Challenges to Biden Policies Fuel Supreme Court Summer Surge

The Supreme Court’s summer is busier than usual with the justices fielding a flurry of requests from Republican-led states and industry groups looking to block Biden administration policies.

The full court has decided 10 emergency applications since starting its recess on July 1. And the justices are on track to more than triple that number before starting the new term on Oct. 7, outpacing the number of requests handled during the pandemic.

“In the summer of 2020, when there were emergencies everywhere, the full court decided a total of 21 emergency applications,” said Georgetown Law professor Steve Vladeck, who’s been tracking the requests and shared his data with Bloomberg Law.

“We’re at the halfway point and when they’re done with the current batch, they’re going to be well past that,” he said. “This is going to blow previous summers out of the water, including the Covid summer.”

Once used primarily for last-minute stay requests in death penalty cases, the so-called shadow docket now covers a broader scope of issues. Those often reflect national political divisions on hot-button disputes like abortion and the power of federal agencies.

What started off as blue states challenging presidential policies during the Trump-era has now become a steady flow of applications from conservative-led states pushing back on what they see as Democratic Party overreach.

By stepping into disputes over issues of national importance through this truncated process in which decisions are rendered on an abbreviated briefing schedule dispensing with oral argument, legal scholars say the court is inviting more requests and changing what’s considered a true emergency, which they suggest further undermines the court’s credibility.

Recently, the justices rejected the Biden administration’s expedited request to reinstate the Education Department’s new rules on sex discrimination. The court’s 5-4 ruling in Department of Education v. Louisiana said the government hadn’t shown that the court’s intervention was necessary on “this limited record.”

That still leaves more than a dozen requests remaining, including several challenges led by West Virginia and North Dakota to the Environmental Protection Agency’s rules for power plant emissions, an election dispute out of Arizona driven by the Republican National Committee, an attack on Biden’s latest attempt to cancel student loan debt led by Alaska and Missouri, and a battle over family planning funds for Oklahoma.

“Due to the Administration’s intransigence, the Court must unfortunately step in again,” Alaska and other Republican-led states told the justices in challenging the administration’s latest attempt to cancel student loan debt.

But the move to ask the Supreme Court to intervene isn’t inherently left or right, said Florida State University law professor Michael Morley.

The plaintiffs may look different and so might the lower court judges weighing in on these national policies, Morley said. “But it’s a mechanism that litigants on both sides of the political spectrum have taken advantage of.”

Encouraging Requests

The justices have lamented the rise in emergency applications and the time it takes away from the court’s “merits docket”—the normal process for accepting, hearing, and deciding cases during the term, which typically runs from October through June.

“It’s a challenge for us,” Justice Brett Kavanaugh said May 10 at a conference in Austin, Texas. “I think we’re dealing with it as best as we can in an imperfect situation.”

Speaking the same day at a different conference in Point Clear, Alabama, Justice Clarence Thomas said the emergency process “short-circuits” the court’s normal one for hearing cases.

Cases that reach the court’s shadow docket typically come by way of an emergency request. The resultant rulings often come in unsigned orders that are usually only a sentence long. Unless there’s a notable concurrence or dissent, there’s often little to no insight into the court’s reasoning.

“The way that we’re doing it now is not a thorough way of dealing with very difficult issues,” Thomas said.

It would be one thing if these orders were just a way to temporarily freeze a dispute to give the justices time to review the underlying legal question, but it’s become the norm for disputes that begin on the shadow docket to also end there, Vladeck wrote in his book on the subject.

Justice Elena Kagan, in speaking to a group of lawyers and judges on July 25, suggested the court’s to blame.

Because the court granted a number of emergency requests brought by the Trump administration, “I think it encouraged people to keep bringing these kinds of petitions for emergency relief,” Kagan said.

“We’ve gotten into a pattern where we’re doing too many of them and encouraging more of these kinds of petitions to be brought.”

True Emergency?

The full court ruled in a total of 15 cases last summer, nine cases in the summer of 2022, and six in the summer of 2021, according to Vladeck’s count.

That rise wasn’t surprising for University of Virginia associate law professor Payvand Ahdout, who’s written about state attorneys’ and state solicitors’ general increasing use of the court system to challenge federal laws over the past decade.

Like other litigators, they’re seeing the emergency docket as a channel they can now use, said Ahdout, who studies the phenomenon of litigating disputes over federal powers.

As a result, she said it’s not fair to characterize it as a true emergency docket.

“The definition of emergency has sort of broadened,” Ahdout said. “It’s not even just like it’s Covid, it’s an emergency. Now it’s student debt relief and that’s an emergency.”

Sometimes the court’s intervention is necessary. Kagan said that’s particularly true when lower courts have granted so-called nationwide injunctions, which can halt an administrative policy from going into effect across the entire country.

Those kinds of injunctions “can stop an important administration program in its tracks if you really let the process play out for years and years,” she said, noting that a president’s term might actually run out before the Supreme Court has a chance to review the policy.

Just Wait

It’s unclear whether the situation now is a new normal, or whether the court’s emergency docket will eventually cool.

This summer, though, the shadow docket’s pace shows no sign of slowing, particularly with the upcoming presidential election, said University of California Davis School of Law professor Aaron Tang.

Many of the emergencies that worked their way up to the Supreme Court during the summer of 2020 involved voting disputes, either because of pandemic safety measures or because of allegations of election tampering. Disputes over the 2024 election are already rolling in.

On Aug. 22, the justices allowed Arizona to partially enforce a state election law that requires voters to prove they are US citizens.

And Tang expects more election cases to land in front of the justices soon.

“If you think it feels busy now, wait until September and October, when the voting rights challenges start pouring in,” Tang said.