Bonus 192: The Court vs. the Circuit Justice

Tuesday's ruling in the SNAP case appears to be the second example in seven months (and for quite some before that) of the full Supreme Court taking an application away from the circuit justice.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter and other unscheduled issues 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 today’s bonus issue to say a bit more about the goings-on in the SNAP case, especially Tuesday’s order from the full Court that extended Justice Jackson’s “administrative stay” (and, thus, kept on hold a district court order requiring the Department of Agriculture to fully fund the Supplemental Nutrition Assistance Program—SNAP—for November) through 11:59 p.m. EST tonight. Strikingly, Justice Jackson publicly noted in Tuesday’s order not only that she would’ve denied the extension, but that she would’ve denied the Trump administration’s application outright (and would thus have put the district court order back into effect). And in a subtle but, in my view, significant departure from the norm, the full Court’s ruling noted that “The application for stay presented to Justice Jackson is referred to the Court,” rather than the typical verbiage that we saw as recently as last Thursday’s ruling in Trump v. Orr (from which Justice Jackson dissented), i.e., “The application for stay presented to Justice Jackson and by her referred to the Court . . . .”

In other words, it at least appears, based upon these clues, that Justice Jackson refused to extend her administrative stay—and then dissented from the full Court’s decision to do so without her—because she would’ve resolved the application in full and ruled against the Trump administration. In that respect, this appears to be the second time in the last seven months that the full Court has taken a dispute away from the relevant circuit justice—when, at least going off of publicly visible clues, it doesn’t appear to have happened even once in the previous 35 years.

Below the fold, I compare Tuesday’s ruling in the SNAP case, Rollins v. Rhode Island Council of Churches, to the other recent example—A.A.R.P. v. Trump—and derive three different lessons: One about the Court’s internal procedures in these cases; one about how circuit justices tend to behave even when they are in the minority; and one about why Justice Jackson’s move on Monday, viewed through those lenses, seems especially unusual and noteworthy.

For now, the upshot is that Judge McConnell’s order mandating full payment of November SNAP funds remains on hold at least until the end of the day today. Given that the House voted last night to approve the legislation to end the shutdown, which, I gather, includes full funding for SNAP, it’s entirely possible—if not likely—that the Court will dismiss the Trump administration’s application as moot later today before that deadline comes and goes. But even if that case goes away, it’s meaningful that Justice Jackson, seemingly breaking from a fair amount of tradition, wasn’t even willing to endorse the two extra days of delay for which Tuesday’s order provided.

For those who are not paid subscribers, we’ll be back (no later than) Monday with our regular coverage of the Supreme Court. For those who are, please read on.