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?
“[B]ut is it healthy in the long run?” This SCOTUS, it seems, wants to dwell in the present - screw the future! - to benefit its king. Twenty-six pre-judgement cert grants, over 30 “emergencies” responded to—is there a rush to destroy Democracy?
I really like hearing about the Supreme Court. What happens when someone ignores their orders or findings? It seems like this happens a great deal, I may be wrong but what actually happens when someone or a body ignores the court?
I'm not a lawyer, but it would help if you mentioned a few cases where you believe that someone ignored the Supreme Court's order or findings. Also: are you referring to the Trump administration, or lower court judges, or both?
One case I recall is when the Trump administration deported Kilmar Abrego Garcia to the CECOT prison in El Salvador. The U.S. Supreme Court said that the District Court's earlier order "properly requires the Government to 'facilitate' Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador." As I recall, the administration did not ignore the Court's ruling, but they played their usual games, pretending that the poor, weak United States had no influence over El Salvador. They did eventually returned Garcia to the U.S.
Thank you--this is really helpful as I try to understand these decisions. But I'm still working on it.
Would it be oversimplifying the issue to suggest that the justices don't *trust* the appellate courts' building of the record? Or--and maybe this is part of the point made here--the majority *appears* less partisan when overruling only a district court rather than the larger record pre-SCOTUS? Those were the 2 options that seemed logical to me as a reason to skip over the appellate court.
I had always kind of pictured the supremacy of the Court as if it was sitting atop a mountain of lower courts' records, surveying and examining all, and making the most informed judgment possible. Especially due to the acceleration of grants of cert. before judgment, it seems to imply that a majority already knows what it's going to do and would rather do it quickly than fairly. So, they don't grant the admin. its immediate wishes, but neither do they grant the entirety of the lower court system the courtesy of allowing it to do its job, thereby truncating the record that the lower courts are uniquely qualified to build. That doesn't seem to do much of a favor to posterity, either. Better than an outright grant of a stay, but far less helpful over time for future courts and the future of American democratic institutions. It isn't as bad as it could be, thus, "Yay." I think I get it, but I'm not feeling it.
"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
Thank you!
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.
“[B]ut is it healthy in the long run?” This SCOTUS, it seems, wants to dwell in the present - screw the future! - to benefit its king. Twenty-six pre-judgement cert grants, over 30 “emergencies” responded to—is there a rush to destroy Democracy?
I really like hearing about the Supreme Court. What happens when someone ignores their orders or findings? It seems like this happens a great deal, I may be wrong but what actually happens when someone or a body ignores the court?
I'm not a lawyer, but it would help if you mentioned a few cases where you believe that someone ignored the Supreme Court's order or findings. Also: are you referring to the Trump administration, or lower court judges, or both?
One case I recall is when the Trump administration deported Kilmar Abrego Garcia to the CECOT prison in El Salvador. The U.S. Supreme Court said that the District Court's earlier order "properly requires the Government to 'facilitate' Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador." As I recall, the administration did not ignore the Court's ruling, but they played their usual games, pretending that the poor, weak United States had no influence over El Salvador. They did eventually returned Garcia to the U.S.
"I couldn’t possibly comment"!!!!!!!
Thank you--this is really helpful as I try to understand these decisions. But I'm still working on it.
Would it be oversimplifying the issue to suggest that the justices don't *trust* the appellate courts' building of the record? Or--and maybe this is part of the point made here--the majority *appears* less partisan when overruling only a district court rather than the larger record pre-SCOTUS? Those were the 2 options that seemed logical to me as a reason to skip over the appellate court.
I had always kind of pictured the supremacy of the Court as if it was sitting atop a mountain of lower courts' records, surveying and examining all, and making the most informed judgment possible. Especially due to the acceleration of grants of cert. before judgment, it seems to imply that a majority already knows what it's going to do and would rather do it quickly than fairly. So, they don't grant the admin. its immediate wishes, but neither do they grant the entirety of the lower court system the courtesy of allowing it to do its job, thereby truncating the record that the lower courts are uniquely qualified to build. That doesn't seem to do much of a favor to posterity, either. Better than an outright grant of a stay, but far less helpful over time for future courts and the future of American democratic institutions. It isn't as bad as it could be, thus, "Yay." I think I get it, but I'm not feeling it.
Terrific as always!