Judges Say Justices Need to Give More Emergency Docket Guidance

Federal appeals court judge Neomi Rao said “it would be helpful for the Supreme Court to give a little more guidance and expedite the merits more” when considering cases off its emergency docket.

“I think they’ve been clear on certain things and or I guess they think they’ve been clear on certain things,” said Rao, who was appointed by President Donald Trump to the US Court of Appeals for the DC Circuit in 2019. “But I do think if they want to have, you know, better, compliance all the way down, it would be helpful to say a little bit more.”

Rao, who spoke Thursday at a SCOTUSblog event in Washington, also noted that there were different factors behind the court’s brief or unexplained orders it issues following motions for emergency relief.

“They’re also working on a short fuse,” she said. “It’s possible they don’t have agreement on all the reasons why they issue a stay, right?”

She appeared on a panel alongside Houston-based US trial judge Charles Eskridge and Gabriel Sanchez of the Ninth Circuit, who also said more explanation from the Supreme Court “would provide helpful guidance to us.”

Some lower courts are left to question whether the Supreme Court is giving them a “signal” on how they’ll decide cases in the future when it favors a certain party in an emergency order, said Sanchez, an appointee of President Joe Biden.

“We have to ask, well, is that a type of signal that we think that the Supreme Court believes that there’s a likelihood of existing merits, or should we treat that as not that? Because there’s very little to go on and just try to resolve that case ourselves without any kind of outside signal? I don’t know that there’s always a clear answer,” Sanchez said.

Some federal judges have expressed frustration or confusion about the justices’ orders on its emergency docket and the way in which some justices have scolded lower courts for not following its directives.

“It suddenly feels a little bit adversarial, and it ought not feel like that between both court judges and the Supreme Court,” said Judge Pamela Harris of the US Court of Appeals for the Fourth Circuit. Harris spoke Saturday at a Sept. 20 event at William & Mary Law School in Williamsburg, Virginia.

Sanchez’s colleague on the Ninth Circuit, Judge Patrick Bumatay, also said in Cleveland on Wednesday that he understood both sides of a debate going on in the legal community aboutwhether interim orders from the Supreme Court are precedential like full-fledged written opinions.

However, he defended Justice Neil Gorsuch, who admonished lower courts last month to not “defy” the high court’s rulings.

Bumatay said Gorsuch’s statements were “somewhat justified” and that there were other cases that had “the same fact pattern” as the one at issue in that case, which involved the Trump administration’s decision to cut off health research grants.

“I get the concern and that these interim orders are not the most fulsome opinions, but we could look to how they’ve resolved other cases that are directly on all fours,” Bumatay said, “and I think in that particular instance, there were two or three cases that showed us what we should have been doing.”