A Court of First View

Abstract

The U.S. Supreme Court regularly insists that it is “a court of review, not first view.” This sentiment, which has been invoked dozens of times in the last decade alone, is usually deployed as justification for the Court’s refusal to consider arguments not raised by the parties in the lower courts; questions not answered by the lower courts; new issues that have arisen only as a result of what the justices have held in the case at hand; or taking up a discretionary appeal in the first place. Among other things, the logic goes, such restraint insulates the justices from unnecessarily resolving legally or politically fraught questions—all while conserving their finite resources for those issues that are, at least in their view, truly ripe for consideration.

And yet, even as the Court has continued to regularly invoke the “court of review” mantra in recent years, its behavior has increasingly departed from it. In Biden v. Nebraska, for instance, the lower courts had devoted exactly one word of analysis to the underlying question of whether the HEROES Act of 2003 authorized President Biden's student loan debt forgiveness program. The district court (which had denied a preliminary injunction and dismissed the suit after concluding that the plaintiff states lacked Article III standing) said nothing at all about the statutory basis for the program; and the Eighth Circuit’s decision (which granted an emergency nationwide injunction pending appeal based mostly on disagreement with the district court’s standing analysis) noted only that the statutory interpretation question was “substantial.”

Biden v. Nebraska may be an especially pointed example, but it is hardly alone. Even as the total number of cases the Supreme Court is deciding after plenary review has declined (significantly) in recent terms, the number of cases in which the Court is reaching and resolving the merits in some kind of preliminary procedural posture has grown—in absolute terms and, thus, in even more significant proportional terms. This phenomenon is especially pronounced in three categories of cases: those in which the Court is reaching the merits on appeals from the grant or denial of a preliminary injunction; those in which it is granting “certiorari before judgment” (bypassing the federal courts of appeals to hear appeals directly from U.S. district courts); and those in which it is reaching the merits on applications for emergency relief. More than that, the Court is not just reaching the merits at very early stages of a growing percentage of cases resolved through opinions of the Court; it is doing so in many of its biggest and most legally and/or politically consequential decisions. However one considers these developments, then, the most basic point is that we ought to consider them.

The first goal of this essay is to do exactly that—to describe and document these developments so that, at the very least, they are out in the open. Indeed, it does not take especially careful scrutiny to see fairly significant shifts in at least some aspects of the cases the Supreme Court is deciding—including the three categories on which this essay focuses. Part II offers a normative critique of these developments, sketching out some of the costs, to both the Supreme Court and the legal system more generally, of having the justices engaging in what is supposed to be extraordinary review on an increasingly ordinary basis.

Finally, Part III considers what might be causing the developments identified and critiqued in Parts I and II, and then pivots to how the justices (and, indeed, Congress) both could and should take steps to reduce the incidence of such cases and mitigate the costs of having so many preliminary-stage decisions on the docket. And even though the justices may not be directly responsible for such behavior by lower courts, they are hardly powerless to do anything about it. To the contrary, as Part III concludes, there are any number of ways to reduce the number of cases in which the justices might feel compelled to step in at such a preliminary posture—so long as the justices or Congress (or both) believe that such a reduction is worthwhile. Some of those reforms can come from the Court’s bully pulpit, its holdings, and its behavior; some can come from Congress. The first step, though, is to acknowledge that this is a problem worth a solution—and that the Court is increasingly (if inconsistently) a “court of first view." So long as that remains true, it will have a series of downstream–and understudied—effects that go beyond simply undermining the justices’ regular insistence to the contrary.