InfoWars on the legal front

An extremely long post by Steve Vladek includes him defending himself against gross errors (at best) or lies (more likely) leveled at him by a prominent MAGA operative, Carrie Severino, President of the authoritarian radical right Judicial Crisis Network. Vladek is a prominent legal scholar and critic of DJT and MAGA generally. These are some parts of Vladek's post that deal with how Severino attacked and misrepresented him:

I wanted to use this week’s issue to address a piece published by Carrie Severino in the National Review on Friday—titled “The Left’s Lies About the Fifth Circuit’s Reversal Rate.” I’m not usually inclined to engage with Severino (or the NR more generally). But given that I’m one of the people Severino accuses of lying, it seemed worth summarizing exactly what her claim is and then explaining, in detail, why she both (1) completely misstates what I’ve previously written; and (2) makes some pretty egregious data-driven mistakes of her own. The former may help, if nothing else, to correct the record; the latter may be useful more generally because it underscores the dangers of superficial attempts to use data when trying to describe the Supreme Court’s output.

I wrote a piece in July for The Atlantic, titled “The Fifth Circuit Won By Losing,” which attempted to document both how bad a term the Fifth Circuit had at the Court and how much it nevertheless succeeded—both in the three cases in which it was affirmed (each of which came in ideologically charged disputes) and, more generally, in moving the Overton Window with respect to the kinds of arguments that are now viable. Although the piece is behind a paywall, here’s the central claim it made:

But for as bad a term as the Fifth Circuit would appear to have had, it still succeeded in shoving American law far to the right. First, even when the Fifth Circuit lost, it usually picked up at least one vote (and as many as three) from the justices, validating the non-frivolousness, even if not the correctness, of its extremist reasoning. Second, the losses have the effect of making the most radical Supreme Court in our lifetime appear to be more moderate than it in fact is—with the Court’s defenders seizing upon some of the reversals of the Fifth Circuit as proof that, despite a rash of controversial, ideologically divided rulings in other cases on everything from January 6 to environmental law to homelessness, the Court really is “surprising” in its moderation. Third, and most important, the Supreme Court still affirmed three of the Fifth Circuit’s outlier rulings—all in cases in which the three more liberal justices dissented. The Fifth Circuit lost a lot—and somehow it still won.

Enter, Carrie Severino, President of the “Judicial Crisis Network.” .... As she wrote, “In its chastisement of the Fifth Circuit, the Left willfully ignores the broader universe of appeals to the high court, and presents a seriously distorted picture in the process.” .... [S]he argues, anyone who criticizes the Fifth Circuit but doesn’t mention its “wins” or criticize these other courts (“commentators who do not feign scholarly objectivity”) is engaged in a double standard.

5th Circuit = TX, LA, MS

To limit the length of this post, here is what Severino accused Vladek of doing, and his response regarding radical federal appeals court decisions coming out of the hyper-radical 5th Circuit in the last term:

• First, Severino claimed that Vladek said the 5th Circuit has the highest reversal rate by the USSC, which is false. What Vladek said was the 5th Circuit had most USSC reversals of any other circuit, but with three affirmations. But of the three cases that the USSC did not reverse, they where radical right and pushed the legal Overton Window far to the right, which was the main point of what Vladek is arguing. Mistake or lie by Severino? You decide.

• Second, Severino treats all USSC cases as equal, a point that Vladek strongly rejects. Those three 5th Cir. cases the USSC upheld were major in their impact and reach, not medium or small. He points out that the USSC picks the cases it wants to hear and those vary widely in their legal impact. In essence what the USSC is doing is allowing authoritarian radical right cases to be filed in the 5th Cir. and letting that appeals court spew out radical right decisions that the USSC uses to convert the rule of law into radical right authoritarianism. It does not matter that most of the 5th Cir. cases get reversed. The few that are upheld is a major driver of the toxic radicalization of American law. So, is that sloppy analysis by Severino or good analysis? You decide. (IMHO, this is a superb propaganda tactic to obfuscate what the radical right is doing to American law)

• Finally, and this one is wonky (sorry), Vladek argues that Severino cherry picked a USSC emergency ruling to make the 5th Cir. look even less influential than it really is. Again, that reasoning by Severino rests on the flawed analysis that all cases are equally important. Vladek points out that if one includes all the emergency USSC decisions from the last court term, “it makes the Fifth Circuit look even worse.” 

Moving the window to the right or left

makes the radical and unthinkable

seem more acceptable and sensible

Normalizing radical and unthinkable concepts

makes them feel like something they are not

Vladek concludes his article with this:

I don’t know if Severino just didn’t read what she was purporting to criticize, or if she did. But it seems like we all ought to be more careful before we accuse anyone of “lying” about something related to the Supreme Court—especially when our accusations are based upon descriptively and methodologically flawed accounts of our own.

Q: Is a USSC decision about, e.g., a federal trademark infringement case by Jack Daniel's* as important as the Dobbs decision that overturned Roe v. Wade and eliminated the national right to an abortion, i.e., are all USSC cases about equally important?

* The subject matter of Jack Daniel’s v. VIP Products—a squeaky dog toy (Bad Spaniels) that resembles the iconic JD's whisky bottle and label, but with scatological puns in place of the original language on the whiskey bottle.