Academic highlight: The quiet doctrinal shift (likely) behind the border-wall stay
By what was effectively a 5-4 vote, the Supreme Court yesterday agreed to fully stay a California district court’s injunction against President Donald Trump’s repurposing of appropriated funds to build part of his “border wall.” The Supreme Court’s summary order in Trump v. Sierra Club offered one sentence of explanation: “Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” But the decision is part of a larger, emerging trend that I explore in a new paper, a draft of which I’ve posted to SSRN — one in which the solicitor general has been unusually aggressive in seeking emergency or extraordinary relief from the justices, and the court, or at least a majority thereof, has largely acquiesced.
As I wrote back in December, the Supreme Court has broad constitutional and statutory authority to issue emergency relief (such as stays of lower-court rulings pending appeals) or extraordinary relief (such as writs of mandamus or certiorari “before judgment”). Historically, however, the justices have been loath to do so — preferring to follow regular order whenever possible, and requiring showings of true exigency and imperative to justify departures from “normal appellate practice.” And perhaps respecting and reflecting that skepticism, the solicitor general has generally been reluctant to invoke the court’s emergency and extraordinary authorities. Over the 16 years of the George W. Bush and Obama administrations, for example, the government sought a total of eight stays from the Supreme Court, asked for certiorari before judgment in four cases, and sought no extraordinary writs.
In sharp contrast, the Trump administration has repeatedly asked the court to depart from regular order. In two and a half years, the solicitor general has applied for at least 20 stays; has sought certiorari before judgment in 10 different cases, and has sought extraordinary writs against three different district court judges. Numerically, the government’s success rate is something of a mixed bag. Including yesterday’s decision, the Supreme Court has granted nine of the government’s stay applications in full (and three in part); it has granted certiorari before judgment in six of the 10 cases; and it has not granted any of the applications for extraordinary writs.
But the numbers don’t tell the full story. When the government has lost, its applications have often been denied without prejudice, or through orders that have nevertheless nudged the lower courts toward the government’s position. Whether directly or indirectly, the government has generally ended up getting most of what it has wanted — and no justice has identified any impropriety in the frequency with which the government has asked the Supreme Court for such unusual interventions. Simply put, even if the court hasn’t expressly approved of the government’s aggressive litigation tactics, its actions have largely acquiesced in them — and have left at least the impression that it has no objection.
Where has this uptick come from? The most common explanation, including the one most often provided by the solicitor general, is that it is a response to the rise of so-called “nationwide” injunctions. When a single district judge is able to block a federal policy on a nationwide basis, the argument goes, there is a clearer imperative for preliminary appellate intervention. The problem with this reasoning, the paper explains, is two-fold: First, a number of the government’s requests have come in cases that don’t involve nationwide injunctions. And second, even in those cases that do, there’s no explanation for why immediate appellate intervention by the courts of appeals has failed to rectify purportedly out-of-step district court rulings. Indeed, in explaining the reason for the stay in the Sierra Club case, the court pointed to whether the plaintiffs have a cause of action — not concerns over the breadth of the relief ordered by the district court.
Instead, the paper suggests a related but distinct explanation: That, quietly but steadily, the court’s doctrinal standard for emergency relief has more generally shifted toward a view first espoused by then-Justice William Rehnquist — that anytime a government policy is enjoined by a lower court, the government suffers irreparable harm regardless of the other equities involved (and regardless of the scope of the injunction). Rehnquist traced this idea to the “presumption of constitutionality” — the idea that, all things being equal, courts assume the government is acting lawfully, and the burden should be on the plaintiffs to prove otherwise. (Rehnquist was arguably overstating things; the presumption is about statutes, not all executive branch conduct, and is supposed to give way in any event to individual constitutional rights.)
On that view (whatever its merits), the government’s applications for emergency relief in these cases would turn entirely on whether the government has a reasonable likelihood of success on the merits of the entire case—and on the justices’ own predictive judgments of how the court is likely to rule if and when the full case reaches the court. And on that view, it wouldn’t (and doesn’t) matter if, as Justice Stephen Breyer protested in his partial dissent from yesterday’s stay, “there is a straightforward way to avoid harm to both the Government and respondents while allowing the litigation to proceed.” Only the harm to the government matters. As so conceived, it’s hardly surprising that a Republican administration has fared so well by that standard with the current Supreme Court. And it’s equally unsurprising that lower courts, without any clear guidance from the justices as to this shift in the doctrine, have reached different results even while purportedly answering the same questions.
The harder question is whether this development is a salutary one. The paper offers four potential objections. First, such “shadow doctrine” is messy, because it deprives the lower courts, government lawyers and the public of the opportunity to both know what the rules are and, where appropriate, push back against changes. As Will Baude cogently wrote about analogous developments in capital cases, accomplishing such a shift through a series of unexplained, unreasoned summary orders “is no way to run a railroad.”
Second, such an approach is also radically inconsistent with the court’s approach to the rest of its docket — where it repeatedly explains that “ours is a court of final review and not first view.” In that context, the justices routinely laud the benefits of percolation, so that cases come to the court with as fully developed a factual record and legal analysis as possible. This also allows for the possibility that, as I write in my paper:
[A] dispute that might have seemed grave and intractable at first blush is able to be fully and adequately resolved by the lower courts, sparing the Justices of the need to expend their heavily (self-)limited resources on cases they do not deem to be of sufficient importance or on issues they would, for whatever reason, just as soon not be forced to confront.
Third, insofar as the justices are making predictive judgments about how the litigation will unfold, there are numerous examples of those predictions not coming true. In the second round of travel-ban litigation, for instance, the government repeatedly pushed for (and received) emergency relief in order to be able to implement at least some aspects of the policy, but then substantially revised the policy on the eve of oral argument in the Supreme Court, prompting the justices to remove the case from the argument calendar and issue “Munsingwear” orders—vacating the decisions below and remanding with instructions to dismiss. And in the census case, the government moved heaven and earth in an effort to both block the depositions of senior officials and bar the Manhattan district court from considering extra-record evidence—only to have the district court base its ultimate ruling solely on the administrative record. In both cases, substantial resources were consumed by the Supreme Court on appeals that ended up being unnecessary.
Finally, and perhaps most alarmingly, the court’s conduct gives rise at least to the appearance of inequity—that the court is willing to suspend regular order whenever the government asks (or, worse, when certain administrations ask), but almost never in any other case, regardless of the circumstances. As lawyers for a criminal defendant seeking to challenge the validity of then-Acting Attorney General Matthew Whitaker’s appointment wrote in response to the government’s opposition,
We were struck but not surprised by the [Trump] Administration’s unblushing insistence that this Court follow normal order and refuse to decide this critical issue. The bright contrast between the Government’s position here and the one it articulates in its own applications risks making the Court appear unbalanced, as if it departs from its usual practices only to help this Administration.
At the very least, as the paper concludes, “the uptick in emergency applications from the government—often in the same case—necessarily comes at the expense of the Justices’ ability to consider other matters,” and often for naught. Reasonable minds may well disagree in weighing the costs and the benefits of the solicitor general’s new aggressiveness, and of the Supreme Court’s acquiescence to it. But at a minimum, if the court really has changed the rules for emergency relief, whether in general or only in a certain subset of cases, the paper explains why the justices should come out and say so — a step that might obviate the need for more rulings like the one handed down on Friday.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the petitioner in the Whitaker case. The author of this post is not affiliated with the firm.]