Friday, July 07, 2017

Judge Watson is Either Definitely Wrong or Possibly Wrong

by Michael Dorf

Judge Watson's order declining to grant Hawaii's motion for clarification that "close relatives" includes grandparents (contrary to the executive branch interpretation of the SCOTUS decision in the Travel Ban case) rests on the view that the Supreme Court issued the underlying order, so it is up to the Supreme Court to clarify it. Insofar as Judge Watson meant that he, as a lower court judge, has no business clarifying unclear language by the Supreme Court, that's plainly wrong. Much of what lower court judges do in deciding questions of law is to clarify the meaning of decisions of higher courts. Ilya Somin, writing on the Volokh Conspiracy, is clearly right in criticizing Judge Watson on this point.

However, there is another, better way to read the order by Judge Watson. He is not saying that he lacks power to clarify the SCOTUS language. He is saying instead that while the case is before the Supreme Court, a motion for clarification of a Supreme Court order--as opposed to his own order--should go to the SCOTUS. He could still be wrong about that, and Hawaii has appealed to the Ninth Circuit. But the rules and standards governing what a lower court may do with respect to a case that is on appeal are sufficiently complicated, that his ruling in this regard is not crazy. Possibly wrong, mind you. But not crazy.