Marc: Let's talk about the Supreme Court.
Preet: This whole business about the no universal, no nationwide injunctions, a lot of people talked about the legality of it, the constitutionality of it, the back and forth between Justice Amy Coney Barrett and Justice Jackson.
I wanted to ask you, given what you do that you're sort of boots on the ground, how's that gonna affect your practice, and what you do to vindicate people's voting rights and other things along those lines, how's it gonna affect you?
Marc: The truth is we don't know. There have been a lot of people who have jumped to conclusions. On the one hand, I'm gonna have three hands.
On the one hand, you have Justice Barrett's opinion, which is an opinion of six justices. Her desire to have a broad, albeit without any of the more liberal justices, but to have the entire range of conservative justices on one opinion without it being fractured, meant that she elided past several really important questions.
You actually see those questions then raised in the concurrences by, on the one hand, Justice Thomas and Alito, and on the other hand by Justice Kavanaugh. Justice Alito basically says, “This opinion is good as far as it goes, but if we allow third party standing, and we allow class actions, and we don't do something about the APA, then this really won't have any bite.” And at the other side, you have Justice Kavanaugh writing for himself, not joined by anyone else, saying, “This applies to the lower courts, but of course, it doesn't apply to the Supreme Court. We can still, through our docket, essentially enforce the equivalent of universal injunctions.”
Preet: Does that give you comfort?
Marc: What I've told folks is it doesn't give me comfort because it was not signed by any other justice. That is great that that is what Justice Kavanaugh believes the line will be, but I suspect that most of the justices don't know where they want the line to be. I think Justice Alito knows where he wants the line to be, and Justice Thomas knows where he wants the line to be. I don't think the Chief really knows where he wants the line to be, and I don't think that Justice Barrett does.
Of course, the more liberal justices are going to have to make a tactical decision in light of this decision, where they think the line is right. This is one of those things that is a little bit right now of wish casting from all sides, or fear casting, in some cases, from all sides. It leaves open a lot of questions about how this actually works.
I'll give you one that is in the voting arena, that I don't think anyone knows the answer. If you can't have a universal injunction, which means a judge can only grant an injunction necessary for the scope of relief necessary to give the plaintiffs full relief. That’s essentially what Justice essentially what Justice Barrett said.
What does that mean if we bring a lawsuit on behalf of, for example, the Democratic Party to vindicate the right of Democratic voters to use drop boxes? Does that mean that the complete relief would just be that only Democrats can use drop boxes? Or does it mean that actually you need essentially a full injunction, right?
Because there are other principles that come into play when you start to parse relief this way. What does it mean for equal protection law if you're not giving full relief to everybody? I don't think we know the answer to that. I think what we do know is that...
.png?height=50&upscale=true&name=Bluesky_Logo-grey%20(2).png){kind=logo}
