SCOTUSblog by Steve Vladeck 7/27/2019
By what was effectively a 5-4 vote, the Supreme Court yesterday agreed to fully stay a California district court’s injunction against President Donald Trump’s repurposing of appropriated funds to build part of his “border wall.†The Supreme Court’s summary order in Trump v. Sierra Club offered one sentence of explanation: “Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.†But the decision is part of a larger, emerging trend that I explore in a new paper, a draft of which I’ve posted to SSRN — one in which the solicitor general has been unusually aggressive in seeking emergency or extraordinary relief from the justices, and the court, or at least a majority thereof, has largely acquiesced.
As I wrote back in December, the Supreme Court has broad constitutional and statutory authority to issue emergency relief (such as stays of lower-court rulings pending appeals) or extraordinary relief (such as writs of mandamus or certiorari “before judgmentâ€). Historically, however, the justices have been loath to do so — preferring to follow regular order whenever possible, and requiring showings of true exigency and imperative to justify departures from “normal appellate practice.†And perhaps respecting and reflecting that skepticism, the solicitor general has generally been reluctant to invoke the court’s emergency and extraordinary authorities. Over the 16 years of the George W. Bush and Obama administrations, for example, the government sought a total of eight stays from the Supreme Court, asked for certiorari before judgment in four cases, and sought no extraordinary writs.
In sharp contrast, the Trump administration has repeatedly asked the court to depart from regular order. In two and a half years, the solicitor general has applied for at least 20 stays; has sought certiorari before judgment in 10 different cases, and has sought extraordinary writs against three different district court judges. Numerically, the government’s success rate is something of a mixed bag. Including yesterday’s decision, the Supreme Court has granted nine of the government’s stay applications in full (and three in part); it has granted certiorari before judgment in six of the 10 cases; and it has not granted any of the applications for extraordinary writs.
But the numbers don’t tell the full story. When the government has lost, its applications have often been denied without prejudice, or through orders that have nevertheless nudged the lower courts toward the government’s position. Whether directly or indirectly, the government has generally ended up getting most of what it has wanted — and no justice has identified any impropriety in the frequency with which the government has asked the Supreme Court for such unusual interventions. Simply put, even if the court hasn’t expressly approved of the government’s aggressive litigation tactics, its actions have largely acquiesced in them — and have left at least the impression that it has no objection.
Where has this uptick come from? The most common explanation, including the one most often provided by the solicitor general, is that it is a response to the rise of so-called “nationwide†injunctions. When a single district judge is able to block a federal policy on a nationwide basis, the argument goes, there is a clearer imperative for preliminary appellate intervention. The problem with this reasoning, the paper explains, is two-fold: First, a number of the government’s requests have come in cases that don’t involve nationwide injunctions. And second, even in those cases that do, there’s no explanation for why immediate appellate intervention by the courts of appeals has failed to rectify purportedly out-of-step district court rulings. Indeed, in explaining the reason for the stay in the Sierra Club case, the court pointed to whether the plaintiffs have a cause of action — not concerns over the breadth of the relief ordered by the district court.
More:
https://www.scotusblog.com/2019/07/academic-highlight-the-quiet-doctrinal-shift-likely-behind-the-border-wall-stay/#more-288362
