Do the internal Supreme Court memos concerning the stay of the Clean Power Plan reveal judicial hypocrisy or a failure of the justices to apply the proper standard of review? Many commentators seem to think so. Many also seem to think the memos (and those by the Chief Justice in particular) contain errors or omissions that were not commented upon by the other justices.
At Divided Argument, William Baude and Richard Re respond to the claims that the Court failed to adequately or consistently account for irreparable injury to the government and did not apply the appropriate standard of review. On the former point thy write:
The problem with criticisms like these is that they conflate two different legal doctrines. The Court has stated a rule that the government faces irreparable injury when its policies are blocked. But that is a rule that applies to the moving party. That is, when the government seeks to have a lower court order lifted, it is almost axiomatic that the lower court order injures the government, so the Court focuses on other factors, such as the merits of the case.
This rule had no application in the Clean Power Plan case because the Obama Administration was not the moving party. Instead, the challengers to Clean Power Plan were the moving party: they were the ones seeking a stay.
