Will Baude

In our world, it seems more like the court makes it up as it goes along based on whether it likes these claims.

Yeah, although, again, there are honorable exceptions.

So Justice Thomas, who loves to criticize the court for making things up and not following the statutes, has said, gosh, qualified immunity seems to be a place where we made up something and stopped following the statute.

We should probably do something about that.

Yeah, no, I will say that does mean that it's ultimately the taxpayers of Vermont who have to pay for this.

So maybe the court is just thinking about your average farmer.

So it does dance around that.

It says, you know, is it even possible for a lower court decision to clearly establish law or can that only come from the Supreme Court?

This is a very odd thing because the Supreme Court has squarely held that a lower court decision can establish clearly established law in a case Camerata versus Green, I think maybe from when you clerked.

A little bit after.

The court has said that it can happen.

And then after that, the court has just said, well, we're not sure whether it can.

So it's a funny way to undermine precedent is you just hold something.

And then the next year you're like, I don't know.

Do we ever hold that?

I don't remember.

And you sort of hope that over time that will create enough fog that the decision goes away.

Yeah, this is a nice way to reinforce the principle that most of the time the Supreme Court is not a court of error correction.

So they had previously taken this case because there was a legal issue and disagreement about various rules for when you could get access to testing.

They resolved the legal issue they felt was important.