Explainer

People have a difficult time making hard choices.

The Trolley Problem brings is one of the ways that we explore ethical choices. The general premises are that there are five people that will die if you do nothing. There is one person, who is currently safe, who can be sacrificed to save the five.

Do you do nothing and let five people die, or do you throw the switch and kill the one?

What if we change the problem statement a little, what if the one was a child? What if the one was a woman? What if the one was a “person of color”? What if it was your wife?

Now take that same list of changes and insert it into the five. What if one of the five was a child, a woman, a person of color, your wife?

Ok. How about if your daughter was the one and your son was one of the five?

The problem hasn’t changed, but the emotional stress is greatly increased.

Politicians know this. They use it to their advantage.

The term is “Emotional Blackmail.”

Consider the following dilemma, you can choose to pay more in taxes or the school system’s proposed budget is capped at a half million increase rather than the 3.5 million increase they were asking for.

For me, that’s an easy choice. Cap at a 0.5 million increase. At which point the emotional blackmail begins.

“If you don’t give use the extra three million dollars, we will have to fire teachers.”

Is that really the only choice?

That is the question I posed a teacher. What other things in the budget can be cut, before we have to fire teachers.

Now, I’ve been told that I’m against teachers. That I oppose her. Why? Because I don’t want to cut teachers?

For her, there are only two choices, pay or cut teachers. If I don’t want to pay more in taxes, I must hate teachers and want them fired.

So I asked her about programs in the budget that could be cut instead. In our first iteration, there were no programs she was willing to cut.

The problem she has is that every cut is equally bad. Every choice is equally bad. Since all the choices are bad, the only option is to get the 3 million dollars out of the stone of taxpayers.

We had a similar issue at a family level years ago. We had a 16k windfall. We all agreed we would put that money into the homestead. The problem was that nobody could agree on what we should do.

Should we get new siding for the house? Should we replace one of the vehicles? Should we pay off a loan?

It wasn’t even that simple, there were about a dozen different projects or expenses we were considering.

By default, humans will spiral rather than make a hard decision.

I had to listen to people tell me that project A was more important than project B, but B was more important than C. And C was more important than A.

It was a circle. Everything was more important than everything else.

The first process was having everybody create an ordered list of by importance.

They couldn’t do it. They all had situations where they had multiple things with equal importance. Or worse still, some couldn’t do it because they couldn’t choose.

The method that did work was creating binary choices.

We lay out a grid, in that grid we compare every item to every other item, asking if item row was more important than the item in the column.

Once that grid is filled out, we can create an ordered list. Once we had ordered lists, we could present and come to an agreement as to what our priorities were.

From this table, we can create an ordered list

1. Roof
2. Foundation
3. Gutters
4. Siding
5. Paint
6. Truck
7. Car
8. Computer

The problem we have with our school budget is that every program is equally important. In the end, they will likely fire teachers and programs.

Dellinger was fired. He went to the District Court the same day and demanded that he be reinstated, claiming the President didn’t have the authority to fire him. He did this at the end of the day on Friday. The judge in the case issued the TRO the same day.

The government appealed to the Circuit court, which kicked it back down because the case was in an interlocutory state. I.e., there wasn’t a final judgment in the case. If this status were to continue, this district court would have the ability to block the president’s authority to fire for the course of the case.

For rogue inferior courts and people like Dellinger, this is a win. All they need to do is drag out the case for as long as they can. Stopping The People’s agenda.

The TRO will expire on the 26th. The District Court will be hearing arguments for a Preliminary Injunction on the 26th. We can expect the District Court to issue their order on the 26th.

Given the activist tendencies of this judge, he is likely to grant the Preliminary Injunction.

If the Preliminary Injunction is issued, the President’s ability to fire anybody will be on hold until this case is fully resolved.

Any other challenges to being fired will be filed in DC District Court. They will all be assigned to this judge. This judge will then put them under the same PI until final judgment.

The Court has said that they will not issue an opinion until there is a Preliminary Injunction. This is still a live issue before the Supreme Court.

The two most liberal justices, Sotomayor and Jackson, would just have denied the vacatur.

Justice and Gorsuch would have issued an opinion, rather than waiting for the PI.

I won’t quote Gorsuch, but I love how his dissent is “When the plain text of the Constitution is implicated, it is the plaintiff’s burden to prove a tradition firmly based on this Nation’s historical regulations”. Gorsuch then cites numerous cases from the founding through until now which show a tradition of the courts not having the authority to reinstate fired federal employees.

