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. That doesn’t necessarily mean it will go our way, of course. Regardless of the outcome, 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 address 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 from Justice Robert Jackson.
In dissenting from the infamous Korematsu decision, Justice Jackson wrote that if a court upholds an unconstitutional order, it “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 unlike any governor in history. But it’s perhaps even more important that we don’t let him leave behind an anti-constitutional weapon, locked and loaded for use in any future “emergency.”
That, ultimately, is our message to the Court: the extraordinary abuses of this past year must never be repeated.
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