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4. "A Court of Review, Not First View"
More than ever before, the Supreme Court is resolving major legal questions at the beginning of lawsuits. What's less clear is whether that's a good thing.
Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us. Every Monday, I’ll be offering an update on goings-on at the Court; a longer introduction to some feature of the Court’s work or its key players; and some Court-related trivia.
Perhaps the two biggest headlines coming out of the Supreme Court last week had a heck of a lot in common. On Tuesday, the Justices heard oral argument in the un-specifically (but tellingly) named case of United States v. Texas. And on Thursday, the Court agreed to hear, on an expedited basis, a challenge by six Republican-led states to the Biden Administration’s student loan debt relief program (the same unsigned and unexplained order “deferred,” and therefore effectively declined, the Biden Administration’s request to let the program, which the Eighth Circuit had blocked on a nationwide basis, go back into effect pending the appeal):
The two cases present very different substantive issues. Texas is about whether federal immigration law allows the Executive Branch to set priorities when it comes to allocating the government’s finite resources to arrest, detain, and remove from the country non-citizens who are subject to removal (or whether, as Texas argues, the Executive Branch has no discretion in the matter and must equally pursue all removable non-citizens). And the student loan case, known as Biden v. Nebraska, is about whether the debt relief program is authorized by the federal statute on which it purports to rely—the 2003 HEROES Act.
But procedurally and optically, the cases have a ton in common. Both cases involve challenges by Republican states, as such, to Biden Administration policies. Both cases rely upon an especially broad (if not patently incorrect) view of when states (rather than private parties) should be allowed to challenge federal initiatives, solely because of the indirect effects the policies might produce within the state. Both cases involved efforts by the state plaintiffs to shop for friendly judges who might be sympathetic to the states’ objections on the merits (for instance, by filing in the small city of Victoria rather than the state capital, Texas had a *100%* chance of having its suit assigned to Trump-appointed Judge Drew Tipton). Both cases saw lower courts issue “nationwide injunctions” that prevent the federal policies from being effectuated anywhere, or against anyone. Both of those nationwide injunctions precipitated emergency applications from the Biden Administration to the Supreme Court. And in both cases, instead of granting the federal government’s emergency requests (and allowing the federal government to continue carrying out its policies), the Court agreed to conduct plenary review on an expedited basis by granting “certiorari before judgment,” i.e., before the court of appeals had conclusively ruled on the case.
These cases thus provide the theme for this week’s issue of the newsletter: the timing of Supreme Court review relative to the progress of a suit in the lower courts. This might seem like a hyper-technical (if not pedantic) topic, but it’s an increasingly important one for the Court as an institution—as cases like Texas and Nebraska are becoming far more common staples of the Justices’ docket.
The One First Long Read: “First View vs. Review”
Let’s start at the beginning: Before cases reach the Supreme Court, they’ve typically gone through lengthy proceedings in at least two lower courts—the “trial” court (in the federal system, these are the “district courts”); and an intermediate appeals court. The longstanding statutory and normative preference is for appeals to be taken only after “final judgments,” i.e., when all of the factual and legal issues have been resolved to the maximum extent possible. Thus, the typical Supreme Court case has taken years to get there; has generated significant trial and appellate proceedings; and, as such, has had a chance for all of the potential warts and hiccups to be identified, so that the issues have been crystallized by the time they reach the Justices. (As a case in point, the original complaint in the high-profile dispute in which the Court is hearing argument later today, 303 Creative LLC v. Elenis, was filed on September 20, 2016—more than six years ago.)
The Justices themselves regularly insist on this structural reality. Every year, the Court’s opinions are replete with the mantra that “we are a court of review, not of first view,” typically invoked as a reason why the Justices won’t address particular issues and/or take particular actions in cases in which they’ve granted review. The basic idea is that it’s seldom appropriate for the Justices to resolve issues that weren’t addressed first in the lower courts; or, except where absolutely necessary, to intervene in disputes at an “interlocutory” stage (i.e., before a final judgment in the lower courts). The Court’s primary function, as it explained in a 1971 case, is to serve as an appellate tribunal—in which it is as much reviewing the decisions of the lower courts as it is the independent submissions of the parties. To that end, Justices regularly stress the virtues of “percolation” in the lower courts.
