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.
W/r/t the “delay” in Libby: Note that, although the application was filed on 4/28, it wasn’t docketed until 4/30, and then the order setting the response deadline was entered the next day. It appears that the docketing process was the main source of delay (in setting the response deadline at least).
I’m not sure what happened, since as you can see from the dockets collected here, emergency applications seem to be routinely docketed the same day they’re filed.
Invariably, when there is a delay between filing and docketing, it's because the filing party has done something wrong. Yet further reason why it's fairly ridiculous that folks have tried to make a big deal out of Justice Jackson's (seemingly by-the-book) actions here...
For ordinary (non-emergency) applications, a delay of a couple/few days between filing and docketing seems to be normal. See this example: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/24a706.html. It’s similar to cert petitions, where there’s a delay between filing and docketing because the hard copies need to make their way to the Court and be processed by the Clerk’s Office before the petition is placed on the docket.
I assume there’s a process for expediting that process when the application requests emergency relief. Maybe counsel didn’t use that here.
The thing I don't understand is why they don't routinely deny emergency applications when there is in fact no emergency. Is there some legal definition of "emergency" that is different from the lay persons understanding?
Here's what I've never understood about the increasing use of the "shadow docket" for emergency requests. Maybe Prof. Vladeck or someone else can help me out:
Why does the Supreme Court increasingly allow parties -- and particularly the federal government, these days -- to leapfrog over the courts of appeals with claimed emergencies? Shouldn't these so-called emergency applications be submitted to the courts of appeals first, and only then to the Supreme Court?
In the usual appeal from a district court to a court of appeals, a request for a stay pending appeal must be submitted first to the district court; only then, once the request is denied, can it be presented to the court of appeals. Courts of appeals follow this rule strictly, regularly declining to entertain requests for stays before the district courts have heard them -- and that happens even though it's practically a dead certainty the district court will deny the request (since it's the rare district court that will concede its judgment is reasonably likely to be overturned).
If the Supreme Court slapped down more of these emergency applications, parties would learn pretty quickly that bringing them is pointless, unless the emergency is so real and the risk of genuine harm so great that the court of appeals should be skipped. That will be rare. By hearing and even granting these applications as often as it does, the Court sends the message that vaulting over the courts of appeals is an acceptable practice. Seems to me that's not healthy for the Court or for the judicial system as a whole.
I am a UK layman watching with despair the USA. Your information gives me a glimmer of hope until he manages to nullify all courts or take them over. I believe this is the plan.
It seems like an obvious answer here could be the Court establishing – or perhaps refining – both its procedures and criteria for the emergency docket as a whole, and/or issuing some substantive AND unambiguous rulings for the cases with the least merit (if only to settle them). They need to bring order to chaos, in a nutshell, and the chaos seems likely to continue unabated unless addressed.
OTOH I don't recall us covering SCOTUS docket protocol in civ pro, so I'm entirely unclear how this would work. (But I'm assuming it's likely up to the Court's discretion, not the Executive's.)
As for the AEA cases: obviously we knew the Trump administration was ignoring judges, but a Post article yesterday made it clear how *extremely* brazen their efforts were. Here's a tidbit outlining the timing of events on March 15:
"At 5 p.m. in D.C., the hearing began in Boasberg’s courtroom.
When Boasberg asked a government attorney whether deportations under the act were imminent, the attorney, Drew Ensign, said he did not know...
Boasberg suggested a brief pause to give the government’s attorneys time to gather information before he made a decision.
The hearing adjourned at 5:22 p.m.
'See everybody in 38 minutes,' Boasberg said.
Four minutes later, the first plane departed from the Texas airfield.
The second followed 19 minutes after that.
By the time court reconvened 15 minutes later, the two planes were already flying off the coast of Mexico over international waters, according to flight data." (Paragraph spacing taken from the original.)
How is this *not* the Trump administration spitting in the judicial branch's face? Deportations w/o due process are bad enough, but this kind of brazen middle-finger-to-the-face rebellion to an equal branch of government is as unconscionable as it is unacceptable.
I suspect the overall tl;dr answer is "Roberts needs to put his foot down," but I've said it before: Trump acts like a petulant preschooler. (Or toddler, depending on the occasion.) Toddlers need boundaries. In this case the Supreme Court may be the lone entity that can set firm ones.
