There are several recent signs that the federal judiciary’s center right is losing patience with its far right.
Last week, a policymaking body within the judiciary announced new steps to combat “judge shopping,” a practice that has allowed Republican litigants to choose to have their cases heard by partisan judges who are well to the right of even the median Trump appointee. The Supreme Court has also heard several cases in its current term where it appears likely to reverse rulings made by the United States Court of Appeals for the Fifth Circuit, a MAGA stronghold that frequently hands down decisions that appear designed to sabotage the Biden administration.
On Monday, the Supreme Court held oral arguments in one of these Fifth Circuit cases, known as Murthy v. Missouri, where the lower court handed down a sweeping injunction forbidding much of the federal government from having any communications at all with social media companies. A majority of the justices appeared very unlikely to sustain that injunction on Monday, with Justice Brett Kavanaugh repeatedly noting that the Fifth Circuit’s approach would prevent the most routine interactions between government officials and the media.
Murthy was one of two cases heard by the justices on Monday involving so-called “jawboning” — cases where the government tried to pressure private companies into taking certain actions, without necessarily using its coercive power to do so. The other case, known as National Rifle Association v. Vullo, involves a fairly egregious violation of the First Amendment. Based on Monday’s argument, as many as all nine of the justices may side with the NRA in that case. (You can read our coverage of the NRA case here.)
Most of the justices, in other words, appeared eager to resolve both cases without significantly altering their Court’s First Amendment doctrines, and without disrupting the government’s ability to function. That’s good news for the NRA, but also…
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