My column discusses the contortions of language and common sense required by the dissent in Mullin v. Al Otro Lado. Here, I’ll add another angle. In addition to the main dissent, Justice Ketanji Brown Jackson’s lone dissent (which went so far that Sonia Sotomayor and Elena Kagan wouldn’t join it) argued that the case was moot because the Biden administration had withdrawn the Obama-era “metering” practice — which was the subject of the case in 2021 after the first District Court ruled against it — and the Trump administration merely told the Court that it wanted the option to reinstate it.
There are three notable things going on here. First, Jackson inadvertently shone a light on yet another example of the Biden administration’s habit of collusion with left-wing groups that sued it. Even though the policy was withdrawn after the district court granted summary judgment but before it entered an injunction, the Biden DOJ didn’t object to the court’s then entering the order. So, if the case was already moot, the Biden DOJ was colluding in getting an order against it for the purpose of binding its successors. Then, only on appeal did Biden officials argue that the case might be moot for the purposes of appeal.
Second and related, if Jackson is right, it’s not just the Supreme Court but also the district court and the Ninth Circuit that ruled without jurisdiction. Jackson at least is candid enough to admit this.
Third, and somewhat less candid, Jackson wrote her opinion to lead casual readers to believe that the Trump administration was talking out of both sides of its mouth: “Odder still is the fact that, before the Ninth Circuit, the Government suggested that its rescission of the guidance created jurisdictional problems. . . . Before us, it asserted the opposite. . . . This shift in positions calls for consideration of whether the Government’s arguments are sincere and reasonable, rather than a ploy to obtain this Court’s review of a now-defunct policy.” But the prior brief was filed in the Ninth Circuit in 2024 — by the Biden administration. The government changed its position because new management had a different view of the case. That may reflect a general trend away from older norms of consistent Justice Department positions across presidential administrations, but it’s not insincere; it’s different people having different views.