The Solicitor General and the Shadow Docket
37 Pages Posted: 16 Jul 2019
Date Written: July 15, 2019
During the first two and a half years of the Trump Administration, the Solicitor General has sought emergency or extraordinary relief from the Supreme Court with unprecedented frequency, applying for at least 20 stays of lower-court rulings; filing nine petitions for writs of certiorari before judgment; and seeking writs of mandamus directly against three different district judges. Over the prior 16 years, in contrast, the government had sought a total of eight stays from the Justices; four writs of certiorari before judgment; and zero writs of mandamus.
This Comment, part of the Harvard Law Review's issue dedicated to the Supreme Court's October 2018 Term, endeavors to document this uptick, explore its possible causes, and flesh out its potential impact. In particular, the Comment offers three principal observations: First, the Justices have largely acquiesced in the Solicitor General's newfound aggressiveness. Although the government's formal track record in these cases is something of a mixed bag, the net effect of the Court’s actions in most of these cases has left the Solicitor General with most of what he has asked for, generally leaving the specific federal policy under challenge in place (or halting complained-of discovery) pending the full course of appellate litigation. And even in the instances in which that has not been the case, the Court's denial of relief has come summarily and with no public opprobrium — no suggestion from the Court, or any of the Justices, that the Solicitor General is abusing his unique position, is taking advantage of his special relationship, or is otherwise acting in a manner unbecoming the office he holds.
Second, although the most common explanation for this uptick is the rise in "nationwide" injunctions against Executive Branch policies, on closer inspection, it may have more to do with subtle (but more broadly significant) shifts in the Supreme Court's procedural doctrine. In particular, a majority of the Justices now appear to believe that the government suffers an irreparable injury for purposes of emergency relief whenever a statute or policy is enjoined by a lower court, regardless of the actual impact of the lower court’s ruling or the degree of harm caused by the challenged government action. As a result, the conclusive consideration in such cases has become the government’s likelihood of success on the merits.Thus, the Justices increasingly appear to be calibrating their threshold decisions so that the status quo pending the rest of the litigation reflects what they expect the outcome to be if and when the merits reach the Court and the Court reaches the merits. With a newly solidified bloc of five conservative Justices, it is not exactly surprising that a Republican administration would generally fare well on those terms.
Third, insofar as this description is accurate, it is not obvious that it is a positive development. Among other things, such an approach is radically out of kilter with the Court’s approach to the rest of its docket. The Justices have repeatedly emphasized, especially lately, that "[o]urs is 'a court of final review and not first view,'" and for good reasons, including the virtues of percolation, the vices of predictive judgments, and the need to preserve the Court's (self-)limited resources. Moreover, insofar as this shift is happening only through the Court's "shadow docket," it not only deprives parties and amici of a full opportunity to litigate the matter, but it also obfuscates the shift from lower courts, as well — and creates at least the specter of unfairness and/or arbitrariness when the Court does not facilitate comparable behavior by, or afford comparable relief to, private parties.
Many will understandably see these concerns as being outweighed by the benefits of a more solicitous Supreme Court when it comes to government applications for emergency or extraordinary relief. So be it. What cannot be gainsaid is that these concerns exist — and that there are therefore costs to this new normal even in contexts in which the Justices' predictive judgments turn out to be accurate (and especially when they do not).
Keywords: Supreme Court, Solicitor General, Extraordinary Writs, Habeas Corpus, Trump Administration, Federal Courts
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