This. It's an object lesson for #SCOTUS on why, one of these days, it ought to enter at least the 20th century (if not the 21st).https://twitter.com/rickhasen/status/829825798747992065 …
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All in all, this opinion manages to reach merits unanimously,decide very little.Hard to see 5 votes (maybe not even 3)to overturn at
#SCOTUS
OK 9th cir/#appellatetwitter nerds: what about trying to go en banc in hopes of getting a conservative draw? (But if you've lost Clifton)
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So what happens next in EO case? Trump admin will either petition entire 9th Cir. (en banc) or
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#AppellateTwitter seems to lean#SCOTUS. That would likely not be to get a win but to hope for a 4-4 split. More likely is 6-2 (/2) -
That's not how it might come out when case is fully done but in this procedural posture. Maybe you get J. Alito or Thomas to dissent (/3)
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Don't think that's the wise course, but sounds like that's what the President wants. But meanwhile (/4)
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case will proceed in district court on the preliminary injunction hearing. There will be more evidence, a ruling, and new 9th appeal (/5)
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based on that ruling, we could see another round of emergency stay requests from losing side. (/6)
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under normal circumstances this could easily stretch more than a year. And so what's the alternative? (/7)
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Trump admin could withdraw and rewrite the EO, solving some of the constitutional issues but given Pres's statements not all (/8)
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A new EO could be subject to new challenge starting all this over. But if it is drafted more carefully, better chance of being upheld <end>
End of conversation
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If DOJ pushes ahead on a sloppy EO, a flimsy record w/an attorney barely phoning it in at oral argument, it'll lose en banc.pic.twitter.com/M4EbqWW6qy
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With 7/25 active judges being GOP appointees and Sid Thomas guaranteed a spot, v hard to draw 6 conservative votes on an en banc
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They could slow walk this & go for the en banc in the hopes that dragging it out might get Gorsuch confirmed before SCOTUS appeal
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Of course, Chuck Schumer can see that as plainly as anyone can as well.
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Not saying it'd work. or even that Gorsuch would clinch a win. But rushing to a 4-4 SCOTUS (at best) isn't a winner
End of conversation
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Hard to get en banc without a circuit split. Hard to argue "important issue of law" on a TRO or even PI.
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seems likelihood of getting just the right draw to win is low. Not just any conservative(s) will do...
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No chance at rehrg en banc.
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But there aren't enough votes to go en banc to then try to roll the dice.
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