In this highly extraordinary case, the appeals court should step in even at this early stage — not to order that the case be dismissed, but to send it back to a different trial court judge for further review. The court of appeals is bound to permit (and require) a trial court to decide in the first instance those questions that are now before the court. If the court of appeals were to order Sullivan to dismiss the case now, the full appeals court or, if not, the Supreme Court, should reverse that error. The appeals court, though, would be justified in intervening in the case now to correct the process the judge has established for moving to decision. ADThe appeals court would then confront a novel and nettlesome question.

Source: Washington Post May 25, 2020 21:22 UTC