| As most folks paying attention this year appreciate, President Donald Trump has been issuing Executive Orders that, taken as a whole, seem unprecedented in their number, scope, and constitutional aggressiveness. Federal courts, in which the lion’s share of the legal challenges to these Orders have been filed, have been playing catch up in this regulatory-blitzkrieg environment—a game to which the ordinarily deliberate pace of judicial decisionmaking may be ill suited. Thus far, district court judges have issued scores of temporary restraining orders and preliminary injunctions against the government, a dozen or so of which have been undone by the Supreme Court. As the Supreme Court has made clear (and as one of us explored in an earlier Verdict column), the interim status quo that obtains as a case works its way through the federal courts—that is, whether the government’s policy will be blocked or enforced during the interim period before complete resolution of the legal merits—is often a matter of critical importance, since justice delayed (either to individual litigants whose rights are asserted or to the government whose prerogatives are being limited) can, in practice, be justice denied. As the Court itself has rightly (if only recently) observed, there is usually irreparable harm on both sides of a preliminary-injunction request against the government: irreparable harm to the plaintiff if an injunction is wrongly denied but also irreparable harm to the government and the people it represents if an injunction is wrongly issued. Often times, therefore, the question of what the interim status quo should be turns on which side is likely to win on the merits in the end, something we can predict even as we hold open the possibility that a challenge may look stronger or weaker as the case proceeds. | | One takeaway from the Supreme Court’s (controversial) intervention to undo a non-trivial number (but still small minority) of lower court preliminary injunctions this past term is that the Court seems to think, again rightly, that its own view of the merits is the one that counts. To the extent that federal district courts are trying diligently and smartly (as we believe, given the structure of the Constitution’s Article III, they should in almost all instances) to anticipate and predict what the Supreme Court would think about the legal merits of the challenges being brought, then the Supreme Court would have no occasion to step in. (And, as intimated above, in the vast majority of instances, the preliminary injunctions against the administration have remained intact, either because the federal government has not found it worthwhile to ask the Supreme Court to intervene or because the Justices have declined such an invitation.) But to the extent that (some) district court judges are out of step with the Court (either because of a misguided belief that they should not act as proxies for the Court or because they simply aren’t careful about applying the Supreme Court’s previous and evolving doctrine), the Court is not unjustified in seizing the helm. This is not to say the Court is necessarily right in its substantive views of who will or should likely win or lose in any given case at the end of the judicial day (we ourselves disagree with some of the Court’s substantive readings of the Constitution), but it is to say the Court is well within its rights to rein in district court judges who may have stepped out of line. In this regard, it is noteworthy that although two-thirds (6/9) of the Supreme Court’s Justices were appointed by Republican Presidents, and about 50% of the U.S Courts of Appeals Judges were appointed by Republican Presidents (87 Democratic appointees and 86 Republican appointees), 61% (381/627) of the nation’s district court judges (who make the initial and very important decision about whether to grant or deny preliminary injunctive relief) were appointed by Democratic Presidents. These differences may be a consequence of the fact that, going back to January 1993 (or 32.5 years) a Democrat has been in the White House for about 62% (20/32/5 years) of that time, and the (in)frequency of Courts of Appeals and Supreme Court vacancies (along with hardball in the U.S. Senate at key moments) accounts for the fact that Republicans have fared better with those smaller denominators. | | Yet even as the Supreme Court may be on firm ground in ensuring that its (albeit provisional) views of the merits of the momentous cases in play this year are the ones that guide the interim status quos, critics are justifiably concerned (as one of us explained here a few weeks ago) about procedural shortcuts (absence of full briefing and, in most cases, any oral argument, lack of sufficient time for broader amicus and academic input, and the absence of written opinions that contain detailed justifications) as well as sometimes seemingly final merits resolutions on the basis of truncated procedures and limited factual records that exist in most of the interim-relief cases. Defenders counter that, even if procedural shortcuts are unfortunate, they are unavoidable if the Court is to act quickly in order to decide what the proper interim status quo should be. | | All of which brings us to a potential device that Justice Brett Kavanaugh has floated in a few recent cases: more regular granting by the Court of “cert. (or certiorari) before judgement.” The core feature of this device is that the Court takes a case to rule, finally, on the merits, after a decision by the district court, but without the benefit of review and judgment by the court of appeals. The downside, and a reason cert. before judgment has not historically been commonly granted, is that the Court loses whatever insight the court of appeals may have provided in reviewing the district court ruling. But the upside is that the case can move from the district