When fired federal employees have sued for relief, they have been granted back pay, but never have they been reinstated.

I will quote the slap down of the rogue inferior district court:

We’ve talked about the process of litigation in a civil suit.

A complaint is filed. In the complaint, the plaintiffs state what they are challenging, why they believe the law supports them, what harm they are suffering, and what relief they seek.

The facts in this case are that on Friday, February 7, 2025, Trump “fired” Dellinger. Dellinger was “Special Counsel”. Being a legal eagle, Dellinger filed suit in federal district court to stop Trump from firing him. Before the government could even respond to the filing, the court held a hearing.

The court issued an “administrative stay” on Trump’s action. This is a made up term. A Court can issue injunctions, a TRO is a type of injunction, and they can issue judgments. They can also stay injunctions and judgments. They can’t “stay” things outside the court system.

So “administrative stay” is actually a TRO but using language to hide the fact.

The court’s order required the government to “recognize Dellinger as Special Counsel” and to let him back into the office. It also required the acting Special Counsel to be removed from the position.

That TRO ran through February 13th.

This is exactly right. The Winter factors order the courts to first look at the likelihood of success on the merits. The inferior courts are required to do so. If the district court judge and called this a “TRO” he would have had to use the Winter factors.

By using a made up term for TRO, the judge attempted to avoid the clear instructions of the Supreme Court on how to decide if an injunction should be issued.

To put this in perspective, Winter factors are to court cases what the four rules of gun safety are to gun culture. If somebody doesn’t fallow the four rules, they are at best ignorant, at worse willfully dangerous to themselves and others.

For the court to ignore Winter factors falls into the same category as pointing a loaded pistol at your junk and seeing how fast you can take up the slack in your trigger.

Katsas, the Circuit Judge writing above, says that the Winter factors were not used. The District judge did a shit job. Then went on to say that this case was not ripe to be heard. That Trump needed to wait until a TRO or a preliminary injunction was issued.

This is bogus.

Any time a Constitutional protected right or authority is delayed, irreparable harm has been done. A right delayed is a right denied.

The district judge has gone rogue.

The Trump administration was having none of this. They reached out to the Supreme Court, via their emergency docket, 24A790 to vacate the district court’s order.

So what authority did The People grant the President?

The executive Power shall be vested in a President of the United States of America. Article II, § 1, U.S. Constitution.

He is the boss of the executive branch. There doesn’t seem to be much limiting him. The limits are for Treaties, appointments of Ambassadors, public Ministers and Consuls, Supreme Court justices, and all other Officers of the United States.

Dellinger is an officer of the United States.

The Constitution does not explicitly lay out that the President can fire anybody. On the other hand, it has long been recognized that the authority to hire comes with the authority to fire.

What is the argument of Dellinger as to why SCOTUS should not vacate the order? That it would be granting an exception to the general rule that TRO’s can’t be appealed.

Amazing, the state seems to appeal any TRO that goes against them. But now TRO’s can’t be appealed?

Dellinger has not shown he has been harmed, much less irreparably harmed. It is unlikely that he will succeed on the merits of his case. Yet, he wants to let an inferior court stop the President while the case winds its way through the halls of (in)justice.

A hearing was held on Friday. I expect the judge to issue an order regarding the Preliminary Injunction on Monday.

The TRO expired on Friday, so the judge will either issue an order regarding the case. If she is going to go rogue, she will want to have that done on Monday to stop the President from doing his duty. If she wants to respect the constitution, she will issue an order denying the preliminary injunction.

In my businesses, I sometimes had a bookkeeper. She would receive the bills, make entries in the books, then bring me checks to sign to pay those bills.

I could also tell her to issue a check to somebody or some business. It was never her job to tell me not to pay that person, nor to verify if that entity was supposed to get the money. It was my job to make sure that when I told her to pay an entity, that entity should be paid, and how much.

She was supposed to tell me “no”, only if it would run afoul of the law or if we didn’t have the cash for it. If it meant we would be short later, she still did it.

The Bureau of Fiscal Service (BFS) is that bookkeeper for the Federal Government. They are tasked with making payments. They are not tasked with verifying that the payment should be made.

The decision to make a payment comes from other entities within the bureaucracy.