And the Court clearly seems to need stricter guidelines for defining "emergencies," especially considering all of Trump's are either partially pretextual or entirely so. I'd be curious if Prof. Vladeck or others have any ideas on that front.
Project 2025 calls the plan “Swamp the Zone” Trump must overwhelmingly produce Executive Orders rapidly to destabilize the system. His deliberate effort of ignoring the ‘rule of law’ is part of the slow-walk to a dominant one-party, authoritarian oligarchy. He must finish before 2026 midterms. He hopes to destabilize the US government to a point where he can declare a national emergency- his MAGA Congress & Supreme Court will deliver his ‘special executive powers. (Hitler playbook)?
While this may be the plan, it's no more likely to succeed today than it was a year ago. He's already pushing the limits of "slow-walking" cases & openly defying the Supreme Court.
No, we're not yet at the end of the Republic. And Trump will most likely come up severely short before the 2026 midterms, prompting an even larger blue wave this time.
Is it correct that the only application for injunction filed an against the Administration has been AARP, which remains pending (and yielded the “midnight order” against removals)?
Steve says the Court should not consider doing away with universal injunctions because the government might game the system. Setting aside the fact that the ACLU is gaming the system by bringing cases in San Francisco and DC. The entire concept of a universal injunction is frankly unconstitutional. The Constitution limits the federal judicial power by requiring real cases and controversies with real people who actually have been injured such that they have standing. The only exception to this rule is for the district court to certify a class, which has not been done in most of these cases. This unconstitutional action by federal district judge must be stopped.
What makes relief that benefits non-parties unconstitutional? If a court strikes down a statute on its face, so that it can't constitutionally be applied to anyone else, how is that different?
But they have not in most cases stricken the statute on its face. These are injunction entered a day or two after a case is filed pending a trial. Also holding a statute unconstituional on its face, as opposed to as applied under the facts of the case is extremely rare.
Your claim is that relief that benefits non-parties is unconstitutional. Facial challenges, however rare, are another example. If you think those are okay but universal injunctions aren’t, I’m curious as to what distinguishes them analytically.
Injunctions and judgments are entirely different forms of relief. A judgment after a trial on the merits that a statute is unconstitutional on its face is a "legal" remedy. There may be damages which is the state or the federal government has to pay and the state or federal government are expected to honor the judgment. If it doesn't, then the aggrieved parties can ask for an injunction which is an "equitable" remedy. There are no such cases I am aware of on the emergency docket. When I practiced law no trial judge would declare a law unconstitutional. They always said that is above my pay grade and you need to take that up with the appellate courts. Now preliminary injunctions with no trials and literally hours to repond are handed like cotton candy at a political rally on the grounds that a trial judge who never conducted a trial thinks they are unconstitutional simply because they disagree with the policy of the administration. This is not an excercies of the limited judicial power under the constitution. It is a raw political power grab.
Trial judges have been regularly issuing injunctions against unconstitutional state and federal laws since the early 1900s. Indeed, that’s *why* Congress started providing for three-judge district courts in 1910. I can’t speak to your practice experience, but district courts are simply doing their jobs in these cases under unprecedented circumstances—which may be why so few of these injunctions have been stayed or reversed by appeals courts.
It bears repeating that what the Trump administration has attempted to do with EOs is completely unprecedented. I guess you could argue, and the Republicans did, that Obama's DACA EO was similar presidential overreach and a court agreed. However it was also clear to everybody that the harm to the states for allowing DACA immigrants to stay was minimal while the harm to the people covered by DACA was immense.
Emergency, my ass. Trump does know he must abide the Constitution, and he took an oath to do so twice. He cannot accept his court-proven failures to honor the Constitution. So he “Don’t know!”
Trump lies. We know that is true. He is taking this country into fake emergency-driven financial ruin as he steals left and right. We watch him do it. We can stop some of the carnage with a sound, balanced budget, and a law that nixes deficit spending.
Short term deficit spending is appropriate when the economy is performing below potential. The problem is that as far as the GOP is concerned, it is always a good time to reduce taxes on the wealthy. Deficit, recession or inflation doesn't matter to them. The only goal is to make sure their big donors pay as little as possible.
