"INSTEAD OF GETTING TO A TAKEOVER AT LAST, ...

WE'VE BEEN GOING ALL ALONG."

There have been comments made today that radicalized judges are taking over, in light of the leaked draft opinion overruling Roe v. Wade.

An examination of decisions from just the last 7 months shows that they already have.  In every one of these cases, judges appointed in the old regime have ruled against the current Administration.

The decision of the federal judge in Tampa is well-known.  She struck down the CDC's mandate to wear masks in public transit including airplanes.  She was appointed in the old regime.  Here is the Complaint filed in that case:    Download Health Freedom Defense Fund v. Biden Doc. 1 Complaint filed 07.12.21 (M.D. Fla. No. 8.21.cv.01693).

You may recall other decisions that involved the pandemic in which federal judges ruled against the Biden Administration and public health policies intended to get the pandemic under control.  Recall as well that there were no comparable public health policies, and no visible control of the pandemic, under the previous regime.  So it would be a big deal for Biden to control the pandemic.

In another one of those cases, this one in Missouri, a federal judge ruled against the Biden Administration's vaccine mandate for health care workers.  He was appointed in the old regime.

The case is Missouri v. Biden and it was filed in the Eastern District of Missouri.  The Eighth Circuit Court of Appeals' panel unanimously vacated that stay and remanded on April 11, 2022 in 8th Cir. Case No. 21-3725.  None of the three judges on the Eighth Circuit panel in that case were appointed during the old regime.

 In another case, this one from November of last year, BST Holdings, LLC v. OSHA, the health care measures during the pandemic were again involved.  In that case, a panel of the Fifth Circuit Court of Appeals stopped OSHA's vaccination mandate that applied to employers with over 100 employees, which would have required such employers either to tell their employees to be vaccinated before they came to the job, or to tell their employees to take weekly tests and wear a mask when they came to the workplace.

There were 3 judges on the Fifth Circuit panel who ruled against the Biden Administration.  Two of them were appointed in the old regime, by the former guy.  The third was appointed way back by President Ronald Reagan and she has attempted to garner respect ever since.  The case was BST Holdings, LLC v. OSHA, No. 21-60845 (5th Cir. Nov. 12, 2021).

But the BST Holdings case did not end there.  It was vacuumed up into a Multi-District Litigation.  This was coming even when the Fifth Circuit panel was getting ready to rule, but they ruled anyway even though they would soon have no jurisdiction to rule and, moreover, might be reversed (which they were).

Over the years, I have learned to take note when people do things they do not have to do, but they do them anyway.

You may also recall that at the time when BST Holdings was being transferred to the MDL, where the Sixth Circuit -- not the Fifth -- was given the task of presiding over underlying rulings, the Sixth Circuit dissolved both the District Judge's stay and the Fifth Circuit's stay of OSHA's workplace mandate.  The decision was 2-to-1.  The dissenting judge who ruled against the Biden Administration was appointed in the old regime.  The other 2 judges were appointed by Democratic Presidents.

On appeal to the U.S. Supreme Court, this time it was the Sixth Circuit panel that was reversed.  That ruling came on the so-called "shadow docket" (no briefs, no oral arguments) in January of this year, 6 Justices ruling against them, in Download Nat'l Fed. Indep. Bus. v. Dep't of Labor OSHA (Jan. 13 2022).  Of the 6, three were appointed in the old regime.

At this point, 11 judges ruled against the Biden Administration in these cases.  Eight of the judges who ruled against the Biden Administration in these cases were appointed in the old regime.

Every single judge appointed in the old regime ruled against the Biden Administration.  All of them.  100%.  What were the odds of 100% of eight federal judges ruling the same way whenever the authority of the Biden Administration was at issue in different cases?

Also in January, 2022, another judge ruled against the Biden Administration.  This ruling came from the Southern District of Texas in a case involving President Biden's authority to issue an Executive Order "which mandates COVID-19 vaccination for all executive branch employees, subject to medical and religious exceptions."  That is a quotation from the opinion of the Fifth Circuit, which vacated the Texas judge's ruling and remanded on April 7, 2022, in Feds for Med. Freedom v. Biden, 30 F.4th 503 (5th Cir. 2022).

That was a 2-to-1 decision, and if you guessed that the 2 judges in the majority on the panel were appointed by Democratic Presidents, you are correct.  The 1 dissenter was appointed by a Republican President long ago and not during the old regime.

To rephrase an insight from an Emily Dickinson poem:  Instead of getting to a takeover at last, we've been going all along.  To add an insight from May, 2022:  We may get there, there is no doubt that we may, or at least there should not be any doubt at this point.  But the end is by no means certain.

NEXT:  THE  (UNDERSTANDABLY) OVERLOOKED  PROPOSAL IN THE LEAKED SUPREME COURT OPINION TO OVERTURN Roe v. Wade AND Planned Parenthood v. Casey.

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