These payment files are checked against a list of “don’t pay”. If the recipient of the payment is on any of those lists, the payment is held. The agency that sent the payment file is responsible for determining if the payment is proper.

In the best of worlds, this would mean that no payments went to bad actors.

Now consider the case of the President issuing an Executive Order stopping payments to purple people eaters. There are dozens of agencies that send money to purple people eaters. All of those agencies are responsible for stopping payment files from going through to pay purple people eaters.

The BFS receives a payment file to send a payment to a PPE. If that PPE is not on the do not pay list, they will send the payment to that PPE. If the PPE is on a no pay list, the payment is held and the agency is informed.

If that agency sends back “pay it”, the BFS pays it. And the PPE gets money, regardless of what the President ordered.

When the bureaucracy is working with the President, every agency would have heard the “stop payments to PPEs” and would have done so. Any payment files that were already sent might be called back or stopped. If the BFS flags a payment as going to a PPE, everybody says “good job”.

If the bureaucracy is at odds with the President, they ignore the EO and do whatever the hell they want. If BFS flags any payments, they just order them paid.

If some agencies are attempting to obey the President, there can still be others that are not.

Worse, in many cases, contracts are let and budgeted. Some low level GS-2 with TDS can order a payment on a contract they control, and it just gets paid. Even if all of his bosses have told him “no”.

The President has ordered that no more payments to PPEs be made. To make this happen, he can either send people who are willing to obey him to every agency and every desk where somebody can send a payment to a PPE.

Or, he can send a few people to the BFS, and they can analyze each payment file as it comes in, check to see if it is a PPE payment.

Watching the bookkeepers doesn’t mean that the bookkeepers are doing something “wrong”, it is just the proper chock point in the flow of money.

The argument being made by these former treasury officials is that “career officials” are non-partisan and can be trusted to do the right thing.

For decades, BFS has been staffed by nonpartisan career employees led by nonpartisan career official…

There appears to be a claim without evidence that these workers are nonpartisan. At least they left off the “nonpartisan” when describing the fiscal assistant secretary, their boss.

They claim that all these nonpartisan career employees have undergone a security screening. Screening is one of those weasel words we see people use when they want the reader to think one thing when it isn’t true.

When I purchase a firearm, I fill out a 4473 and a “background check” is performed. This is a type of “security screening”. Having undergone a “thorough security screening” does not mean that this person has a clearance. If they had clearances, the brief would have said they have clearances.

This is intended to make it seem that the DOGE team’s actual clearances are not as thorough or complete as the BFS security screening. The reality is that any real clearance is likely better than the screenings these people got.

There is more, I’ll leave you with Grok’s explanation, it isn’t bad.

Every piece of information the government or military processes has a classification level assigned to it.

Currently, the federal government lists four levels of clearances that are associated with classification levels.

The other level is “No Clearance”.

Information that is classified as “Confidential” could cause damage to national security if disclosed. Note the weasel word “could”. The definition will often add “without authorization”.

This is the “lowest” classification. There are really two other levels below this.

There is For Official Use Only (FOUO) which is sometimes called Sensitive Unclassified.

This is information that anybody working at a government site might be exposed to. It may not carry any markings. So if you were to see a list of SSN, you don’t have to be told that those are Sensitive Unclassified or FOUO.

This is the same in the health care industry or data processing industry. By this, I mean that there are laws in place that protect people from sharing my personal information. My doctor can’t share my health information. I can’t share your name or email information, if I collect it via a credit card payment.

This doesn’t mean that people aren’t stupid. At one government installation I used to work at, they had a recycling program for paper. You could take used printer paper home to use for projects and stuff. Think of using it in the bottom of a bird cage.

The head of the installation put an end to it when he picked up something at a local shop, wrapped in used paper. The paper was from the installation and had SSN plus wages printed on it.

By the time I got to the installation, we had industrial shredders. Every piece of paper that would have gone in the garbage was fed through the shredders.

What does this mean in terms of the DOGE team? If they are properly employed and tasked to do the work they are doing, they have all the clearances they need to see FOUO and Sensitive, Unclassified material. They don’t need a clearance to see and work with that data.

As soon as we move to information that is classified, certain things become true. First, it is supposed to be marked.

This is one of the issues with the Hilary emails. She had information on her private server that had no markings, which came from classified sources. Those classified sources were marked.

