Gorsuch on Covid policies and other Legal News for Week Ending May 26, 2023

Timothy Kowal, Esq.
May 26, 2023

Here are some legal trends and trivia from this week:

  • 💉Justice Neil Gorsuch called COVID emergency orders among “the greatest intrusions on civil liberties in the peacetime history of this country. Executive officials across the country issued emergency decrees on a breathtaking scale,” referencing orders, sometimes backed by criminal enforcement, requiring home quarantine, shuttering schools, businesses, and churches, while officials “allowed casinos and other favored businesses to carry on.” Justice Gorsuch also referenced vaccine mandates and possible government pressure on social-media companies “to suppress information about pandemic policies with which they disagreed.”
  • Justice Gorsuch suggests two lessons: “One lesson might be this: Fear and the desire for safety are powerful forces….We do not need to confront a bayonet, we need only a nudge, before we willingly abandon the nicety of requiring laws to be adopted by our legislative representatives and accept rule by decree….But maybe we have learned another lesson too. The concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government….Decisions produced by those who indulge no criticism are rarely as good as those produced after robust and uncensored debate.” Gorsuch concludes: “Make no mistake—decisive executive action is sometimes necessary and appropriate. But if emergency decrees promise to solve some problems, they threaten to generate others. And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.” (Statement here.)
  • 👉You don’t have to make a posttrial motion to preserve issues you lost in an MSJ. In a unanimous decision in Dupree v. Younger, written by Justice Amy Coney Barrett, the court overturned precedent from a minority of circuits that required litigants to raise legal issues in a motion for judgment as a matter of law after trial, through Federal Rule of Civil Procedure 50. When a "purely legal" issue is resolved at the summary judgment stage, it is preserved for appellate review without a Rule 50 motion, the court said. (Via Ben Shatz.)
  • 💡Justice Bedsworth on citing unpublished cases: “unpublished federal authority is citable. Whether it will do you a lot of good is another matter.” (Via Ben Shatz.)
  • 🤚Ninth Circuit Reinstates Challenge to State’s Loyalty Oath. (Via MetNews.)
  • ⏲️Eighty percent of Supreme Court arguments went over their allotted time this term, for an average of nearly 30 additional minutes. (Via Ben Shatz.)
  • 🎉May judges attend law firm parties? California Supreme Court Committee on Judicial Ethics Opinions (CJEO) invites public comment on a draft formal opinion addressing whether a judicial officer may attend a celebration hosted by a law firm. The judicial officer’s presence at such celebrations, the committee explains, may suggest the judicial officer has a special relationship with or endorses the law firm, which may undermine public confidence in the judicial officer’s fairness in cases where the law firm appears. (Via Ben Shatz.) Comment: Some people won’t be happy until we make judges live in a soundproof booth.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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