Orders without reasons

Immigration Matters is a recurring series by César Cuauhtémoc García Hernández that analyzes the court’s immigration docket, highlighting emerging legal questions about new policy and enforcement practices.

As the Supreme Court uses its emergency docket more frequently in disputes over high-profile policies, tension over the effect of decisions issued from that fast-paced process is brewing in public. Ten days after Justices Amy Coney Barrett and Sonia Sotomayor publicly described the emergency docket’s limitations, the Justice Department took to the emergency docket in Noem v. National TPS Alliance to ask the court to treat a three-paragraph order as binding in a case over Biden-era legal protection from deportation for Venezuelans that the Trump administration is trying to end. On Friday, the court sided with the government.

Unlike cases that reach the court’s merits docket, which involve lengthy fact-finding and legal argumentation over years, emergency docket cases move relatively quickly. Often, the court issues a decision within months of the lawsuit being filed in a federal district court. Most emergency docket decisions are short pronouncements. Since they often focus on a specific procedural matter, it isn’t unusual for the justices to recycle sentences and fail to explain their reasoning.

Issuing a decision quickly is valuable, but it comes at a cost. Last month, Barrett explained the downside of the emergency docket’s truncated decision-making process. “There’s no opportunity for percolation” of legal arguments in the lower courts, she told Sarah Isgur from SCOTUSblog and David French of The New York Times in an interview on the Advisory Opinions podcast (published by The Dispatch, which owns SCOTUSblog). “We might be writing sooner than we want to be or with less information than we want to be,” Barrett added. To get a decision out quickly, the justices can’t hear multiple perspectives on the legal issues as they normally do for cases on the court’s merits docket. “You don’t have the time to go back and forth if you’re actually going to dispose of these things quickly,” Barrett explained.

Appearing on Stephen Colbert’s “The Late Show” in early September, Sotomayor explained the importance of written opinions, which certainly applies in the context of the emergency docket. Sotomayor noted that persuasion is the court’s only weapon, and written opinions are how the court tries to persuade the public. “We don’t have the power of the purse, so we can’t threaten people with money. We don’t have an army,” she said. “We have the power of persuasion and so we write in the hopes of convincing all of you, the public, that there’s a reason for why we’re ruling the way we are.”

After the justices issue their written opinions, Barrett and Sotomayor have each suggested that the public needs to do its part to inform itself. “Read the opinion,” Barrett said in 2022. Echoing her last month, Sotomayor stated, “read the decisions.”  Responding to Colbert’s questions, Sotomayor said that orders in which the justices don’t provide their reasoning don’t have the same effect as decisions in which the justices explain themselves. When the court doesn’t explain its reasoning, an emergency docket order “doesn’t control,” Sotomayor said.

Recent litigation over legal protections for citizens of Venezuela illustrates the emergency docket’s speed and the lack of explanation in its rulings. In National TPS Alliance v. Noem, a group of Venezuelans who had been granted Temporary Protected Status, along with an organization that advocates on behalf of TPS recipients, sued Secretary of Homeland Security Kristi Noem on Feb. 19, claiming that she failed to follow the required procedures to terminate their legal authorization to live in the United States.

A federal district court agreed on March 31, concluding that Noem likely violated the federal Administrative Procedure Act and the Constitution’s equal protection clause. After the U.S. Court of Appeals for the 9th Circuit refused, less than a month later, to put the district court’s order on hold while the government appealed, the Justice Department turned to the emergency docket on May 1 to ask the Supreme Court to intervene. Three months after the lawsuit began, on  May 19, the justices granted the government’s request, pausing the district court’s order.

As is common in emergency docket decisions, the justices did not explain why they put the lower court’s order on hold. The court’s decision includes six sentences spread across three paragraphs. One of those paragraphs consists of a single sentence noting that Justice Ketanji Brown Jackson disagreed with her colleagues, but it does not say why. Another paragraph consists of four sentences, three of which describe the process by which the case reached the court’s emergency docket or the process that will follow. This generic process explanation is identical to statements made in other emergency docket orders.

Only the remaining paragraph, which consists of one sentence, refers to the specific legal issue at stake in the case. Even then, the justices don’t address their reasoning. The justices noted that their order shouldn’t “prejudice” any legal challenge to Noem’s attempt to strip Venezuelans of work permits and legal authorization to continue living in the United States. Except for Jackson, we can’t even be sure whether all the justices voted with the majority.

Since the Supreme Court issued its decision in May, the legal fight over TPS has returned to the lower federal courts. In a 69-page opinion issued in September, U.S. District Judge Edward Chen noted that the Supreme Court “did not provide any specific rationale for its decision” but did permit the legal challenge over the required procedure to move forward. For that reason, Chen described in detail Noem’s decision-making process, then concluded that she failed to comply with federal law. Chen ordered Noem to postpone the decision to terminate TPS for Venezuelans. The U.S. Court of Appeals for the 9th Circuit declined the government’s request to pause Chen’s order, prompting the Justice Department to again request intervention by the Supreme Court.

In its ongoing legal fight to end TPS for Venezuelans, the Justice Department prompted the justices to downplay Barrett’s worry about the front end of the emergency docket process and disagree with Sotomayor’s claim about its future impact. Since the court had already blocked implementation of the lower court’s decision once, it should do so again, Solicitor General D. John Sauer argued in the government’s most recent request to the Supreme Court in this case. Despite the short length of the court’s earlier order, “there was no need for speculation” about its reasons, Sauer claimed. The justices “evidently concluded that the government was likely to succeed,” he added. For that reason, the court’s prior order “squarely controlled” the current round of litigation, Sauer wrote. The 9th Circuit’s refusal to stay Chen’s September order was “indefensible” and a “needless afront to stare decisis,” the principle that courts should follow earlier rulings about similar legal issues, Sauer added.

Sauer’s application to stay Chen’s order invited the justices to clarify what to make of the typical emergency docket decision. Should lower courts and lawyers assume that decisions are meant to have lasting impact even if they number no more than a handful of sentences? To Barrett, emergency docket decisions are rushed. To Sotomayor, decisions in which the justices don’t explain their reasoning, as is true in National TPS Alliance, should have limited influence on future legal proceedings.

In another short decision in this case, the justices signaled that their emergency docket orders do sometimes control later stages of a dispute. The majority decision, released late Friday, numbers three paragraphs, most of which recite basic facts about the process this case has followed. In two sentences of one three-sentence paragraph, the majority announced that they see little difference in the strength of arguments made by the parties now and in May. Since “the parties’ legal arguments and relative harms generally have not” changed, the majority announced, “[t]he same result that we reached in May is appropriate here.” They did not explain why.

As is common in emergency docket cases, the majority opinion is unsigned. Justices Sotomayor, Elena Kagan, and Ketanji Brown Jackson would have denied the government’s request. Writing for herself, Jackson lamented the majority’s willingness to use its power to contradict “reasoned and thoughtful written opinions” by lower court judges while failing to write an opinion explaining themselves. Neither Sotomayor nor Kagan explained their reasoning.

Having agreed with the Justice Department despite the concerns that Sotomayor and Barrett raised, the court has once again put lower courts and lawyers in a position to attempt to divine meaning out of sparse text. And instead of reading thoughtful reasoning, as Barrett and Sotomayor implore, it has left ordinary people to read the judicial equivalent of tea leaves. Neither is likely to help courts, lawyers, or the public make sense of why the court does what it does.