The Supreme Court fails to apply its own precedent and continues to sow confusion through its shadow docket

Cases and Controversies is a recurring series by Carolyn Shapiro, primarily focusing on the effects of the Supreme Court’s rulings, opinions, and procedures on the law, on other institutions, and on our constitutional democracy more generally.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

In July, I suggested that one reason the Supreme Court is issuing so many shadow docket rulings without explanations is that the justices cannot themselves agree on the reasons for the orders. I also argued that such disagreement by itself counsels against granting emergency relief.

And in a different post, I argued that the court’s opinion in Trump v. CASA suggested that it was applying a new, unique, and unjustified standard for evaluating when the government is experiencing irreparable harm, which is one of the requirements for obtaining a stay of a lower court’s ruling. It appears, I said, that a majority of the court may think that the government (or more accurately, this government) necessarily suffers irreparable harm when a lower court enjoins the government from doing something it wants to do.

The court’s Aug. 21 order pausing a district court injunction related to National Institutes of Health grants provides evidence for all of these claims and further illustrates the court’s problematic treatment of cases on its shadow docket.

In National Institutes of Health v. American Public Health Association, two sets of plaintiffs challenged the cancellation of nearly $800 million in grants based on a series of executive orders related to funding for activities and research that implicate what the Trump administration considers inappropriate attention to race, gender, and other DEI considerations. In considering those challenges, district court Judge William Young, a Reagan appointee, stated: “I have never seen a record where racial discrimination was so palpable … I’ve sat on this bench now for 40 years, and I’ve never seen government racial discrimination like this.” Young also called out “discrimination against America’s LGBTQ community” inherent in the grant terminations. Ultimately, Young issued a preliminary injunction barring the government from suspending the grants.

But the Supreme Court addressed none of that. Instead, in an opaque order and a series of fractured opinions, it granted the Trump administration’s request to stay the district court ruling requiring the grant payments to be made. At the same time, it kept in place a separate portion of the district court order that struck down the underlying agency guidelines implementing the executive orders, although neither the government nor the plaintiffs argued that the two parts of the district court order could be bifurcated. That is confusing enough, but even more confusing is the voting line-up and accompanying opinions.

The court split 5-4 on both of parts of its order, with only one justice – Justice Amy Coney Barrett – in the majority in both. Barrett wrote a solo opinion explaining her views. In denying the stay as to the underlying agency guidance, she agreed with Chief Justice John Roberts and the three Democratic appointees that the district court’s injunction was likely appropriate. In granting the stay as to the grant terminations, on the other hand, she concluded that the grant termination challenges likely had to be heard in the Court of Federal Claims, meaning that she voted to stay the part of the district court order that actually required the grant money to flow. On that point, she joined the votes of the four other conservatives, who would have granted the stay in full.

Altogether, there were a total of five opinions in addition to the order itself, with no opinion joined by more than four justices. And two justices – Justices Clarence Thomas and Samuel Alito – provided no explanation for their votes. Yet it took the court 17 days after the emergency application was fully briefed to issue the order and accompanying opinions. In one sense, 17 days is not much – after all, the court routinely takes months to decide its merits cases. But when it comes to emergency relief, it’s actually quite a long time.

I’m not going to provide a comprehensive critique or summary of the court’s handling of this case, which SCOTUSblog itself explained here. For two particularly trenchant critical analyses, I refer you to Chris Geidner and Steve Vladeck, both of whom focus in particular on – and compellingly refute –  Justice Neil Gorsuch’s claim (joined by Justice Brett Kavanaugh) that the lower courts are “defy[ing]” the Supreme Court’s shadow docket rulings and courting “anarchy.” Among other issues, as Geidner and Vladeck both point out, at least four of Gorsuch’s colleagues in this very case disagreed with him about the meaning of a key shadow docket order, which makes his claim of lower-court anarchy and defiance overstated at best. It also, as Vladeck writes, is both insulting to hard-working district court judges and particularly problematic at this moment when some supporters of the administration are claiming that any rulings against it are illegitimate. Indeed, that’s the kind of rhetoric that the chief justice himself criticizes when it comes from political actors.

Nor does National Institutes of Health itself give clear guidance to lower courts. For example, Barrett is apparently the only justice who considers the underlying agency guidance separable from the grant terminations. She notes that the district court itself separately vacated the guidance and the termination. But what if it hadn’t? What if it had expressly concluded that the grant terminations and the guidance were inseparable, so that vacating the guidance automatically meant the grants would be reinstated? What if the relief the district court had ordered was more contingent, affirmatively requiring reassessment of the grants in the absence of the guidance but not necessarily reinstating all of them? It is, quite frankly, impossible to know.

This problem of unclear guidance is particularly acute when there is no majority reasoning, as is the case in National Institutes of Health. In fully briefed and argued merits cases (which National Institutes of Health is not), “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by the Members who concurred in the judgment on the narrowest grounds.’” That’s a quote from Marks v. United States, long the primary guidance on interpreting fragmented merits rulings – and long criticized for its unworkability. Applying Marks to the minimalistic explanations in a case like National Institutes of Health, much less determining how the case implicates different facts and legal arguments in subsequent litigation, is, at best, like putting together a puzzle with half the pieces missing – and then possibly being called defiant and anarchic for not producing a complete picture.

All of this reinforces the argument that the court should be much more reluctant to grant emergency relief. As Justice Ketanji Brown Jackson points out in her National Institutes of Health opinion, the court and individual justices have historically denied such applications routinely. There are good reasons for that, including the need for the record and legal arguments to be fully developed, not just below but in the court itself. To the extent that the court believes that some decisions must be made quickly, it is perfectly capable of expediting the litigation, as indeed the lower courts have been doing.

Which brings me back to the question of irreparable harm. In National Institutes of Health, the court’s order noted that the plaintiffs said they could not maintain the funded research in the absence of the grants and so appeared to be unable to reimburse the government were they ultimately to lose. Such an unrecoupable financial loss to the government, the court said, is irreparable harm. Yet in Department of Education v. California, the unsigned 5-4 decision that Gorsuch says controls National Institutes of Health (and which he chastised the district court for supposedly disregarding), the court said the inverse: that the plaintiffs failed to show irreparable harm, because they indicated that they could keep the programs at issue in that case running even without the government funding. In other words, only the government appears able to suffer irreparable financial harm. Heads, the government wins; tails, the plaintiffs lose.

Even more importantly, the court and the justices who voted to stay the district court order in National Institutes of Health entirely fail to discuss any other kinds of irreparable harm, or any of the other factors, including the public interest, that are, under the Supreme Court’s own precedent, essential elements in deciding whether to grant a stay. Here those considerations are significant, and they point towards denying the stay. As Jackson put it: “Per the evidence in front of the District Court, the forward march of scientific discovery will not only be halted—it will be reversed. Because ‘studies and researchers cannot be held in stasis,’ … yearslong studies will lose validity. Animal subjects will be euthanized. Lifesaving medication trials will be abandoned. Countless researchers will lose their jobs. And community health clinics (providing, inter alia, preventative treatment for infectious diseases) will close.” That is significant irreparable harm, including to the public interest in scientific and medical progress.

Some members of the court may claim that the lower courts are not following its guidance, but in fact it is the court itself that is doing so. It is at best ignoring and at worst defying its own precedent. It should hold itself to the same standard it demands of the lower courts.