No one disputes that the Court has the raw power to resolve issues that weren’t raised or resolved below. And it has the raw power to hear appeals from non-final judgments. Indeed, in cases coming up from lower federal courts (but not state courts), the Justices have had the power ever since the Judiciary Act of 1925 to hear appeals directly from trial courts—by granting certiorari “before judgment” in the court of appeals. (The statute requires only that the case be “in” the court of appeals, which simply means that an appeal has been filed.)
Historically, though, the Court used these powers sparingly, and only in truly exigent circumstances. In 1976, then-Justice Rehnquist referred to “certiorari before judgment” as “an extremely rare occurrence.” The cases meriting certiorari before judgment were cases like the Nazi saboteurs’ case during World War II; the steel seizure case during the Korean War; the Watergate tapes case; and the Iranian hostage crisis case. These disputes weren’t just important; they were cases in which time was unquestionably of the essence. (The Supreme Court’s Rule 11 provides that certiorari before judgment “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court”).
To illustrate the point, between June 1988 (the last time Congress meaningfully altered the Court’s appellate jurisdiction) and August 2004, the Court only granted such expedited merits review in three cases, two of which were companions to cases in which the Court was already conducting ordinary appellate review. And from August 2004 to February 2019, the Court didn’t grant a single petition for certiorari before judgment.
Thursday’s grant of certiorari before judgment in Biden v. Nebraska, in contrast, was the 18th grant of certiorari before judgment since February 2019:
That’s a pretty remarkable shift. Why is it happening? Only the Justices know for sure, but there are a couple of possibilities worth considering.
I. Nationwide Injunctions: A common reaction to both the uptick in certiorari before judgment and in the frequency of emergency applications in the Supreme Court is that it’s come alongside, and is a reaction to, the rise of “nationwide injunctions” from district courts. When a court issues a “nationwide injunction,” it’s not just compelling the defendant to take (or not take) specific actions against the plaintiffs; it’s compelling them to do so against everyone. And at least during the Trump Administration, these orders were heavily criticized by conservatives, many of whom claimed they were beyond the formal authority of federal district judges to impose. Because nationwide injunctions have more dire consequences, the theory goes, the more of them that lower courts are granting, the more pressing the need for the Supreme Court to step in at earlier stages of cases to resolve the underlying issues one way or the other.
There certainly have been a number of nationwide injunctions against Biden Administration policies, too (albeit with less criticism from conservatives), but as the above chart demonstrates, those injunctions aren’t what’s driving the frequency of hyper-expedited review in the Supreme Court. Of the 18 grants of certiorari before judgment since February 2019, the Nebraska case is only the fifth to involve such relief. There’s a lot more to say about nationwide injunctions, but as relevant here, they don’t seem to be (solely) responsible for this trend.
II. States as Federal Policy Challengers: Another possible explanation, related to but distinct from nationwide injunctions, is the proliferation of lawsuits by states challenging federal policies. Indeed, the Texas case is one of 29 different suits Texas has filed against the Biden Administration in less than two years. And blue states, like California, were frequent litigants against the Trump Administration.
The issue with these state lawsuits is two-fold. First, some states, like Texas, are exploiting procedural technicalities to ensure that their suits are heard by sympathetic judges. To be sure, “forum shopping” is behavior in which most litigants engage. But Texas is taking it one step further, repeatedly filing its lawsuits in parts of the state with no specific connection to the dispute, but in which it is guaranteed to draw a specific judge. Judge Kacsmaryk, for instance, hears 100% of civil cases filed in the Amarillo division of the Northern District of Texas. Judge Tipton, as noted above, hears 100% of civil cases filed in the Victoria Division. And so on. So it’s not just that state attorneys general of the opposite party are increasingly viewing litigation against the federal government as a core part of their job; it’s that they are increasingly able to ensure that, instead of having those suits randomly assigned, they can pick friendly judges to hear them. (Together with Lindsay Harrison from Jenner & Block and the National Immigration Law Center, I filed an amicus brief in the Texas case elaborating on Texas’s litigation behavior and how it’s materially more manipulative than what Democratic-led states did during the Trump Administration.)
