The Supreme Court has been battered in the past three years—by the Merrick Garland blockade, Mitch McConnell’s electoral weaponization of the nomination system, and the Brett Kavanaugh debacle; by President Donald Trump’s pointed attacks on “so-called judges,” on the chief justice of the Supreme Court, and on what he calls, in scare quotes, the “independent judiciary.” It would be odd if that process made no change in how the Court sees itself—all institutions, after all, inevitably evolve over time. Add two new justices who owe their elevation to Trump and the table is set for rapid, unpredictable transformation.
What role does the Court have in the Trump era?
These musings take on new urgency after the Court’s decision Wednesday to allow the administration to implement its new, restrictive rules for amnesty applications at the southern border. That decision was both premature and unnecessary, and it is part of a troubling pattern of deference to Trump’s wishes.
Here’s what I mean. In July, the administration announced new rules that forbid any person crossing the Mexican border to apply for asylum in the United States—unless they have formally requested, and been denied, asylum in Mexico first. Obviously, this rule does not apply to Mexican nationals seeking protection from their own government; but everyone else—Central Americans or refugees from elsewhere in the world—must first apply in Mexico and await a decision. This will have an immediate and sharp impact on asylum applicants who arrive at the border and find the rules have changed since they set out.
Such a rule might or might not be a good idea; but it seems to conflict with the Immigration and Nationality Act, which provides that “any alien who is physically present in the United States or who arrives in the United States … may apply for asylum,” and makes an exception only for “aliens … firmly resettled in”—not just passing through—“another country” before arrival. Federal District Judge Jon S. Tigar enjoined the policy across the country, concluding that it probably violated the statute, that the Department of Homeland Security had probably violated required procedures in adopting it, and that the decision to impose it flew squarely in the face of the record evidence and thus was probably “arbitrary and capricious.” This was only interim relief; Tigar set the case for trial. The Ninth Circuit then reviewed his nationwide injunction and modified it, meaning Tigar’s order would apply only to border areas in the Ninth Circuit—California and Nevada.
The appellate court then—as is routine—sent the case back to Tigar’s court for gathering of evidence. After another hearing, Tigar concluded that the immigrant-aid organizations who are plaintiffs had demonstrated they would suffer immediate injury if the policy were not stayed across the entire border. On September 9, he reinstated the nationwide injunction.
The government then did something that until recently was unusual: It immediately asked the Supreme Court to lift the injunction before the Ninth Circuit could hear a new appeal.
The Court granted that request last week, allowing the new policy to go into effect everywhere. While the appeal winds its way up, asylum seekers will be barred if they have passed through Mexico. And the Court has given a broad hint about how it will decide the issue when it comes up again. Until recently, such “emergency” action—proceedings in which the Supreme Court reaches down to abort or alter ongoing litigation—was pretty unusual. Now, Justice Sonia Sotomayor wrote in a dissent to the asylum order, “it appears as if the mechanism is a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively.”
To buttress her point, Sotomayor cited a new study by the University of Texas law professor Stephen Vladeck called “The Solicitor General and the Shadow Docket,” which will be published in the Harvard Law Review this fall. (A preliminary version is available here.) Vladeck, who is not only an acute Court watcher but a sometime advocate, suggests that the Court’s treatment of the government’s “emergency” motions has changed since Trump became president.
These motions take three forms: Applications for an “emergency stay” of a lower court’s order, bypassing the normal appeals process; petitions for “cert. before judgment,” which bypass the lower courts and move the case directly to the high court’s docket; and petitions for a “writ of mandamus,” which would order a lower court to do something it has refused to do. Vladeck went through the past two decades of order lists; his findings are striking.
- Under George W. Bush, the government in eight years asked for stays only five times; for “cert. before judgment” once; for mandamus, not at all.
- Under Barack Obama, the government in eight years petitioned for stays three times; “cert. before judgment” three times; and mandamus not at all.
- Under Trump, in less than three years, the government has asked for stays 21 times; “cert. before judgment” nine times; and mandamus three times.
The Trump administration seems to regard “extraordinary relief” from the high court as nothing more than its due. While the Court has not granted relief each time it has been sought, the government has gotten much of what it wants in high-profile cases such as the “travel ban,” the transgender military service ban, and the asylum rule. And, as Vladeck pointed out, until last week no one on the Court had even suggested that the government was abusing these procedures.
Sotomayor’s dissent breaks the silence. But the majority, and in particular Chief Justice John Roberts, have stayed mum, suggesting to Vladeck that the Court has shifted its view of emergency motions. “That silence,” Vladeck told me in an interview, “is certainly resonating in the Solicitor General’s office”—meaning that the government may now feel secure in asking the high court to rein in judges below.
One common response to Vladeck’s statistics is that the Court’s aggressiveness has been spurred by an increase in so-called nationwide injunctions issued by district judges. “That’s way too easy,” Vladeck said. Although there has been an increase in such injunctions (it began in the Obama years), many emergency stays have been issued in cases where no nationwide injunction is at stake, or in more or less routine disputes over “discovery,” the information the government must provide when it is sued. To Vladeck, the real change is that the new conservative majority is willing to in essence decide the cases before they are briefed or argued—to predict that the government will win when the case finally reaches them, and thus should have its way in the interim.
In the article, Vladeck points out that one of the factors a court must decide is whether either party will suffer “irreparable injury”—either because an injunction is granted, harming the defendants, or denied, harming the plaintiffs. Thus, in a suit against the government, courts must balance the damage to the government caused by the delay of a possibly lawful policy against the harm to plaintiffs caused by being subjected to a possibly unlawful action. Under Trump, the government seems to be suffering all the harm. Vladeck argued that the Court should explain this shift. “If what’s going on in these cases is that the majority is no longer interested in considering the harm that these policies are—or could be—inflicting while they are in force, it would behoove them to say so,” he told me.
The government’s use of these procedures smacks of entitlement, of a sense that Republicans went to great trouble to tilt the Court in their favor and should now reap their reward. Similarly, some conservatives have muttered that lower courts are wandering out of their lanes, with one Trump defender attacking anti-administration rulings as “the judicial resistance.” Indeed, in a surly dissent in the census case last June, Justice Clarence Thomas branded District Judge Jesse Furman, who had ruled against the government at trial, “a judge predisposed to distrust” the administration. Thomas also claimed Furman had “create[d] an eye-catching conspiracy web” out of unrelated facts. As judicial conduct used to be measured, it was a shocking breach of protocol. Yet Thomas’s opinion was joined by Trump’s two appointees, Neil Gorsuch and Brett Kavanaugh.
Which brings us back to my initial question. What is the Supreme Court today, in 2019? I fear it has taken on the role of enforcing Trump’s will against fellow judges.