{"id":126175,"date":"2025-07-09T15:32:51","date_gmt":"2025-07-09T23:32:51","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/07\/09\/forget-it-ketanji-its-chinatown\/"},"modified":"2025-07-09T15:32:51","modified_gmt":"2025-07-09T23:32:51","slug":"forget-it-ketanji-its-chinatown","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/07\/09\/forget-it-ketanji-its-chinatown\/","title":{"rendered":"Forget It Ketanji, It\u2019s Chinatown"},"content":{"rendered":"
\"\"
(Photo by Win McNamee\/Getty Images)<\/figcaption><\/figure>\n

At the end of Chinatown<\/em>, as our protagonist watches the bad guys win, he\u2019s pulled away and admonished, \u201cForget it, Jake. It\u2019s Chinatown.\u201d The phrase lives on as a warning when corruption runs so deep that there\u2019s no fighting it. In the film, the bad guy is a rich real estate baron who manipulates a government agency and bilks senior citizens for his personal profit. Despite the pervasive criminality, he\u2019s actually backed up by law enforcement who aid and abet his dirty work. In case that sounds like anyone you know.<\/p>\n

Also the bad guy is a pedophile sexually attracted to his daughter. Do with that information what you will.<\/p>\n

In Trump v. American Federation of Government Employees<\/a><\/em>, the Supreme Court again invoked the unaccountability shield of its shadow docket to strike down a preliminary injunction issued in the Northern District of California that had blocked Executive Order No. 14210<\/a>, Trump\u2019s 5-page edict that turned the federal government over to someone named \u201cBig Balls\u201d with a mission to slash the federal workforce. While the executive branch can obviously hire and fire agency staff, the plan to wholesale gut departments approved and funded<\/em> by Congress without congressional action runs afoul of well-established precedent, not to mention the \u201cMajor Questions Doctrine\u201d that conservative legal scholars invented to prevent Democratic presidents from taking basic executive action through an agency (like, say, DOGE) without the express written consent of the House, the Senate, and probably Major League Baseball. Given that legal landscape, the Supreme Court obviously supported the injunction\u2026<\/p>\n

PSYCHE!<\/p>\n

\n

The District Court\u2019s injunction was based on its view that Executive Order No. 14210, 90 Fed. Reg. 9669 (2025), and a joint memorandum from the Office of Management and Budget and Office of Personnel Management implementing that Executive Order are unlawful. Because the Government is likely to succeed on its argument that the Executive Order and Memorandum are lawful \u2014 and because the other factors bearing on whether to grant a stay are satisfied \u2014 we grant the application.<\/p>\n<\/blockquote>\n

Likely to succeed\u2026 why? The Court declines to say. But the government is likely to succeed, we are assured, in the two paragraph order authorizing the dismantling of the federal government while the merits can be hashed out later. Might this strategy result in irreparable harm? The unsigned majority opinion does not even mention that part of the injunctive relief equation. <\/p>\n

They must have forgotten it like it was a prong of the First Amendment or something<\/a>. <\/p>\n

Justice Ketanji Brown Jackson penned the lone dissent, though Justice Sotomayor wrote a concurrence that might as well have said, \u201cForget it Ketanji, It\u2019s Chinatown.\u201d<\/p>\n

\"JUSTICE
<\/figcaption><\/figure>\n

This seems like Sotomayor running back her strategy from the D.V.D. v. DHS<\/em> case<\/a>. In that case, also a shadow docket opinion, Sotomayor wrote a lengthy dissent that took it upon itself to characterize the majority opinion. Hey, if the Republican justices want to shirk responsibility with unsigned, unexplained orders, why not take the initiative? Signaling to the lower courts that the government had flunked procedure and only appealed the preliminary injunction \u2014 arguably too broad because it applied to \u201cany alien\u201d \u2014 and not the remedial order \u2014 specific to certain individuals already sent to Africa. Therefore, the sparsely reasoned shadow docket opinion did not properly stop the remedial order. It had the benefit of being both clever and accurate. The Supreme Court went ahead and issued a follow up clarifying that they were going to stay the remedial order too. They based it on dicta from an inapposite 1947 decision<\/a>. Really.<\/p>\n

Here, Sotomayor does much the same but in a concurrence, leaning into the idea that the executive order required DOGE to come up with a plan first and so, she reasons, the district court can\u2019t stop DOGE from coming up with a plan<\/em> to fire everyone and the courts can decide if that plan is an illegal wreck later. <\/p>\n

Kagan, by the way, joined the D.V.D.<\/em> clarification and seemingly this opinion too. It appears that she\u2019s employing a strategy she\u2019s used before<\/a> where she sides with the majority on formal, respect for precedent grounds in hopes that they\u2019ll return the favor.<\/p>\n