Second, and relatedly, some states have relied upon increasingly … broad … theories of when they have “standing” to challenge allegedly unlawful federal policies. A century ago, the Supreme Court held that, as a general matter, states do not have standing to challenge federal policies just because they’re states. Rather, they have to show some kind of injury that the state suffers, as such—not just an injury to their citizens. A good example of the distinction is the initial litigation challenging the Affordable Care Act. The courts of appeals held that states did have standing to challenge the Medicaid expansion (which affected states directly), but did not have standing to challenge the individual mandate (which affected states only indirectly).
In the Texas case, in contrast, Texas’s theory of standing is that the presence in the state of additional non-citizens subject to removal who aren’t being removed causes incidental economic harm to the state. But even accepting that this is true (it’s quite speculative), it’s an injury that every state suffers. And it’s long been a cornerstone of the Supreme Court’s standing jurisprudence that injuries must be “particularized,” i.e., they must be suffered by the plaintiff in some respect that is distinct. So long as lower courts are willing to let states sue the federal government whenever a federal policy causes incidental (and non-particularized) economic effects within the state, that will mean, in practice, that every new federal policy can be challenged by a state whose elected officials are from the party opposite the current President. As Professor Alex Bickel warned in 1966, “[i]t would make a mockery ... of the constitutional requirement of case or controversy ... to countenance automatic litigation—and automatic it would surely become” if states could sue in all such cases. But here we are.
And yet, as with nationwide injunctions, broad state standing also doesn’t fully explain the trend of the Supreme Court stepping into high-profile cases at an ever-earlier stage. Only a handful of the cert. before judgment cases, for instance, involve states as plaintiffs.
III. A Court in a Hurry: This leads to the third possible explanation, which is that, for better or worse, this is a Court that’s far more willing to intervene in general at earlier stages of disputes, whether through orders granting applications for emergency relief, or through expedited merits review of non-final lower court orders. For whatever reason, the Justices today are less committed to the preferences of their predecessors when it comes to having litigation fully fleshed out in the lower courts, or perhaps they have a lower bar when it comes to the kind of “emergency” that justifies such early-stage intervention. Likewise, we’re seeing far more use of certiorari before judgment in the context of summary procedural orders, where the Justices are wiping away lower-court rulings at a very early stage without necessarily resolving the underlying dispute.
Reasonable minds may differ as to which of these explanations best captures the reasons for this shift in the Court’s behavior. But what can’t be gainsaid is that it’s a shift. And, in my view, this shift impacts the Court in several ways that, wholly without regard to the bottom lines of these cases, may be less than ideal.
First, and perhaps most significantly, it increasingly puts the Justices in the position of answering potentially major questions of federal law that simply haven’t been developed in the lower courts. Take the student loan program: Neither the district court nor the Eighth Circuit in the Nebraska case said anything about the merits of the dispute—i.e., whether the program is authorized by the HEROES Act. The district court held that the states lacked standing; and the Eighth Circuit, after concluding that at least Missouri has standing, justified a nationwide injunction because the “merits of the appeal before this court involve substantial questions of law which remain to be resolved.” (Never mind that the Supreme Court has insisted that lower courts must say more about the merits before issuing an injunction.) Thus, when the Supreme Court considers the student loan dispute in February, it will be doing so on a virtual blank slate.
Second, and relatedly, because lower-court proceedings have not had a chance to run their course, there’s been no opportunity for lower courts to make factual findings or to develop the kind of record that allows the Justices to avoid answering what may well be hypothetical questions. At the pleading stage, plaintiffs have merely alleged what they believe to be true about the defendants’ conduct. Having the Justices routinely resolve significant questions of federal law based only on plaintiffs’ allegations risks having the Justices render the very kinds of advisory opinions they have held Article III to forbid.
