The Loaded Weapon
Our Oral Argument with the Court of Appeal is complete. You can watch a video clip here.
The good news is the Justices appear poised to reject Newsom’s request to dismiss the case. From the beginning, his strategy has been to get out of the lawsuit on a “mootness” technicality to avoid any accountability for his past actions and any restraint on his future actions.
Yet the Presiding Justice quickly swatted away the mootness issue, asking Newsom’s attorney to proceed to the merits. Just as significantly, the Presiding Justice acknowledged this case is about not just one executive order but the “generic question” of Newsom’s one-man rule.
It thus appears likely the court will issue the first precedent-setting decision in California history on the limits of a Governor’s emergency powers. But that doesn’t necessarily mean it will go our way. In either event, the California Supreme Court will have the last word.
People watching have commented that the three Justices interrupted with a lot of questions. That’s pretty standard and generally a good thing – it lets you speak to what they want to hear – but with the virtual format it did make things choppy.
The hearing was also short. After hundreds of pages of briefing, James and I only got 15 minutes between the two of us, including all the interruptions. That meant most of what I had to say went unsaid, including a quote I wanted to close with from Justice Robert Jackson.
In dissenting from the infamous Korematsu decision, Justice Jackson wrote that for a court to uphold an unconstitutional order is “a far more subtle blow to liberty than the promulgation of the order itself.” That’s because “the Court for all time has validated the principle,” and “the principle then lies about like a loaded weapon ready for the hand of any authority.”
We are asking the Court to disarm Gavin Newsom, to be sure; after all, he’s wreaked havoc on our society unlike any governor in history. But we are also asking not to leave a weapon locked and loaded for use in all future “emergencies.” The extraordinary abuses of this past year must never be repeated.
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