In addition, she was informed that the source of that information was classified, and the information was classified, regardless of markings.

In other words, if I observe a weapons test and I see something that I know is or will be classified, I must treat it as classified. Even if it is not “marked”.

So information is classified. It is classified by level. Just because you have a clearance, it doesn’t mean that you have access to the information.

You must also have a need to know.

I, personally, got racked over the coals by one Army Officer and then got to watch our security officer rake him over the coals. The difference being that the Army Officer could have had lots worse happen to him.

He was in an area that implied he had a clearance. I knew he had a clearance. I even knew what level he had. It was higher than mine, at the time. He asked to see some classified information and I refused.

For this, I was raked over the coals by this officer. I told him that I had to have confirmation from my security officer that he had a need to know.

He stormed out, came back with my security officer. He explained. The security dude asked if the officer had it right. I said “yep.” The security dude then ripped the officer a new one.

The army officer had to have a need to know. He did. But I don’t get to make that determination. Only authorized people can do that. One such authorized person was my security officer.

Above Confidential is Secret, above that is Top Secret, and above that is Top Secret, Sensitive Compartmented Information.

To be granted any clearance, you need to be vetted. That requires you to fill out several invasive forms. These are then used to start a background check. How through these background checks are depends on the level of clearance being requested.

Your clearance doesn’t belong to you. It belongs to the entity that wants you to have a clearance. That entity must have a clearance. The entity requests that you be granted a clearance. Your entity then gets the paperwork from you which is then handed over to the investigators.

When you are granted your clearance, your entity will be informed. Your entity will have a security officer at the least and may have an entire office dedicated to handling clearances.

My entity was Cray Research. Once their security office was informed I had received my clearance, they informed the security office where I was employed. At that point, I had a clearance. And nobody would have given me a bit of classified information.

The people I worked directly with were told I had a clearance by their security office. The people I worked indirectly with I told. They then verified with their security office.

When I left that government installation, my clearance still existed. It was “owned” by Cray Research. My clearance didn’t mean anything because I wasn’t at a government installation.

When I went to different government locations, where I had a need to know, my security people sent the proper security magic to the locations where I was going. This allowed me to see what I had a need to see.

When I left Cray Research, my clearance still existed. Cray Research no longer owned it. Somebody in the government had control over it.

When I joined a different company, they put in a request for my clearance, and it was granted because it already existed.

Ok. Done with me.

What this means is that the people that DOGE is using could have had clearances because of other projects they had worked. When they started working for DOGE, their clearances were either transferred to DOGE or their entity informed DOGE of what clearances they had.

So this nice young man of 20 or so wants to inspect a computer system at CFPB. The administration says, “Hell no, you don’t have the clearances to see our systems because you might see our data.”

The young man calls his security office and has them transmit the clearances to CFPB security. “Call your security office, they will verify that I have the clearances to access the systems and the data.”

The administrator, having lost the first battle, says, “You don’t have a need to know.”

The young man presents the orders he has been given him by the boss of CFPB and that is satisfied, after verification.

That’s how clearances work.

Now, the current NPC talking point is that this young man is unelected, reports to Elon, and as such will access data he shouldn’t and then use it or leak it.

When you hear this, you should translate it to: “Are you saying the FBI and other agencies can’t do a background check? That this young man with clearances shouldn’t have them? What agency or person are you accusing of granting a clearance to somebody that can’t be trusted?”

Yeah, I’ve about had it with Democratic(NPC) talking points.

This is the section of the 14th Amendment which says that the children of former slaves and former slaves are citizens of the United States.

This needed to be done because before the slaves being freed, they were not citizens. The defeated southern states were investigating how to disenfranchise former slaves.

It was ratified on July 9, 1868.

Text and this Nation’s historical tradition of regulation

When evaluating a modern regulation, when the Constitutions plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.

In this case, “Is the child of an illegal alien born in the United States a United States citizen?”

The plain text of the Constitution clearly covers the individual’s conduct, becoming or acting as a US Citizen.

Since the plain text covers the conduct, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of regulation.

What is the regulation?

This is fairly simple. You are a US Citizen if your mother or father is a US Citizen. You are a US Citizen if your mother or father is a lawful permanent resident when you are born.

Being whelped on US grounds does not make you a citizen.

Is this interpretation consistent with giving former slaves citizenship?

