Justice without delay

Is the conservative majority on the Supreme Court operating out of bounds? Last week, The New York Times ran several articles with attention-grabbing headlines about the nation’s highest court. They purported to tell the story of the origins of the Court’s modern “shadow docket.” According to the Times, these accounts reveal a Court enamored with its own power and willing to wield that power aggressively to achieve conservative ends. On closer examination, however, the documents are not as sensational as the Times suggests. They certainly are not nefarious. Instead, they show a Court engaged in the work of managing a changing and expanding litigation landscape.

The bulk of the Court’s work has long come through petitions seeking review, in which a case is briefed and argued and the justices deliberate, vote, and write opinions. But alongside that familiar pathway is a separate category of matters that arrive as requests for immediate relief of one kind or another. For many years, these applications were dominated by prisoner litigation, where applicants sought stays of execution or other forms of relief. Professor Will Baude described this other body of work as the Court’s “shadow docket.” But in recent years these orders rocketed from shadows to limelight, and other labels have been suggested—the “emergency docket”; the “interim docket.” Whatever the label, the number of significant matters arriving in an interim or emergency posture outside the ordinary course has increased.

For several years now, the Court’s critics have emphasized that a growing number of high-stakes disputes involving executive power, administrative governance, and individual rights have reached the Court in this expedited posture. The Court, to the consternation of some and the satisfaction of others, has been willing to resolve significant questions when they arise in this form.

The New York Times’ latest set of leaked confidential documents from the Supreme Court does not arise from a recent emergency-docket controversy. The documents reach back a decade, to administrative-law litigation during the Obama years. According to the Times, that case marked the turning point, a groundbreaking invocation of Supreme Court power against the executive branch. The memos are accordingly presented as troubling both because of what the Court did and how it did it. The briefing was expedited rather than proceeding at the slower, more deliberate pace typical of cases on the regular docket. Moreover, the Supreme Court’s decision came quickly by the standards of the Court’s ordinary calendar, in a matter of days rather than the weeks or months commonly devoted to cases on the regular docket.

But once the slant of the Times’ presentation is stripped away, what emerges is a more nuanced picture of a Court hard at work. (Several legal scholars have written in detail about what the Times left out; links here point to those in-depth analyses.)

The case before the Supreme Court involved litigation over an environmental regulation issued by the Obama administration, one with potentially far-reaching national effects. When a petition came to the Supreme Court to halt the regulation, the Times portrays Chief Justice John Roberts as aggressively taking the lead. But for those familiar with the Court’s ordinary procedures, the chief’s leadership here is unremarkable. Fast-turnaround applications come up from the federal courts of appeals, which are divided into just over a dozen regional circuits. Each circuit has a designated point person at the Supreme Court: the circuit justice. Chief Justice Roberts is the circuit justice for the D.C. Circuit, which is where this Obama-era litigation originated. So, of course the chief would take the lead in guiding the petition through the Court. That is what the circuit justice would be expected to do.

Then, The New York Times emphasizes, the memos flew fast and thick, with seven memos in five days. The justices debated how to handle the case, the merits of the underlying law, and the appropriateness of issuing a stay. The Times presents all of this as troublingly hasty.

But perhaps it is instead a Court working hard under time pressure to deal with a time-sensitive petition.

Emergency applications arise in a variety of postures. Maybe a lower court has entered an order with immediate, nationwide consequences, and a party seeks relief before those consequences fully take hold. Maybe—as in the 2016 case—the executive action will have immediate consequences and parties are seeking to have the new policy put on hold so the issue can be fully litigated before being forced into compliance. A delay, after all, may not always be neutral. Waiting weeks or months for a ruling may effectively decide the case. Justices were confronting important legal questions in a time-sensitive context. As Harvard Professor Richard Re has observed, speed in this context may sometimes be a necessary feature of a hardworking court that has to respond to a wide range of situations.

There’s plenty of space for debate here. When should the Court move fast? What are the tradeoffs between moving fast and moving slow? But the Times piece too often relies on insinuations, not on actual argument on these points (as Professor Jack Goldsmith points out in detail).

As to whether the court’s decision on the Obama-era regulation was a power grab, that too is debatable. The Court’s decision to issue an order but not to issue a full opinion explaining the order might be understood as a form of restraint: A full opinion may set a precedent; a more limited order necessarily provides less guidance.

Finally, as Professor Stephanie Barclay documents, the Times’ story oversells the novelty of what happened in 2016. Two years earlier, the Court had paused an executive agency’s regulations while it allowed litigation to proceed. The beneficiary there was the Little Sisters of the Poor, a religious order seeking to defend its conscientious objection to a so-called “contraception mandate” regulation. (And the first mover at the Court that time was not a conservative justice trying to push an agenda. It was Justice Sotomayor.)

None of this is to say that the Court’s emergency practices are beyond criticism. Reasonable observers can and do disagree about when stays should issue, how much explanation the Court owes in short orders, and whether the balance between speed and deliberation has been struck correctly. But too often in recent years, criticism of the Supreme Court’s procedures seems rooted in opposition to the Court’s decisions. Those too can, of course, be debated. Is the Court too indulgent to the executive’s assertions of power, or not respectful enough? Is the Court overly obsessed with honoring a 200-year-old constitution, or falling short on its duty of fidelity? These are debated all the time too. But no one is helped when these issues are conflated, as the Times does when it portrays a “conservative” Supreme Court in a hurry to reach judgment. It doesn’t do, well, justice to the Court’s work.

If there is one thing that is troubling here, it is the leak of confidential Court documents. The confidentiality of the Court’s deliberations lets the justices discuss and debate before issuing decisions in public. If they expect leaks that spin their private memos into big news, their deliberations will only become more difficult to carry out, with likely costs to the Court’s work. And that is a loss for all of us.