court to and through the Supreme Court a year or more (the time it generally takes a fully briefed and argued case to be decided by a court of appeals) earlier than would otherwise be the case. And that time savings would reduce the period during which there is any interim status quo at all; the earlier the Court rules decisively on the merits, the less the risk of harm to either party by a “wrong” decision during the interim period. To repeat, “cert. before judgment” allows the Supreme Court to essentially cut the court of appeals out of the loop, saving time, and shortening the “interim” period during which one party or the other may be wrongly (and we define “wrong” here as deviation from the ultimate outcome) treated. | | The Supreme Court’s Rules of Procedure (promulgated by the Justices themselves) set the bar for cert. before judgment at a seemingly high level. Supreme Court Rule 11 says: “A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” The Gressman treatise on Supreme Court practice (the most authoritative practice guide to understanding the Court’s Rules) also articulates a high bar: quoting from then-Justice Rehnquist in an in-chambers opinion, it describes cert. before judgment as “an extremely rare occurrence.” | | Yet these limitations by the Court on the cert.-before-judgment device seem completely self-imposed. The relevant congressional statute, 28 U.S.C. § 2101(e), is much more capacious, and provides simply that: “An application to the Supreme Court for a writ of certiorari to review a case before judgment has been rendered in the court of appeals may be made at any time before judgment.” (28 U.S.C. § 1254 similarly states that “Cases in the courts of appeals may be reviewed by the Supreme Court . . . (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree.”) And there is no doubt that, while cert. before judgment is by no means routine, the Supreme Court has made increased use of the practice in the last half dozen years. | | While we are not yet prepared to full-throatedly endorse widespread use of the cert.-before-judgment practice going forward, we do note that the definition of “imperative public importance” depends on the historical moment, and that what counts as raising a need for prompt final resolution in 2025—e.g., birthright citizenship, the extent to which a president can remove members of independent agencies, the rights of persons the president wants to deport, and other issues generated by novel and far-reaching executive orders—might be very different than what counted a decade ago. | | Moreover, to the extent that there is dissatisfaction with current emergency-docket practices, reducing the period during which an interim status quo reigns is a good thing. On top of that, notice that: | (1) Cert. before judgment does not shortcut the district court’s factfinding function; it kicks in only after final judgment in the district court and an appeal to the Court of Appeals has been sought. So, the relevant facts will have been found, and the only questions to be resolved are interpretations of law or application of law to facts, tasks the Supreme Court is supposed to be good at. (Relatedly, the availability of cert. before judgment may reduce the lawless temptation the Court has displayed a few times last year to finally resolve merits questions before the district court’s factfinding work is finished.);
(2) Unlike current emergency-docket practices, cert. before judgment needn’t involve shortened briefing schedules. True, some famous cert.-before-judgment cases (the Steel Seizure case, the Nixon Tapes case) did involve expedited briefing, but such expedition at the Court is not inherent in the device (and in those cases was simply a function of severe exigency); even if the Court adheres to its normal schedules, it still saves a lot of time by leapfrogging the Court of Appeals;
3) Relatedly, cert. before judgment would not necessitate elimination of oral argument; and
(4) Because the Court itself would be adhering to its normal timelines, we could expect written opinions of the same quality as non-emergency cases more generally.
| | Still, cert. before judgment may not be advisable for all cases. The key question is what is lost in cutting out the courts of appeals. In some settings, appellate court percolation may be helpful. Novel issues that the Court hasn’t already thought or written carefully about may be less apt for cert. before judgment. In this regard, for example, we think the Court prioritizing final resolution of the (seemingly sealed) fate of Humphrey’s Executor may be different than foregoing appellate percolation as to new questions concerning the free-speech rights of foreign students. And, importantly, cert. before judgment does not inevitably and completely foreclose percolation. Other courts of appeals, in other cases (beyond the case in which cert. before judgment is sought), might have weighed in (or are in the process of weighing in) on the same or similar issues presented in the case in which cert. before judgment is granted. (Courts of appeals also do not inevitably provide beneficial analysis: they might summarily affirm the district court judgment or provide only bare-bones explanations for their decisions—and perhaps many months after the appeal was submitted.) | | Finally, as professors we feel obliged to mention that cert. before judgment would often afford less time for the development of careful scholarship and other commentary (that often precede useful amicus briefs), and that downside can matter. In the Moore v. Harper so-called “independent state legislature” dispute, for example, we think it helped the Court significantly that the academic community had time to generate scholarship between 2020 (when the legal issue was prominently raised) and 2023 (when the Court resolved it). |
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