\"\"
<\/figcaption><\/figure>\n

But Justice Jackson wasn\u2019t willing to let it slide. The executive order at issue might technically only ask Musk\u2019s minions for a plan, but the ask is in itself an assault on the separation of powers and the Court offered nothing to explain how the preliminary injunction failed to clear all the established considerations. Unfortunately, as Jackson explains, the common sense and well-settled legal principles ran afoul of a powerful obstacle: \u201cthis Court\u2019s demonstrated enthusiasm for greenlighting this President\u2019s legally dubious actions in an emergency posture.\u201d<\/p>\n

\"\"
<\/figcaption><\/figure>\n

Jackson expounds upon that history, discussing both the multiple times that Congress authorized presidents to embark on reorganization efforts, and the times when presidents ASKED to perform minor government reorganization and Congress told them no. Including, for the record, Donald Trump who in his first term understood \u2014 who are we kidding\u2026 who had people working for him then<\/em> who understood \u2014 that the White House couldn\u2019t embark on an effort to reorganize the government after Congress refused.<\/p>\n

It will shock you not at all to learn that Jackson also managed to remember the irreparable harm prong of the test.<\/p>\n

\"\"
<\/figcaption><\/figure>\n

The folks who might \u201cknow\u201d the answer to these questions are the district judges themselves. The fact that Justice Jackson once served as a district judge shines through in the disdain she has for two-step-removed appellate jurists substituting their reasoning for a trial judge without the benefit of the record or the courtesy of a real opinion<\/a>. \u201c[H]ubristic and senseless,\u201d to use her words. But, hey, maybe Amy Coney Barrett can channel her experience of grading papers to scold Jackson again for daring to know how trial courts actually work.<\/p>\n

It\u2019s easy to say Justice Jackson has the better of the case here since she\u2019s the only one bothering to defend her position, but it\u2019s hard to see how the majority would get ahead on any of these arguments. The last time they tried Jackson on injunctions they refused to \u201cdwell\u201d on her arguments<\/a>. At least ignoring them altogether avoids further embarrassment. But maybe, just maybe, we should demand the Supreme Court put in the limited effort required to try to respond?<\/p>\n

Ah. There I go again. I can hear it softly over my shoulder, \u201cForget it, Joe. It\u2019s One First Street.\u201d<\/p>\n

(Opinion on the next page\u2026)<\/em><\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n

The post Forget It Ketanji, It\u2019s Chinatown<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"
(Photo by Win McNamee\/Getty Images)<\/figcaption><\/figure>\n

At the end of Chinatown<\/em>, as our protagonist watches the bad guys win, he\u2019s pulled away and admonished, \u201cForget it, Jake. It\u2019s Chinatown.\u201d The phrase lives on as a warning when corruption runs so deep that there\u2019s no fighting it. In the film, the bad guy is a rich real estate baron who manipulates a government agency and bilks senior citizens for his personal profit. Despite the pervasive criminality, he\u2019s actually backed up by law enforcement who aid and abet his dirty work. In case that sounds like anyone you know.<\/p>\n

Also the bad guy is a pedophile sexually attracted to his daughter. Do with that information what you will.<\/p>\n

In Trump v. American Federation of Government Employees<\/a><\/em>, the Supreme Court again invoked the unaccountability shield of its shadow docket to strike down a preliminary injunction issued in the Northern District of California that had blocked Executive Order No. 14210<\/a>, Trump\u2019s 5-page edict that turned the federal government over to someone named \u201cBig Balls\u201d with a mission to slash the federal workforce. While the executive branch can obviously hire and fire agency staff, the plan to wholesale gut departments approved and funded<\/em> by Congress without congressional action runs afoul of well-established precedent, not to mention the \u201cMajor Questions Doctrine\u201d that conservative legal scholars invented to prevent Democratic presidents from taking basic executive action through an agency (like, say, DOGE) without the express written consent of the House, the Senate, and probably Major League Baseball. Given that legal landscape, the Supreme Court obviously supported the injunction\u2026<\/p>\n

PSYCHE!<\/p>\n

\n

The District Court\u2019s injunction was based on its view that Executive Order No. 14210, 90 Fed. Reg. 9669 (2025), and a joint memorandum from the Office of Management and Budget and Office of Personnel Management implementing that Executive Order are unlawful. Because the Government is likely to succeed on its argument that the Executive Order and Memorandum are lawful \u2014 and because the other factors bearing on whether to grant a stay are satisfied \u2014 we grant the application.<\/p>\n<\/blockquote>\n

Likely to succeed\u2026 why? The Court declines to say. But the government is likely to succeed, we are assured, in the two paragraph order authorizing the dismantling of the federal government while the merits can be hashed out later. Might this strategy result in irreparable harm? The unsigned majority opinion does not even mention that part of the injunctive relief equation. <\/p>\n

