Quote (ThatAlex @ Jan 29 2020 10:22pm)
The fact that this was a 5-4 decision bothers me. How do so many of the brightest legal minds disagree on this subject when examining the same legal matter? It reeks of political partisanship. This is why SCOTUS seats are so contested.
IANAL but I think these are all preliminary injunctions / restraining orders / that boil down to the judiciary steadily eroding and violating the spirit of the four-pronged test of whether an preliminary order should be issued before a trial, coupled with the extremely prevalent forum-shopping in districts that then issue nationwide injunctions. Its something that some supreme court justices have been eyeing with a disapproving glare. If liberal jurists are able to say that pretty much
anything counts as 'irreparable harm', it strikes a whole prong off the test. Its nonsensical when they can issue injunctions for policies you can remedy by simply overturning later, when they argue that any suffering or lost freedoms in the interim are irreparable. It basically renders that test moot. Like the travel ban injunction, the justices ruled 5-4. Well, how do the 4 liberal justices argue that a travel ban causes irreparable harm if you can repair it by
letting people into the country if it gets overruled? They even specifically cited harm to the tourism industry when the definition of irreparable harm specifically precludes financial damages, because they are fungible and can be repaid.
Couple that with stuff like purely subjective interpretation of "public interest" and "balance of harms" that positions judges to be unelected arbiters of public policy. Add a 'substantial likelihood of success' that is basically just their singular opinion instead of an acknowledgement of how higher courts will rule and the easily predictable breakdown of the supreme court, letting those lower courts enact injunctions they
know won't stick despite an explicit requirement being that they believe it will stick.