Yes. Former slaves were naturalized (I Believe). So they were citizens.

Their children were born to citizens or lawful permanent residents.

What does “and subject to the jurisdiction thereof” mean?

We know what it meant in 1898. In March of that year, the Supreme Court issued their opinion in —Bessent v. Dellinger, 2025 604 U.S.. This is barely 30 years from the ratification of the Amendment.

Wong Kim Ark was the child of Chinese parents. Those parents were NOT naturalized and were subjects of the Emperor of China.

When Wong Kim was 17 years old, he took a trip to China. He returned with no issues. He claimed to be a US Citizen.

In 1894, four years later, he took another trip to China. This time, when he returned, he was not allowed to disembark. Instead, he was detained.

The District Court for the Northern District of California found that Wong Kim Ark was a US citizen by virtue of his birth and had him released. The government appealed to the Supreme Court.

This is preciously the question the new EO brings forth.

That’s old time speak for “plain text” and “historical tradition of regulation”.

So a child must be born not only within the country, but within the “ligeance” of the country. If they are born of an occupying entity, then they are citizens of the occupying entity, not the country within which they are born.

When everything is said, the Supreme Court in 1898 found that if you were born of parents that were here legally, you were an American citizen.

Is that the end?

Not really, the issues are that of an invading force, or people that are here illegally. Do they have the same birth right as a child born of people here legally?

There is a strong argument to be made that illegal aliens do not gift their whelp with American citizenship merely by pushing them out while on US soil.

It is clear that if they were members of an invading army, their children would not be American citizens.

Standing

Mr. Wong Kim Ark was a person who claimed to be a US Citizen by birth. When the state refused him entrance to the United States, he was able to file a case arguing that he was a citizen and should be granted internee.

The state argued against him.

This means that Wong Kim had standing. The case was about him.

Now consider the current situation. Jose sneaks across the border with his wife Maria. Maria got knocked up by somebody, either north or south of the border, it doesn’t matter.

Maria and Jose show up at the hospital emergency room, where they are given “free” health care because they have no intention of paying for it.

Maria whelps Jose Jr.

Jose and Maria are handed a birth certificate for Junior. They are told they are the proud parents of an American Citizen.

You’re in the next bed and you hear that another illegal has their anchor baby.

You file suit claiming that the Fourteenth Amendment doesn’t grant citizenship to foreign invaders.

The case is dismissed. You have no standing.

This is correct.

Who has standing?

The child, the parents, and the state.

If the state isn’t challenging the granting of citizenship and the parents are not, and the child isn’t, then there is no suit.

What does the EO change?

The EO says that if you are not here legally, whelping a child here doesn’t grant that child citizenship.

If Jose wants Junior to be a citizen, he needs to file suit. The state can now argue against birthright for invaders.

If Jose loses, he better stop. If he appeals, then the circuit court will hear the case. And the state will again argue invaders don’t get to make citizens.

If the loser of that case appeals again, it will be before the Supreme Court.

At which point we will have our second opinion on birthright citizenship being granted by the 14th. It might not turn out the way that the left thinks it should.

First, Mark Smith is a lawyer. I am not. Much of the “inside baseball” I’ve learned from listening to Mark and others like him on YouTube.

His analysis of many cases is spot on. Many times his analysis guides mine. I enjoy listening to him. To put it differently, I enjoy him attempting to “make [me] the smartest person in the room.”

One of his early videos was describing how the Roberts court handles grants of cert.

As he explains it, once a case gets to the point where it will be considered for cert, it will be distributed for conference. This means that it will be discussed by the Justices at a particular conference. Those conferences normally happen on Friday.

The court will then issue their “Orders” on the following Monday. Well, that is the day it is normally published.

The orders list consists of mostly of one or two lines, case such and such petition for something is denied. There are long lists of denied, a shorter list of granted.

In addition to the short statements from the Court as a whole, there will sometimes be statements by the Justices regarding denial of cert in a case. These can be considered dissenting opinions.

If a case has been conferenced, there are three options for the case going forward. The case can be denied cert. The case can be granted cert. The case can be relisted.

If a case is relisted. Which means to be distributed for conference the next week. That will not be in the orders. It will show up in the case docket later in the day.

If a case is not listed in the orders, after it has been conferenced, it can mean one of two things (IANAL), it can mean that the case is relisted, and we’ll read it in the docket later in the day, OR it means that cert was granted but one or more Justices needs time to write a statement.