Finally, even for those who are less troubled in the abstract by this inversion of ordinary appellate processes, the Court has offered no criteria to explain the cases in which such inversion is appropriate, versus those in which the more conventional modes of appellate review suffice. Indeed, the Court hasn’t even acknowledged that it’s doing more of this in the first place. That opens the door to charges of inconsistency with respect to which cases and litigants receive such preferential procedural treatment from the Justices—and it increases the unpredictability, from the perspective of litigants and lower courts, about when and how the Court is going to fill out its docket. Indeed, the more time and energy that the Justices are devoting to cases that reach them in such a preliminary and putatively urgent posture, the less time and energy they presumably have for the rest of their docket.
The last thing to say is perhaps the most important: Insofar as this significant shift in the nature of the Court’s work is producing less-than-ideal effects, those effects don’t have an obviously ideological or partisan valence. We’ve become so predisposed in this day and age to assume that all conversations about Court reform must be tribal—progressives support reform; conservatives oppose it. But here’s a good example of what at least appears to be a problematic shift in the nature of the Court’s work that is wholly unrelated to the ultimate results the Justices are reaching.
My own view, as we’ll explore in future issues, is that there are other examples of reform possibilities that don’t—or at least don’t have to—sort us into our traditional camps. The key for present purposes is that, insofar as this new flurry of expedited, early-stage appeals is one that’s not ideal for the Court, some of the more obvious solutions (limiting state standing; reducing judge-shopping; limiting the frequency of nationwide injunctions) would apply in ways that don’t obviously favor one party over the other (and so might actually have a chance of going through Congress).
Hopefully, at least, it’s food for thought…
SCOTUS Trivia: Texan-on-Texan Crime
Speaking of Texas (it’s a stretch, but work with me), this week’s trivia has a bit of a Texas theme. Justice Jackson is the 116th person to serve on the Supreme Court. Only two of the 116 were born in Texas, and only one of those, Justice Tom C. Clark, is generally identified as a Texan (the other, Justice Sandra Day O’Connor, spent virtually all of her pre-Court career in Arizona).
Clark, an alumnus of the Finest Law School For 1000 Miles In Every Direction (which, entirely unrelatedly, is my current employer), was appointed to the Court by President Harry S Truman in 1949 after serving for four years as Truman’s Attorney General. Although Clark is not nearly as well-known as many of his contemporaries on the Court, his tenure is perhaps best known for his majority opinions in the landmark 1964 cases Heart of Atlanta Motel v. United States and Katzenbach v. McClung, which upheld Congress’s prohibition of racial discrimination in places of public accommodation in Title II of the Civil Rights Act of 1964.
But the “trivia” is how Clark was effectively forced off of the Court in 1967. It all has to do with his fellow Texan, then-President Lyndon Baines Johnson. LBJ desperately wanted to appoint the Court’s first non-white Justice. And in legendary civil rights lawyer Thurgood Marshall, he had his man. Marshall had already served four years on the Second Circuit, and LBJ had successfully appointed him Solicitor General in 1965. There was just one problem: There were no vacancies on the Court.
So, as the story goes, LBJ orchestrated one. First, he persuaded Attorney General Nicholas Katzenbach to step down (to become Undersecretary of State). Why Katzenbach? Because his deputy, and now the Acting Attorney General of the United States, was Ramsey Clark—one of Justice Clark’s two sons. Johnson promptly nominated Ramsey Clark to succeed Katzenbach as Attorney General, correctly predicting that the senior Clark would feel impelled to recuse from every case in which the United States was a party, which would make it untenable for him to remain on the Court. Ramsey Clark was sworn in as Attorney General on March 10, 1967; Tom Clark retired on June 12. The very next day, President Johnson announced Marshall’s nomination.
Marshall was confirmed on August 30, albeit not without some drama (Wil Haygood’s excellent 2016 book “Showdown” tells the story), by a vote of 69-11, and he took the oaths of office on October 2.
I hope you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to e-mail me. If you liked it, I hope you’ll consider sharing it:
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Happy Monday, everyone! Have a great week!
In United States v. Windsor (the DOMA case) in 2012, the Obama Administration initially filed a petition for certiorari before judgment. But by the time the Supreme Court granted plenary review, the Second Circuit had ruled on the merits, so that the grant of certiorari was in the ordinary course.