Bonus 170: Whose Judicial Overreach?

Debunking the unpersuasive (and also rather unprovable) claim that the Supreme Court's behavior on Trump-related emergency applications is largely a response to lower courts abusing their own powers.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter (and unscheduled issues like Tuesday’s on DOJ’s misconduct complaint against Chief Judge Boasberg) will remain free for as long as I’m able to do this, I put much of the weekly bonus issue behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit.

I wanted to use this week’s bonus issue to reply to a new essay by William and Mary law professor Jonathan Adler, which purports to respond to what I described as “the appeasement thesis” in a recent post of this newsletter—that at least some of the Supreme Court’s behavior on Trump-related emergency applications has reflected a desire on the part of at least some of the justices in the majority to forestall head-on confrontations with President Trump, and to take advantage of the Court’s ability to hand down un- (or thinly-)explained rulings on emergency applications that enable his behavior without having to legalize it.

In an essay for the University of Texas’s “Civitas Institute” titled “Mistaking Principle for Appeasement,” Adler takes significant exception to that argument. In his words,

The job of the courts is to determine and apply the law to the cases before them. That the executive branch may be prone to exceeding the proper scope of its authority is no excuse for the courts to do the same. Executive overreach does not justify judicial overreach—and it is hardly appeasement to conclude otherwise.

A similar (if even more aggressive) theme was embraced by Harvard law professor Adrian Vermeule in a deeply tendentious (and nuance-light) new New York Times op-ed, complaining that the only entity guilty of defying the Supreme Court are federal district courts.

As I explain below the fold, there are three rather significant problems with these arguments. The first is that Adler’s criticism is misdirected. As my original post makes clear, I was trying to describe an argument others (like University of Chicago law professor Will Baude) have been making in defense of, or at least in describing, the justices’ behavior. My own view, which is hopefully clear from the myriad issues of this newsletter that have been devoted to the subject, is that at least some of the Court’s behavior in these cases has in fact been indefensible—on procedural grounds; on substantive grounds; and no less importantly, on institutional grounds. Indeed, the purpose of my appeasement post was to criticize that perspective—not to lend credence to it.

That leads to the second, and more important point—which is the extent to which Adler’s and Vermeule’s claims require a remarkable amount of cherry-picking and/or clairvoyance. The Court has now granted emergency relief to the Trump administration 18 times (covering 16 total rulings, since three came together in the birthright citizenship decision). Even counting very generously, no more than four of those 16 rulings (25%) included some specific reference by the majority to the types of judicial power objections on which Adler’s claims (and, to a much lesser degree, Vermeule’s rant) rest. So when Adler points to examples from within that subset, that’s true so far as it goes; it just doesn’t get anywhere close to describing the overall pattern. (And all of this is before we get to examples in which the Court provided no explanation whatsoever.)

And that leads to the third problem—which is the awkwardness of law professors having to do the Court’s work for it. If there really is a meaningful disconnect between district courts and courts of appeals on one hand, and the Supreme Court on the other, there’s an obvious way for the justices to remedy such repetitive “overreach” by lower courts: they can write an opinion that explains what the overreach was—so lower courts will know going forward what not to do. Since his essay was published, Adler has elsewhere agreed that it would be better if the Court explained itself more. But he never reconciles the incongruity between the Court not having explained itself in most of these cases and his thesis: It seems impossible to “mistake principle for appeasement” when most of the decisions are devoid of principles in the first place.

Nor do either Adler or Vermeule respond to the well-taken arguments from both the dissenting justices in many of those cases and outside critics that the Court is itself engaging in judicial overreach by granting emergency relief in cases in which the government has not (and cannot) satisfy the criteria for such extraordinary interventions. It should be obvious, but I’ll say it anyway: lower-court judges aren’t the only jurists capable of overreach. I’m all for thoughtful disagreements over what the Supreme Court is up to, and Professor Adler is nothing if not thoughtful—which is more than I can say for some of the Court’s other contemporary defenders. But maybe instead of knocking down strawmen, those more inclined to give this Court the benefit of the doubt can do more to explain why the balance of the equities supported each of these grants of emergency relief—and not just why the government might be right on the merits in a hand-picked subset thereof?

For those who are not paid subscribers, we’ll be back Monday (if not sooner) with our regular coverage of the Court. For those who are, please read on.