W/r/t the “delay” in Libby: Note that, although the application was filed on 4/28, it wasn’t docketed until 4/30, and then the order setting the response deadline was entered the next day. It appears that the docketing process was the main source of delay (in setting the response deadline at least).
I’m not sure what happened, since as you can see from the dockets collected here, emergency applications seem to be routinely docketed the same day they’re filed.
Invariably, when there is a delay between filing and docketing, it's because the filing party has done something wrong. Yet further reason why it's fairly ridiculous that folks have tried to make a big deal out of Justice Jackson's (seemingly by-the-book) actions here...
For ordinary (non-emergency) applications, a delay of a couple/few days between filing and docketing seems to be normal. See this example: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/24a706.html. It’s similar to cert petitions, where there’s a delay between filing and docketing because the hard copies need to make their way to the Court and be processed by the Clerk’s Office before the petition is placed on the docket.
I assume there’s a process for expediting that process when the application requests emergency relief. Maybe counsel didn’t use that here.
The thing I don't understand is why they don't routinely deny emergency applications when there is in fact no emergency. Is there some legal definition of "emergency" that is different from the lay persons understanding?
Here's what I've never understood about the increasing use of the "shadow docket" for emergency requests. Maybe Prof. Vladeck or someone else can help me out:
Why does the Supreme Court increasingly allow parties -- and particularly the federal government, these days -- to leapfrog over the courts of appeals with claimed emergencies? Shouldn't these so-called emergency applications be submitted to the courts of appeals first, and only then to the Supreme Court?
In the usual appeal from a district court to a court of appeals, a request for a stay pending appeal must be submitted first to the district court; only then, once the request is denied, can it be presented to the court of appeals. Courts of appeals follow this rule strictly, regularly declining to entertain requests for stays before the district courts have heard them -- and that happens even though it's practically a dead certainty the district court will deny the request (since it's the rare district court that will concede its judgment is reasonably likely to be overturned).
If the Supreme Court slapped down more of these emergency applications, parties would learn pretty quickly that bringing them is pointless, unless the emergency is so real and the risk of genuine harm so great that the court of appeals should be skipped. That will be rare. By hearing and even granting these applications as often as it does, the Court sends the message that vaulting over the courts of appeals is an acceptable practice. Seems to me that's not healthy for the Court or for the judicial system as a whole.
I am a UK layman watching with despair the USA. Your information gives me a glimmer of hope until he manages to nullify all courts or take them over. I believe this is the plan.
It seems like an obvious answer here could be the Court establishing – or perhaps refining – both its procedures and criteria for the emergency docket as a whole, and/or issuing some substantive AND unambiguous rulings for the cases with the least merit (if only to settle them). They need to bring order to chaos, in a nutshell, and the chaos seems likely to continue unabated unless addressed.
OTOH I don't recall us covering SCOTUS docket protocol in civ pro, so I'm entirely unclear how this would work. (But I'm assuming it's likely up to the Court's discretion, not the Executive's.)
As for the AEA cases: obviously we knew the Trump administration was ignoring judges, but a Post article yesterday made it clear how *extremely* brazen their efforts were. Here's a tidbit outlining the timing of events on March 15:
"At 5 p.m. in D.C., the hearing began in Boasberg’s courtroom.
When Boasberg asked a government attorney whether deportations under the act were imminent, the attorney, Drew Ensign, said he did not know...
Boasberg suggested a brief pause to give the government’s attorneys time to gather information before he made a decision.
The hearing adjourned at 5:22 p.m.
'See everybody in 38 minutes,' Boasberg said.
Four minutes later, the first plane departed from the Texas airfield.
The second followed 19 minutes after that.
By the time court reconvened 15 minutes later, the two planes were already flying off the coast of Mexico over international waters, according to flight data." (Paragraph spacing taken from the original.)
How is this *not* the Trump administration spitting in the judicial branch's face? Deportations w/o due process are bad enough, but this kind of brazen middle-finger-to-the-face rebellion to an equal branch of government is as unconscionable as it is unacceptable.
I suspect the overall tl;dr answer is "Roberts needs to put his foot down," but I've said it before: Trump acts like a petulant preschooler. (Or toddler, depending on the occasion.) Toddlers need boundaries. In this case the Supreme Court may be the lone entity that can set firm ones.
