147. The Increasingly Overloaded Emergency Docket

The unprecedented (and unsustainable) flurry of emergency requests in Trump-related cases shows no signs of letting up. The harder question is whether the justices are willing to do anything about it.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us. We hit a major milestone on Saturday—surpassing 80,000 subscribers!! I’m grateful to all of you for your continued support, and I hope that you’ll consider sharing some of what we’re doing with your networks.

As has been true every week since we launched in November 2022, each Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. We also just launched “First One,” the weekly bonus audio companion to the newsletter for paid subscribers, with the latest episode dropping last night. If you’re not already a subscriber, I hope you’ll consider becoming one. And if you are, and your circumstances permit, I hope you’ll consider upgrading to a paid subscription:

The Supreme Court didn’t make too many major headlines last week, but it’s just a matter of time before it does so—not just with the expected end-of-term rulings in cases argued since last October, but as the Trump administration keeps going back to the justices for emergency relief, asking the Court in case after case to pause adverse lower-court rulings while the appeals work their way through the legal system. We’re now up to 13 such applications from the Trump administration in 15 weeks—seven of which remain pending. (For comparison, the Bush and Obama administrations filed a total of eight applications across the sixteen years of those two two-term presidencies.)

The cases in which these applications are arising are all important. But I thought I’d use today’s regular installment of the newsletter to take a more holistic look at the pattern; to reflect a bit on what it means for the Court that it continues to be besieged with an unprecedented number of such requests (with no signs of abating); and to offer some thoughts on how the Court could try to take some pressure off of the emergency docket—assuming it actually wants to do so. Folks are going to disagree as to why the Court is so busy (whether it’s because of unprecedented lawlessness by the executive branch; unprecedented pushback from lower federal courts; or both). What can’t be denied is that the status quo seems increasingly unsustainable.

As always, let’s start with the news.

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On the Docket

The Court concluded its regular argument calendar for the October 2024 Term last week—and also handed down a (quiet) regular Order List and two decisions in argued cases:

1. Advocate Christ Medical Center v. Kennedy: On Tuesday, in an extremely technical dispute about the interpretation of a specific provision for the reimbursements of hospitals under the federal Medicare program, Justice Barrett wrote for a 7-2 majority in siding with the federal government. Justice Jackson, joined by Justice Sotomayor, dissented.

2. Feliciano v. Department of Transportation: On Wednesday, in another statutory interpretation dispute, we saw the first-ever 5-4 split in which the four dissenters were Justices Thomas, Alito, Kagan, and Jackson. For the majority, Justice Gorsuch held that the federal “differential pay” statute applies to any civilian employee called to active duty at the same time as a national emergency—and not just those called to duty that is related to that emergency. There’s a lot to commend both arguments here (Justice Thomas wrote for the dissenters). But I’ll confess that I find the Gorsuch opinion more persuasive here. If nothing else, it’s a really good (and accessible) reminder of how reasonable judges can read the same statutory text so totally differently.

The only other action from the full Court came Thursday—when the justices denied five separate emergency applications from Florida death-row inmate Jeff Hutchinson. (There were no public dissents from any of the denials.)

Turning to this week, the only thing we expect for certain is a regular Order List at 9:30 ET today. But there are now a slew of pending emergency applications, most—but not all—of which are in Trump-related cases. It might be helpful to flag the (nine!) pending applications most likely to produce rulings from the full Court (although the first three will come down as a single decision):

1. 24A884—Trump v. CASA, Inc.: The first of the three applications in which the Trump administration is asking the Court to narrow “nationwide” injunctions against its attempt to limit birthright citizenship (but not actually uphold the policy). All three are set for a (very rare) oral argument on Thursday, May 15, and we expect a ruling no sooner than around Memorial Day (if not sometime in June).

2. 24A885—Trump v. Washington: The second of the birthright citizenship applications.

3. 24A886—Trump v. New Jersey: The third of the birthright citizenship applications.

4. 24A966—Trump v. Wilcox: This is the case about whether a statute barring President Trump from firing members of the National Labor Relations Board and Merit Systems Protection Board without cause is unconstitutional (which is, more broadly, a referendum on whether the Court is going to overrule its 1935 decision in Humphrey’s Executor, under which these statutes ought to be valid and Trump’s firings ought to be illegal). Chief Justice Roberts entered an “administrative” stay (allowing Trump to fire Gwynne Wilcox and Cathy Harris) on April 9, i.e., 26 days ago, but we haven’t heard from the Court since. That’s a remarkably long time for an “administrative” stay to remain in place; I’ve found only one other administrative stay in the last 10 years that lasted longer.¹ This delay suggests, rather strongly, that the Court is trying to find some kind of longer-term resolution to the application here—but I still think the most likely outcome is that the Court takes the issue up on the merits and holds an extra argument either later this spring or right before the new term begins in October. As I’ve suggested previously, this issue is a huge deal not just because of its immediate implications for agencies like the NLRB and the MSPB, but because of its broader implications for the independence (or lack thereof) of the Federal Reserve.