As I said, the orders are normally given on the Monday following the conference.

Occasionally, there will be a misc. orders issued on the Friday of the conference. These are grants of cert.

Why is this important in tea-leaf reading?

The Supreme Court has a term that runs from the first of October to the end of June the next year.

In general, the Court will issue opinions in the same term as they hear oral arguments on the case.

Oral arguments must take place before the close of the term, while leaving the Justices enough time to write their opinion. Consider that the Heller opinion was nearly 157 pages in length, 60 lines per page, 10 words per line.

That makes the Heller opinion around 90,000 words in length. It was written by multiple justices, but still, that is two Novels.

It is 90 long Chris articles. Ally, our writer, will write 3700 words a day when creating the first draft. She will spend a month writing a 50,000 plus word book. Then she starts editing.

This means that if they expect it to be a long opinion, they need to have 45 or more days to write it. That 45 is an S.W.A.G by me.

This puts a fairly hard deadline for oral arguments.

From the time a case is granted certiorari, the clock is running. The petitioners have 45 days to file their brief. The respondents have 30 days to file their brief. The Petitioners have 15 days to file their reply. A total of 90 days.

To give the justices 45 days to ponder and write, oral arguments must happen on or before May 16, 2025.

Putting a more concrete number on this, it took 118 days from oral arguments in McDonald to the date the Court issued their opinion.

This implies my guess of 45 days might be a bit short. Bruen was heard in November and the opinion was issued on June 23rd.

Regardless, if we are going to have an opinion this term, we are running out of time. To hit the May 16th deadline, the Court must grant cert before February 15th.

120 days was this last Thursday, January 16th.

Wolf?

Mark explained to us that we wanted three cases conferenced on the 10th of January. This happened. Good for Mark.

He explained that we would like to see cert granted January 13th, but we should expect the cases to be relisted.

He posted a video on the 10th or 11th telling us that a miscellaneous order had granted cert in three cases on the 10th. This was bad news for the Second Amendment. These cases were being given a jump start on getting things done before it was too late for this term.

On Monday afternoon, two cases were relisted. The case that was in an interlocutory state was denied cert. There was another Second Amendment case that dealing with taxes on firearms that was also denied cert.

This was precisely what Mark had predicted.

On the 17th, our two Second Amendment cases were conferenced for the second time. In the evening, a miscellaneous order granting cert in four cases was issued.

Mark posted another video telling us this was bad news for our Second Amendment cases.

I’m sticking with Mark V1. So far, the situation is progressing as he predicted. This matches my predictions (IANAL).

I refuse to panic or even worry over the weekend. Monday morning, I will read the orders. I expect to see nothing regarding Snope and Ocean State Tactical. Later in the evening, I will check the docket for those two cases, and I expect to find them relisted.

This is on track. We are doing well.

January 27th is the day we need to be paying attention to. That will be the day orders are issued for the conference held on the 24th. If the cases are relisted for a fourth time, I’ll be nervous.

Just remember, it isn’t over until the fat lady sings.

Ally came to me the other day upset about the TikTok case. One of her issues was that the AP was reporting that they couldn’t report more because it was “sealed”.

I found this to be unusual and went to the source to find out what is going on. What I found was somewhat different.

Ally pointed out that what I sent her, the docket, wasn’t something she understood.

This is a non lawyer’s take on reading dockets.

What is “The Docket”?

The docket is a record of a case. It contains the identifying information about the case as well as providing information on what court, panel, or judges will be hearing the case. It is relatively brief.

The biggest part is the “Proceedings and Orders”.

The Header

The header identifies the case.  In addition, it helps track the case back in history as it moved through different courts.

The title is the parties to the suit. The short title would be TikTok v. Garland. The date the case was docketed with the Supreme Court was December 18, 2024. The case comes from the D.C. Circuit Court. In the circuit court it had a case number of 24-1113.

The first entry tells an interesting story. The first is that this case was submitted to the emergency docket, sometimes called the shadow docket.

When a case is placed on the emergency docket, it is assigned to one justice. Each justice is assigned a set of lower courts that they “supervise.” In this case, the D.C. Circuit Court is supervised by Chief Justice John Roberts.