And the Court clearly seems to need stricter guidelines for defining "emergencies," especially considering all of Trump's are either partially pretextual or entirely so. I'd be curious if Prof. Vladeck or others have any ideas on that front.
Project 2025 calls the plan “Swamp the Zone” Trump must overwhelmingly produce Executive Orders rapidly to destabilize the system. His deliberate effort of ignoring the ‘rule of law’ is part of the slow-walk to a dominant one-party, authoritarian oligarchy. He must finish before 2026 midterms. He hopes to destabilize the US government to a point where he can declare a national emergency- his MAGA Congress & Supreme Court will deliver his ‘special executive powers. (Hitler playbook)?
While this may be the plan, it's no more likely to succeed today than it was a year ago. He's already pushing the limits of "slow-walking" cases & openly defying the Supreme Court.
No, we're not yet at the end of the Republic. And Trump will most likely come up severely short before the 2026 midterms, prompting an even larger blue wave this time.
Is it correct that the only application for injunction filed an against the Administration has been AARP, which remains pending (and yielded the “midnight order” against removals)?
Steve says the Court should not consider doing away with universal injunctions because the government might game the system. Setting aside the fact that the ACLU is gaming the system by bringing cases in San Francisco and DC. The entire concept of a universal injunction is frankly unconstitutional. The Constitution limits the federal judicial power by requiring real cases and controversies with real people who actually have been injured such that they have standing. The only exception to this rule is for the district court to certify a class, which has not been done in most of these cases. This unconstitutional action by federal district judge must be stopped.
What makes relief that benefits non-parties unconstitutional? If a court strikes down a statute on its face, so that it can't constitutionally be applied to anyone else, how is that different?
But they have not in most cases stricken the statute on its face. These are injunction entered a day or two after a case is filed pending a trial. Also holding a statute unconstituional on its face, as opposed to as applied under the facts of the case is extremely rare.
Your claim is that relief that benefits non-parties is unconstitutional. Facial challenges, however rare, are another example. If you think those are okay but universal injunctions aren’t, I’m curious as to what distinguishes them analytically.
Injunctions and judgments are entirely different forms of relief. A judgment after a trial on the merits that a statute is unconstitutional on its face is a "legal" remedy. There may be damages which is the state or the federal government has to pay and the state or federal government are expected to honor the judgment. If it doesn't, then the aggrieved parties can ask for an injunction which is an "equitable" remedy. There are no such cases I am aware of on the emergency docket. When I practiced law no trial judge would declare a law unconstitutional. They always said that is above my pay grade and you need to take that up with the appellate courts. Now preliminary injunctions with no trials and literally hours to repond are handed like cotton candy at a political rally on the grounds that a trial judge who never conducted a trial thinks they are unconstitutional simply because they disagree with the policy of the administration. This is not an excercies of the limited judicial power under the constitution. It is a raw political power grab.
Trial judges have been regularly issuing injunctions against unconstitutional state and federal laws since the early 1900s. Indeed, that’s *why* Congress started providing for three-judge district courts in 1910. I can’t speak to your practice experience, but district courts are simply doing their jobs in these cases under unprecedented circumstances—which may be why so few of these injunctions have been stayed or reversed by appeals courts.
It bears repeating that what the Trump administration has attempted to do with EOs is completely unprecedented. I guess you could argue, and the Republicans did, that Obama's DACA EO was similar presidential overreach and a court agreed. However it was also clear to everybody that the harm to the states for allowing DACA immigrants to stay was minimal while the harm to the people covered by DACA was immense.
Emergency, my ass. Trump does know he must abide the Constitution, and he took an oath to do so twice. He cannot accept his court-proven failures to honor the Constitution. So he “Don’t know!”
Trump lies. We know that is true. He is taking this country into fake emergency-driven financial ruin as he steals left and right. We watch him do it. We can stop some of the carnage with a sound, balanced budget, and a law that nixes deficit spending.
https://hotbuttons.substack.com/p/where-ya-going-dems?r=3m1bs
Short term deficit spending is appropriate when the economy is performing below potential. The problem is that as far as the GOP is concerned, it is always a good time to reduce taxes on the wealthy. Deficit, recession or inflation doesn't matter to them. The only goal is to make sure their big donors pay as little as possible.