Civil and Appellate Procedure Imbroglio

The United States Supreme Court, via.

I wrote my last entry a few days before I posted it, as is my general habit. Thus, the post was written a few days before legal chaos was about to break loose. We live in strange times, lawyers especially. In my current role, there are restrictions on political activity, political speech, and practicing law, restrictions that I never thought would chafe as much as they do. I was having trouble sleeping, had fitful dreams about court orders not being enforced. Inspiration, blogging-wise, faded, and has been extremely slow in returning.

Without expressing an opinion regarding either electoral politics or the legal merits of issues in active litigation, my thoughts in November about the importance and the near-sacred duty of our judicial institutions now appear... perhaps remarkably prescient. In that general vein, below are several links that I find particularly educational in laying out some of the current issues. Certain links are, it cannot be denied, partisan in their implications, but are offered here only for educational and informational purposes: 

• "The Quiet Grandeur of the Courts," a New York Times Editorial Board piece, is an elegant explanation of one of the underlying issues in the background of it all. This other opinion piece, by New York Times columnist Charles Blow, is a bit more fiery, but in the same vein. 
• The Ninth Circuit has posted filed documents and other information regarding the appeal on an official public information page. The news media and twitter have generally been about 15 minutes ahead of this page when it comes to breaking news. Given the status of the case, however, I don't expect breaking news to appear in the next few days.
• The Western District of Washington case and ensuing Ninth Circuit Appeal is actually in an exceedingly strange and confusing procedural posture, hence the title of this post. It's technical, but in a way that any law student with 1L Civil Procedure under their belt could at least begin to expound on and attempt to unpack. This informative and very accessible piece was written by Sarah Jeong, who graduated law school not long before I did, and I think it does a good job of explaining why it's odd. 
• P.S. there's one extra step that Jeong's diagram omits. Ninth Circuit rules also allow for one additional stage after en banc review, should it occur,  a "super en banc" if you will. This has never actually occurred in the decades since the rule allowing for it was promulgated. 
• What happens next? Due to the current procedural imbroglio, it's somewhat unclear. Prior to a Ninth Circuit's judge call to have the case heard en banc, Professor Josh Blackman wrote a post providing a very complete explanation of some of the options. Ensuing events have closed some of the doors he described. (Professor Blackman's more technical post, part 1, regarding the current procedural status of the case is here, but with more editorializing and commentary on what may or may not be procedurally proper or improper.) 
• Judges rarely, almost never, make public comments that can be construed as directly political. Chief Justice Roberts may, however, occupy an unique position as the head of the Judicial Conference of the United States, as CNN reports. (The generally recognized norm that judges should refrain from political comment may or may not be as sacrosanct as many assume, at least as to the Supreme Court. All that is probably for historians and academics to comment on.)