Ex-Solicitors General Parse Recent Emergency Rulings’ Value (1)

Two recent US solicitors general said Wednesday that there was value to the Supreme Court’s rising number of unsigned emergency rulings while differing on whether they count as precedent.

Elizabeth Prelogar, who served as solicitor general under President Joe Biden, told an audience at the US Court of Appeals for the Sixth Circuit’s Judicial Conference in Memphis that when the court issues rulings “that contain minimal but some reasoning, that definitely functions as precedent.”

It’s one of the reasons the justices respond to each other in writing in such rulings, “because those kinds of decisions really can have precedential effect going forward, but they’re often handed down on these impossibly short time frames,” she said.

Such decisions “can ultimately be the first step in a doctrinal or jurisprudential shift that is going to have massive precedential effect,” Prelogar added.

Prelogar spoke on a panel with Jones Day partner Noel Francisco, who served as solicitor general during President Donald Trump’s first term.

They spoke after Justices Neil Gorsuch and Brett Kavanaugh on Aug. 21 said that lower court judges “may sometimes disagree with this Court’s decisions, but they are never free to defy them.”

Such emergency orders have proliferated as multiple parties challenge Trump directives in the early months of his second term.

Prelogar, who’s now a partner at Cooley LLP, said litigants may struggle to try to untangle the justices’ aims based on unsigned orders with scant reasoning.

“And in that circumstance, I can understand, maybe, the situation that lower courts find themselves in when they’re faced with a materially similar policy but they’re not entirely sure what ground prompted the Supreme Court to deny emergency relief,” Prelogar said.

Francisco’s View

Francisco said he didn’t see a “shift” in how the court views the precedential value of such orders, “but I think that the signal, maybe, that the Supreme Court is sending is that when we’re handling a series of emergency issues over and over again, and some of them look exactly like the next one down the road, then lower courts ought to pay attention to that.”

That’s different, he added, from reading reasoning into unsigned orders.

“But I think that the court is saying ‘try to help us out a little bit when we’re doing the same thing over and over again. Don’t keep sending the same issue up to us,’” Francisco said.

Kavanaugh defended the absence of explanation in recent rulings at the Eighth Circuit’s conference in July by saying there can be a “danger” in writing a lot in those situations.

If the court must weigh a party’s likelihood of success on the merits at an earlier stage in litigation, that’s not the same as reviewing their actual success on the merits if the court takes up the case, Kavanaugh said.

On Wednesday, Prelogar noted that the court finds itself in so many situations where the parties don’t have time to file extensive briefs with arguments and the justices themselves have limited time to rule because “there’s a true emergency in the sense of some real-world event that is going to change the status quo or need resolution by the Supreme Court.”

At a separate Sixth Circuit conference event Wednesday, current Solicitor General D. John Sauer said he doesn’t like phrases such as “shadow docket” to describe how the justices handle emergency petitions.

“There’s a loaded element to these inherently loaded descriptions of it,” Sauer said. In his view, the court is doing what any court does. “They’re reading the briefs and the record and making their best judgment about whether or not it satisfies the stay factors.”