5. 24A1007—A.A.R.P. v. Trump: Folks will surely recall the Court’s late-Friday-night/early-Saturday-morning ruling on April 19 in one of the Alien Enemy Act cases—in which the majority temporarily barred any further removals of non-citizens from the Northern District of Texas under the AEA. But that ruling, now 16 days ago, was not a conclusive ruling on the ACLU’s emergency application—which remains pending. Presumably, at some point, the justices are going to have to say something about what happens next in that case (even as other AEA cases are moving forward). This application, like the four ahead of it, is fully briefed.

6. 24A1030—United States v. Shilling: This is one of the lawsuits challenging the President’s attempt to ban transgender individuals from continuing to serve in the U.S. armed forces. A Seattle-based district judge issued a nationwide injunction against the policy, and the Ninth Circuit declined to stay that injunction pending appeal. Notably, the government is asking for both a stay of the entire injunction and, at a minimum, a ruling that limits the district court’s injunction to the named plaintiffs. Among other things, that might lead the justices to hold off ruling on the application one way or they other until they’ve at least decided what they’re going to do in the birthright citizenship cases—if not until that decision is handed down. This application, too, is fully briefed—and thus otherwise ripe for a ruling.

7. 24A1051—Libby v. Fectau: The only one of the nine significant pending applications to not involve the Trump administration, this is a challenge by a member of the Maine House of Representatives who was censured by the House for refusing to remove a Facebook post that publicly targeted an underage transgender athlete in Maine. Rep. Libby has argued that the Maine House’s action has effectively disenfranchised her constituents. The district court declined to issue the requested injunction because of the doctrine of legislative immunity, and the First Circuit refused to issue a stay. Libby is asking the Court to issue an injunction itself—a move that requires her to show that her right to relief is “indisputably clear.” Justice Jackson has ordered a response, which is due this Thursday.²

8. 24A1059—Noem v. Nat’l TPS Alliance: The 12th application from the Trump administration, this one challenges a San Francisco district court’s injunction against Secretary Noem’s revocation of “Temporary Protected Status” for a large number of Venezuelan nationals residing (lawfully) in the United States. The application argues that Noem’s action is not subject to judicial review, and is in any event lawful. And it argues in the alternative that the injunction should at least be limited to the named plaintiffs—which, again, implicates the birthright citizenship cases. Justice Kagan has ordered a response, which is (also) due this Thursday.

9. 24A1063—Social Security Admin. v. Am. Fed. of State, County, & Municipal Employees: The first DOGE-related case to reach the Court (and the 13th Trump application), this one is about whether DOGE was lawfully given access to data in the possession of the Social Security Administration. The district court held that it was not, and the Fourth Circuit, dividing 9-6, declined to issue a stay. Unlike the transgender servicemember and TPS cases, the injunction in this case was not universal—and so the Court can presumably reach and resolve whether to grant emergency relief without regard to what happens in the birthright citizenship cases. That said, Chief Justice Roberts ordered a response by next Monday—and has taken no action on the government’s request for an immediate, “administrative” stay (effectively but not formally denying it).

Obviously, we don’t expect rulings in many of these cases this week. But at some point, the Court is going to have to clear these decks—all while the justices are also working to produce and finalize the Court’s rulings in the 36 cases that have been argued this term but not yet decided. And that’s assuming that there aren’t more high-profile, resource-consuming emergency applications on their way to the Court. That assumption is … not likely to hold.

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The One First “Long Read”:
The [Everything is an] Emergency Docket

Just to start with the data again, the application in the DOGE/Social Security case is the 13th from the Trump administration in 15 weeks. Even the first Trump administration, which filed more emergency applications than we’d ever seen before, filed 41 in four years. Add in high-profile applications in Trump-related and non-Trump related cases, and the upshot is a Supreme Court that has had to deal with more significant emergency applications over the last six weeks than during any prior six-week period—even the period leading up to the 2020 election (the only remotely apt comparison). What’s more, unlike the 2020 election, the prompt for the current flurry of applications isn’t a fixed date that’s quickly approaching; every week brings with it controversial new actions by the Trump administration and new lawsuits challenging those actions.

The (consistently high) volume of high-profile emergency applications matters without regard to the substance of each dispute because, to all appearances, the Court gives full review to every application from the federal government; I can’t remember the last time a DOJ application was denied by a single justice “in chambers.” In other words, these are massively time-consuming matters even when they’re denied without any opinions. When the justices are writing, and especially when there’s a majority opinion, that requires even more resources. (And, to date, there’s been at least some written analysis accompanying all but one of the rulings on Trump-related applications.³)

None of this would matter, of course, in a world in which the Court was looking for work. But at least based on the justices’ own public accounts, they’ve been busy with the merits docket as well—which has no fewer cases on it this term than it’s had each of the previous five. Thus, the unprecedented number of major emergency applications raises issues not just about how quickly the justices are being asked to weigh in on so many different high-profile matters, but about what else is getting short shrift as a result.