They must have forgotten it like it was a prong of the First Amendment or something<\/a>. <\/p>\n

Justice Ketanji Brown Jackson penned the lone dissent, though Justice Sotomayor wrote a concurrence that might as well have said, \u201cForget it Ketanji, It\u2019s Chinatown.\u201d<\/p>\n

\"JUSTICE
<\/figcaption><\/figure>\n

This seems like Sotomayor running back her strategy from the D.V.D. v. DHS<\/em> case<\/a>. In that case, also a shadow docket opinion, Sotomayor wrote a lengthy dissent that took it upon itself to characterize the majority opinion. Hey, if the Republican justices want to shirk responsibility with unsigned, unexplained orders, why not take the initiative? Signaling to the lower courts that the government had flunked procedure and only appealed the preliminary injunction \u2014 arguably too broad because it applied to \u201cany alien\u201d \u2014 and not the remedial order \u2014 specific to certain individuals already sent to Africa. Therefore, the sparsely reasoned shadow docket opinion did not properly stop the remedial order. It had the benefit of being both clever and accurate. The Supreme Court went ahead and issued a follow up clarifying that they were going to stay the remedial order too. They based it on dicta from an inapposite 1947 decision<\/a>. Really.<\/p>\n

Here, Sotomayor does much the same but in a concurrence, leaning into the idea that the executive order required DOGE to come up with a plan first and so, she reasons, the district court can\u2019t stop DOGE from coming up with a plan<\/em> to fire everyone and the courts can decide if that plan is an illegal wreck later. <\/p>\n

Kagan, by the way, joined the D.V.D.<\/em> clarification and seemingly this opinion too. It appears that she\u2019s employing a strategy she\u2019s used before<\/a> where she sides with the majority on formal, respect for precedent grounds in hopes that they\u2019ll return the favor.<\/p>\n

\"\"
<\/figcaption><\/figure>\n

But Justice Jackson wasn\u2019t willing to let it slide. The executive order at issue might technically only ask Musk\u2019s minions for a plan, but the ask is in itself an assault on the separation of powers and the Court offered nothing to explain how the preliminary injunction failed to clear all the established considerations. Unfortunately, as Jackson explains, the common sense and well-settled legal principles ran afoul of a powerful obstacle: \u201cthis Court\u2019s demonstrated enthusiasm for greenlighting this President\u2019s legally dubious actions in an emergency posture.\u201d<\/p>\n

\"\"
<\/figcaption><\/figure>\n

Jackson expounds upon that history, discussing both the multiple times that Congress authorized presidents to embark on reorganization efforts, and the times when presidents ASKED to perform minor government reorganization and Congress told them no. Including, for the record, Donald Trump who in his first term understood \u2014 who are we kidding\u2026 who had people working for him then<\/em> who understood \u2014 that the White House couldn\u2019t embark on an effort to reorganize the government after Congress refused.<\/p>\n

It will shock you not at all to learn that Jackson also managed to remember the irreparable harm prong of the test.<\/p>\n

\"\"
<\/figcaption><\/figure>\n

The folks who might \u201cknow\u201d the answer to these questions are the district judges themselves. The fact that Justice Jackson once served as a district judge shines through in the disdain she has for two-step-removed appellate jurists substituting their reasoning for a trial judge without the benefit of the record or the courtesy of a real opinion<\/a>. \u201c[H]ubristic and senseless,\u201d to use her words. But, hey, maybe Amy Coney Barrett can channel her experience of grading papers to scold Jackson again for daring to know how trial courts actually work.<\/p>\n

It\u2019s easy to say Justice Jackson has the better of the case here since she\u2019s the only one bothering to defend her position, but it\u2019s hard to see how the majority would get ahead on any of these arguments. The last time they tried Jackson on injunctions they refused to \u201cdwell\u201d on her arguments<\/a>. At least ignoring them altogether avoids further embarrassment. But maybe, just maybe, we should demand the Supreme Court put in the limited effort required to try to respond?<\/p>\n

Ah. There I go again. I can hear it softly over my shoulder, \u201cForget it, Joe. It\u2019s One First Street.\u201d<\/p>\n

(Opinion on the next page\u2026)<\/em><\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n

1<\/strong> 2<\/a>Next \u00bb<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

(Photo by Win McNamee\/Getty Images) At the end of Chinatown, as our protagonist watches the bad guys win, he\u2019s pulled away and admonished, \u201cForget it, Jake. It\u2019s Chinatown.\u201d The phrase lives on as a warning when corruption runs so deep that there\u2019s no fighting it. In the film, the bad guy is a rich real […]<\/p>\n","protected":false},"author":3,"featured_media":126135,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-126175","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/07\/Headshot-300x200-0NGnt3.jpeg?fit=300%2C200&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/126175","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=126175"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/126175\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/126135"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=126175"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=126175"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=126175"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}