The Supreme Court is granting certiorari "before judgment" more than ever before. That may be better than the alternatives, but is it healthy in the long term?
"Again, I don’t think these costs necessarily outweigh the benefits in individual cases. That may be especially true in the TPS cases, where part of the justification for cert. before judgment wasn’t as an alternative to staying the district court’s rulings, but because of the significant uncertainty in the lower courts across a large number of cases other than the Haiti and Syria disputes. And yet, it’s worth closing by underscoring the source of that uncertainty, i.e., the Court’s own unsigned, unexplained grants of stays last May and October in the Venezuela TPS case—and confusion about whether the Court was expressing a view on the jurisdictional question, the substantive merits with respect to the Secretary’s legal authority, or the Venezuela-specific facts (to say nothing of confusion over the precedential force in other TPS cases of the Court’s unexplained interventions in the Venezuela dispute)."
With regard to the TPS cases, the SCOTUS process (if it can be dignified with that description) sounds opaque at best, sloppy and callous at worst...
Real people will have to grapple with real consequences. Sometimes I wonder if the justices are so blinded by self-regard that they forget that simple truth.
Grants of certiorari before judgment presumably provide insights into what Justices perceive as issues that deserve their attention as matters of higher than “normal” urgency - whatever “normal means these days – and hence the biases that like all human beings affect their decisions no matter how much they or we may protest and argue that we are only influenced by verifiable facts and iron clad arguments. This Court is however also noteworthy by its failure (in my opinion) to act swiftly to deal with situations in which people are suffering or will suffer harm unless, for example, the federal Government is told to stop what the DHS is doing.
I note also Professor’s Vladeck’s news that maybe, just maybe, Chief Justice Roberts is finally waking up to the dangers of personally directed hostility towards individual Judges at any level in the judiciary. The most influential and persistent offender is of course President Trump. The Chief Justice has now been a target himself (as one of the Justices rejecting the President’s tariff polices) of “unfriendly” comments emanating from the White House. Will this personal experience finally make him recognize that the President and his sycophantic appointees are no more to be trusted and believed than Vladimir Putin should be if he appeared as an advocate for a plaintiff or defendant in a case before the Court?
My overall impression of this Supreme Court, especially its usual majority, is that it is in as much of a shambles in terms of consistency, clarity and cognitive consonance with respect to principles and goals as the foreign policies of the US. I refer to the increasingly self-contradictory statements about the purpose of the Iran War, especially those of the hapless Secretary of State whose sorry mien is evident in his many appearances alongside or just behind the President.
P.S. I appreciate Professor Vladeck’s partial quote from the British TV series House of Cards, the inspiration of the US series with the same name. The complete quote is, "You might very well think that; I couldn’t possibly comment,” which is meant to confirm information while maintaining plausible deniability. A tactic that is indispensable for anyone working for the President or his sycophants who wishes to retain any vestiges of integrity
I have a question/comment for this community: it doesn’t seem like the Trump administration is abiding by any — or the majority— of the legal rulings that have gone against them. This has prompted me to pay less attention to the legal arguments against their policies/actions because they just seem to be ignoring the courts anyway. I’m curious how others feel. I know my response is not the way to go; but do you see a time when Trump and his cronies will face some kind of legal reckoning? Are you worried that this administration has proven that the courts are incapable of holding them — and future administrations — to account?
Can the Supreme Court grant cert before judgment of a federal court of appeals reviewing an Article I Court? Does Tidewater and Ortiz implicitly say yes? For instance, could the Court grant cert before judgment of the Third Circuit (Virgin Islands) or Ninth Circuit (Guam, Northern Mariana Islands) where no Article III court has reviewed the case?
"Again, I don’t think these costs necessarily outweigh the benefits in individual cases. That may be especially true in the TPS cases, where part of the justification for cert. before judgment wasn’t as an alternative to staying the district court’s rulings, but because of the significant uncertainty in the lower courts across a large number of cases other than the Haiti and Syria disputes. And yet, it’s worth closing by underscoring the source of that uncertainty, i.e., the Court’s own unsigned, unexplained grants of stays last May and October in the Venezuela TPS case—and confusion about whether the Court was expressing a view on the jurisdictional question, the substantive merits with respect to the Secretary’s legal authority, or the Venezuela-specific facts (to say nothing of confusion over the precedential force in other TPS cases of the Court’s unexplained interventions in the Venezuela dispute)."
With regard to the TPS cases, the SCOTUS process (if it can be dignified with that description) sounds opaque at best, sloppy and callous at worst...
Real people will have to grapple with real consequences. Sometimes I wonder if the justices are so blinded by self-regard that they forget that simple truth.
Grants of certiorari before judgment presumably provide insights into what Justices perceive as issues that deserve their attention as matters of higher than “normal” urgency - whatever “normal means these days – and hence the biases that like all human beings affect their decisions no matter how much they or we may protest and argue that we are only influenced by verifiable facts and iron clad arguments. This Court is however also noteworthy by its failure (in my opinion) to act swiftly to deal with situations in which people are suffering or will suffer harm unless, for example, the federal Government is told to stop what the DHS is doing.
I note also Professor’s Vladeck’s news that maybe, just maybe, Chief Justice Roberts is finally waking up to the dangers of personally directed hostility towards individual Judges at any level in the judiciary. The most influential and persistent offender is of course President Trump. The Chief Justice has now been a target himself (as one of the Justices rejecting the President’s tariff polices) of “unfriendly” comments emanating from the White House. Will this personal experience finally make him recognize that the President and his sycophantic appointees are no more to be trusted and believed than Vladimir Putin should be if he appeared as an advocate for a plaintiff or defendant in a case before the Court?
My overall impression of this Supreme Court, especially its usual majority, is that it is in as much of a shambles in terms of consistency, clarity and cognitive consonance with respect to principles and goals as the foreign policies of the US. I refer to the increasingly self-contradictory statements about the purpose of the Iran War, especially those of the hapless Secretary of State whose sorry mien is evident in his many appearances alongside or just behind the President.
P.S. I appreciate Professor Vladeck’s partial quote from the British TV series House of Cards, the inspiration of the US series with the same name. The complete quote is, "You might very well think that; I couldn’t possibly comment,” which is meant to confirm information while maintaining plausible deniability. A tactic that is indispensable for anyone working for the President or his sycophants who wishes to retain any vestiges of integrity
I have a question/comment for this community: it doesn’t seem like the Trump administration is abiding by any — or the majority— of the legal rulings that have gone against them. This has prompted me to pay less attention to the legal arguments against their policies/actions because they just seem to be ignoring the courts anyway. I’m curious how others feel. I know my response is not the way to go; but do you see a time when Trump and his cronies will face some kind of legal reckoning? Are you worried that this administration has proven that the courts are incapable of holding them — and future administrations — to account?
I've written about this exact mentality, and why it's both inaccurate and dangerous, before.
See, e.g.: https://www.stevevladeck.com/p/bonus-176-law-lawlessness-and-doomerism
Can the Supreme Court grant cert before judgment of a federal court of appeals reviewing an Article I Court? Does Tidewater and Ortiz implicitly say yes? For instance, could the Court grant cert before judgment of the Third Circuit (Virgin Islands) or Ninth Circuit (Guam, Northern Mariana Islands) where no Article III court has reviewed the case?
I don't see why not, especially after Ortiz.