Let’s suppose, then, that this many emergency applications is bad for the Court, especially if this frequency persists. Of course, the Trump administration could slow down the pace of its legally controversial actions, and lower courts could block fewer of them. But assuming neither of those outcomes is likely, is there anything the Court can do to tamp down the volume and intensity of these fast-moving disputes? My own view is that there are two possible things the justices might consider—and one thing that they might already want to do that will almost certainly be counterproductive.

First, kick more of these cases to the merits docket. Unlike, say, the COVID-era emergency applications (where the ruling at the emergency application stage tended to effectively end the litigation), most of these cases, or at least the questions they present, are necessarily going to make their way back to the Court at some point. If the Court knows that it is eventually going to have to decide on the merits some of the questions coming up at the emergency application stage (including procedural questions like which suits must be brought in the Court of Federal Claims, and substantive questions like whether the Alien Enemy Act can even be invoked against Tren de Aragua), there may be more of an argument for full briefing and argument now rather than later. Such rulings will not only provide guidance to lower courts in related cases (perhaps pretermitting the need for second-generation emergency applications), but they might also mitigate some of the critiques of the Court’s written explanations in the Trump-related applications to date.

Second, decide some of these cases in chambers. As I’ve noted before, the historical model for emergency applications was one in which relief was usually denied or granted “in chambers,” even in high-profile cases. It’s been more than a decade since the justices would regularly grant emergency relief in chambers, but it might be worth considering whether the relatively less-divisive applications (whether because they’ll be denied or because they’ll be granted) can and should be resolved by circuit justices, rather than the full Court. This would not only divide the labor and spread it around, but it might also help to convey to the government which cases it shouldn’t be bringing to the Court—where summary, in-chambers denials could be used as a not-so-subtle message to DOJ to be a bit more discerning.

Third, don’t view the elimination of universal injunctions as a solution. Whatever the merits of the first two possible shifts, there’s one that the justices may well be considering that, in my view, would be a profound mistake: It’s possible that the reason why the justices are hearing argument in the birthright citizenship cases on whether to limit or eliminate “universal” injunctions is because of a view that, without universal relief, fewer lower-court rulings would require the Court’s emergency intervention.

If this is part of the calculus in the birthright citizenship cases, it strikes me as deeply myopic. Consider, in this regard, the Alien Enemy Act cases. One of the most significant consequences of the Court’s April 7 ruling in the J.G.G. case was to preclude a single, nationwide lawsuit to resolve the substantive and procedural issues arising from the Trump administration’s attempt to use the AEA to summarily remove large numbers of Venezuelan nationals. The result has not been orderly litigation in multiple district courts, but rather chaos—with the government seeking to exploit the different scope of different district court rulings to try to get away with using a statute no court has upheld, and to provide less process than J.G.G. requires. That behavior by the government has already required the justices to step back in—just 12 days after J.G.G. There’s no reason to think that the government wouldn’t likewise try to exploit a litigation landscape in which universal relief is no longer available (or, at least, highly circumscribed).

Ultimately, the Court would be well served to take a moment and think through how it can and should address the recent flood of emergency applications in a world in which that becomes the new normal. And there are small but significant steps that the justices could take to reduce at least some of the pressure on the emergency docket. But the Court ought to think carefully about how it tries to lower the temperature of emergency litigation involving the Trump administration; as the AEA litigation demonstrates, limiting universal relief might have the opposite effect.

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SCOTUS Trivia: The Latest Oral Argument Since 2009

Next Thursday’s oral argument on the birthright citizenship emergency applications will not just be only the fourth oral argument before the full Court on an application since 1971; it will be the latest oral argument in a Supreme Court term since OT2008—when the Court heard re-argument in Citizens United on September 9, 2009. (The last arguments during the unusual May 2020 session were on May 13.)

In case you were wondering, as I noted in an earlier issue, the last June argument was in 1998; the last July argument was in 1974; and the last August argument was in 1958. Given everything that’s already before the Court, and what may still be coming, it’s quite possible that at least some of these records might have to be updated before OT2024 formally concludes on October 5.

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1. Last fall, an administrative stay from Justice Alito in the Horseracing Integrity & Safety Authority case remained in place for 35 days before the full Court granted a stay pending appeal. But that may have had something to do with the other non-delegation cases the justices were considering at the same time. Most of the administrative stays we’ve seen in the last decade have lasted from 2-12 days.

2. Although some right-wing commentators have made noise about Justice Jackson taking three days to call for a response (and then giving the respondents a week within which to respond), there are lots of reasons why it might take the justices a couple of days to sort out whether to do so. To take two examples from earlier this term, in the probationary employees’ case, Justice Kagan called for a response three days after the application was filed. And three days was also the amount of time that elapsed in January between the Biden administration’s application in the Corporate Transparency Act case and Justice Alito’s call for a response. As for claiming that a week is an unusually long response period, (1) that’s just not true historically; (2) three different justices gave the respondents in the birthright citizenship cases 22 days to respond; and (3) the extent to which the Court is inundated with these requests may also be pushing the justices toward longer windows.

3. The only exception is the Court’s second ruling in the Hampton Dellinger case—when the Court dismissed the application as moot.