Jon,

1. The point of my post is that it was inconsistent to critique the mischief of courts resorting to legislative history to get around statutory commands when that’s exactly what the Eleventh Circuit itself did in this case. I take it you agree with that as you seem to have dropped the subject that prompted me to respond in the first place.

2. The fact that equitable authority is malleable doesn’t mean its use is improper. On a life-and-death issue in connection with a matter as to which congress directed a de novo review, it would have been appropriate to use this equiatable authority to maintain the status quo. If it turned out after a reasonable time for filing claims that there was no cognizable federal right, then that would have been the end of it. But the courts, like the congress, belong to the American people, not the Schindlers. Regardless of whether the Schindlers can prevail (a matter on which requiring of them a pre-demonstration that they were likely to prevail is certainly reasonable), the public has an independent interest, when its congress gives its courts jurisdiction and direction to conduct a plenary review of a matter, to have that matter fully reviewed in the courts absent third-party interference, unless and until someone demonstrates that the statute providing jurisdiction and direction is unconstitutional.

3. I am not shrinking from the substantive due process charge. I readily cop to it. I haven’t been avoiding you on it. I think it’s an important question and deserves as thoughtful a response as I can give it, and I’m working on that. Admittedly, the Supremes have just knocked the wind out of my sails a bit, so I’m less than inspired to keep plugging away on this. But I’ll try to buck up.