foray into music, and it was understandable that the flip side of the basketball promise of Kobe Bryant was the potential for him to become completely insufferable.

The glory years for Kobe, Shaq, and the Lakers commenced in the 1999-2000 season as the team gelled, in large measure thanks to their new coach Phil Jackson who forced his two superstars to hold their massive egos in check for the greater good. That season the team won the first of three consecutive NBA titles. Though O’Neal continued during this period to be the NBA’s most dominant player and was the MVP of all three NBA championships, Bryant’s intensity and clutch play were key to the Lakers’ success, and Kobe quickly became a fan favorite.

The absolute bottom of Kobe’s career came after the 2003 season, in which the Lakers were denied a chance at a fourth straight title with a conference semi-final loss to the San Antonio Spurs. Bryant, who continued to be impetuous and unpredictable at age 24, traveled to Aspen to undergo knee surgery without bothering to inform his employer. While there, he had a sexual encounter with a 19-year-old hotel clerk, which she soon characterized as non-consensual over his strenuous denials. Two years earlier Kobe had impulsively married Vanessa Laine only one year after she had graduated from high school, a move which alienated Bryant from his family. The combination of obvious adultery and potential rape immediately ended many of his endorsement deals, though some major deep-pocked corporations managed to keep him on retainer even if they stopped using him in promotions while the criminal trial played out. A panicking Bryant told the Eagle County Sheriff’s Office during his interview that he wished he had just paid the woman money to keep quiet, “like Shaq does,” which caused O’Neal trouble with his own wife and led to a further deterioration of the Shaq-Kobe relationship.

As the 2003-04 season began, basketball fans were treated to the spectacle of defendant Kobe Bryant regularly taking a private airplane to Colorado to appear during pre-trial hearings at the Eagle County Courthouse, then flying back to Los Angeles or other NBA cities to play in games that evening. As befits their client’s personality his legal team played for keeps, leaking salacious details about the accuser’s sexual history and finding former friends and classmates of hers to impugn her credibility. In the end, the accuser unsurprisingly determined that she did not want to testify in court and the prosecution’s case collapsed, though Bryant did apologize, acknowledging that the woman “did not and does not view this incident the same way that I did.” He also paid her an undisclosed sum of money to settle a civil suit she filed against him. Years later, in the era of MeToo and as Bryant attempted to launch a career in the film industry, this controversy would continue to bedevil him.

It was at this low point that Kobe began to rebuild his career and reputation. The Lakers had reached the NBA Finals that spring, but lost to a Detroit Pistons squad that played with infinitely more team chemistry and camaraderie. With the Shaq-Kobe partnership obviously ruptured, O’Neal was traded to Miami and the Lakers began the process of rebuilding, missing the playoffs in 2005 and then bowing out in the first round the next two seasons. Meanwhile a humbled Kobe was working his way back into the public’s good graces by playing hard and lying low. He won his first NBA Most Valuable Player award in 2007, by which point his sponsors had taken cautious steps towards once again using him in promotional campaigns. With the arrival of All-Star teammate Pau Gasol, the Lakers appeared in three consecutive NBA Finals from 2008-10, winning the title the latter two seasons with Bryant being named the Finals MVP both years. His last years in the NBA were riddled with injury as his aging body began to suffer from the reckless abandon with which he played, but in his farewell game he gave Lakers fans one final indelible moment, scoring 60 points and leading the team to a comeback victory in a year where the team once again missed the playoffs.

He also put on the uniform of his country, playing for Team USA in the Olympic qualifying tournament in 2007, then for the gold-medal winning teams at the 2008 and 2012 games. At both the Beijing and London games, Kobe was known as an ardent fan of his fellow USA olympians, making appearances at the swimming, gymnastics, and track and field competitions. He enthusiastically supported Los Angeles’s winning bid to host the 2028 games. He charmed foreign journalists with his fluency in Italian (from a boyhood spent in Italy while his dad played professionally in the Italian League) and Spanish (which he apparently later picked up). The reverence with which he was held by his fellow athletes and other celebrities was evident yesterday throughout social media and through various interviews on television and statements released online.

Though his infidelity and other family stresses caused a fissure in his marriage which nearly led to divorce, Kobe and Vanessa Bryant remained married until his death and had four daughters, whom by all accounts he adored as evidenced by their presence on his Instagram account. Gianna, 13, his second child, was apparently the one who had shown the greatest interest in her father’s sport, and it was traveling to one of her games that the two were killed (along with seven others, including John Altobelli, a successful baseball coach, and his wife and daughter). Sadly, the Bryants’ youngest daughter was only born this past June, and at seven months will have no memories of her father.

Kobe Bryant was a brash young man to whom too much came too soon, not an uncommon story in today’s celebrity culture. He reached the pinnacle of his profession early, then saw his whole carefully constructed edifice come crashing down through a series of ill-advised and selfish decisions. But where that story signals the end of other callow celebrities, Kobe Bryant confidently and painstakingly rebuilt his life and his reputation through hard work, sublimating his ego for the good of the team, and, it would seem, devoting himself to his family. It should have been a happily ever after ending for him, but was stolen away on a hillside in Calabasas one cold and foggy Sunday morning. It would have been rewarding to see him become a respected elder statesman for basketball like a Bill Russell or a Julius Erving, and it certainly looked like he was well on his way. He will be missed.

– JVW