The party petitioners are TikTok and ByteDance. They have “filed a motion” which is legal speak for “asked for something.” What they have asked for is an injunction against the enforcement of <q>Pub. L. No. 118-50, div. H (2024)</q>. This is the “Protecting Americans from Foreign Adversary Controlled Applications.”

In other words, they want the courts to stop the banning of TikTok.

To pull the information about motion, I read the “Main Document”. On the website, this is a link to the PDF of the document.

Because this case was put on the Emergency Docket, they are not asking the court to decide on the merits of the case, instead they are asking for an injunction until the Supreme Court has made their final decision regarding the ban.

Entry two says that they have also requested that the court hear the case, on its merits.

The next three entries are briefs by different groups of people called “Friends of the Court”, or “amicus curiae”. These are not parties of the case but instead are people who want to stick their two-cents in.

These briefs must be filed by a lawyer who is a member of the Supreme Court bar. In some situations, the people filing amicus briefs must get permission first.

What is a brief?

Simply put, it is a written argument. The person or group that files the brief feels that they have something important to say that might change the Court’s mind.

These briefs are all going to be arguing that the Supreme Court do something.

The respondents will often not argue at this point. To argue that the Court not hear the case is to make the case more important. Since the Court prefers to take cases that are important in the broad scheme of things, arguing that the Court not hear a case is arguing for the case to be heard.

On December 18th, the application, as 24A587 on the emergency docket, was referred to the Court.

This is the Court’s normal Wednesday conference.

The Justice discuss the cases which have been referred to them and decide as a group what they are going to do.

There is a deadline of January 19th for them to issue an order or opinion.

Things Happen

The petition is granted on the 18th. This means that the case went from not existing within the Supreme Court’s system to being granted cert in 2 days.

This is what “Emergency Docket” means. It has to happen now.

Now this particular case is on an expedited track. The Justices have given a word limit on the briefs. We will see later that there are “Certificate of Word Count” attached to many filings, stating they are within the limits set by the Court.

The time is also shortened. All the primary briefs are to be filed by December 27th. This is only 9 days after the granting of cert.

The court also says when oral arguments are happening.

The court also consolidated two cases. This is why we went from 24A587 to 24-656. The two original dockets were 24A587 and 24A656.

While the court said that oral arguments were on the 10th of January in their order. The official order is “SET FOR ARGUMENT at 10 a.m., Friday, January 10, 2025.”

Things Start Moving

We start to see the Amicus briefs start to arrive. They have until 1700 the 27th to get their briefs in.

We can tell that the people interested in this case have already prepared their briefs and are submitting them within a few days.

Our first entry is an order from the clerk of the court. They are telling the filer that they didn’t do it right. The submitted their brief with a word count, but the proof of service was incomplete.

The clerk will not accept the brief until the deficiencies are resolved.

Many Briefings and Orders

Outside the amici briefs, we have a “request”, which is Supreme Court speak for “order”, to the circuit court for a complete record. There is an “appendix” which is the compendium of all the briefs filed in the lower court(s?).

While the cases are combined, both petitioners request to argue separately. It will happen on the same day, one after another.

When reading these entries, the notation “(Distributed)” means that the filing has been given to the justices.

Many briefs are filed. The justices met and on the 31st granted the petitioners motion to argue separately.

All the replies were submitted on time.

One of the amici managed to mess things up so badly that they didn’t get their homework in on time. They asked the Court for an exception, the Court said, “no”.

Interesting Entry

This is the record of the cases before the D.C. Circuit Court. The records came in to parts. One part is open to the public, they other is sealed.

Sealed information can include things like financial details, personal identifying information (think SSN), or the identity of undercover or human sources. It can also include methods that the state doesn’t want public.

The Supreme Court can decide to unseal those records, but it isn’t going to happen. There is no need.

The Oral Arguments

The quick way to find out what happened on the 10th is to read the transcript.

If you want to spend 2 hours listening, you can listen to the oral arguments

What’s going to happen?

On the 17th, the Court has its next conference. They will discuss the cases referred to them, the cases distributed to them seeking cert, and cases where oral arguments have been heard.

They will come to a conclusion.

Once they decide, they need to write the opinion. If any justices are dissenting, they have to write their dissent.

Justices can write concurrences as well. This is when the justice agree with the opinion, but not the reasoning of the majority opinion.

Once all the opinions are finished, the opinion of the court will be released.

If the justices know that it will take longer to write the opinions than they have, they can issue an injunction. The injunction will put everything on pause until the Court can issue their opinion.

Where to From Here?

The path from here is working backwards. Given the circuit court and the docket number for that court, you can look up the docket on the Circuit Court’s website.

Of course, this doesn’t always work. To answer this, we use Court Listener to look up the case at the circuit court. The link I’ve given takes you to this case.

Within the circuit court docket, we find the same type of docket. Part of what we will find is a reference to the district court case.

All the oral arguments at the circuit level are available on the web. It can be difficult to find. Court Listener is your friend there as well.

Go have some fun reading documents.

David Snope, et al., Petitioners

There are places where I feel sorry for The People. People in California seem to have gotten what they wanted. The people of Illinois, not so much.

The lower court of the State recently issued an order in favor of The People, but not of the Second Amendment.

This was a win. The people of Cook County no longer have to pay a tax on guns and ammo. Well, that is what the state supreme court said, and the lower court, but not Cook County. They are continuing to collect taxes.

So how is this a win?

It is a win because the plaintiffs, the good guys from Guns Save Life, got what they wanted. The courts have ruled that the county may not legally collect the tax. For perspective, they filed their lawsuit in 2015, the case was closed on January 10th, 2025.

The state was actually arguing that the supreme court of Illinois had ordered the case dismissed because it was “moot”, while the county is still collecting taxes.

Why is that?

Because the case was filed as both an unfair tax and a Second Amendment challenge. The “unfair” was a challenge under the Illinois “uniformity act”.

Well, the lower court decided that it was absolutely ok to tax guns and ammo. I don’t think the judge ever read —Bessent v. Dellinger, 2025 604 U.S. where the Supreme Court found that taxing ink used by a newspaper was a violation of the First Amendment.

The lower court also found that the taxes were uniform enough.

This was appealed. On appeals, the intermediate court agreed with the lower court. This was appealed to the Illinois supreme court.

There, the tables turned in favor of the good guys.

But not in the way you might think.

The court waved their hand at the Second Amendment challenge, likely because they had read the above cited case. They said, “We don’t need to consider the Second Amendment issue because this tax doesn’t withstand the uniformity challenge.”

The supreme court then continued with instructions on how the state (Cook County) could change their low to make it safe under the uniformity clause.

The court issued an order to the lower court “for entry of summary judgement in favor of the plaintiffs.”

This should have been a done deal, in thirty minutes. Instead, the lower court sat on the damn case for four more years. This gave the state time to modify the tax law and to claim the issue was moot.

Finally, the lower court did as instructed and entered summary judgement in favor of the plaintiffs, the good guys.

The court addressed the Second Amendment challenge as such: the supreme court didn’t bother to hear anything about the Second Amendment, it is moot in this situation.

Thus, The People won, but in winning did not get a Second Amendment win.

Oh, Cook County is refusing to stop collecting the tax.
LAWLESS: Despite court rulings striking down their Gun & Ammo Tax, Cook County says they’ll continue collections

John of www.GunsSaveLife.com was kind enough to post a link back to us and to quote The Game is On! SCOTUS update

He expressed a bit of skepticism.

John is skeptical because nobody knows what is going to happen in Supreme Court conferences.
It is all “reading the tea leaves”.

The black box which is Supreme Court conferences has visible inputs. Status of the case, briefings on the case, circuit split, time after the last Supreme Court opinion on the subject and a few others.

For output, we have “Denied”, “Denied with statement”, “Granted”, “relisted” and “rescheduled”.

Why the justices decide on which output is a guess. Some people are good at those guesses. Mark Smith has a good record. I don’t have a record to stand on. We know historically that “rescheduling” happens when the justices want to see multiple cases at the same time. We know that under Roberts, cases that are relisted are almost always granted cert. and those that are not have some procedural issue with them, not merits issues.

Cases that are denied Cert generally have nothing said about them. Think of it as spending 30 minutes trying to convince your parents to do something, and at the end of that they say “no”. That’s how most denial of cert goes. Nobody cares when cert is granted. It is going to happen.

When one or more justices feels strongly that cert should have been granted, they will write a statement to go along with the order list. Occasionally, a justice will write a statement explaining to the petitioner why cert was denied so that they can address the issue.

We saw several statements from Justice Thomas on why they were not granting cert on Second Amendment challenges that were in an interlocutory state.