Shadow Docket Requests Threaten to Delay High Court Opinions (1)

The Trump administration could ruin the Supreme Court’s summer recess.

It’s already filed an unprecedented number of emergency requests for the court’s intervention and there’s no signs of any let up as the justices head into their last and busiest months of the term, legal scholars said. The extra work threatens to delay the release of opinions and force the justices to rule on requests well into July.

“In a regular term, May and June are extraordinarily busy at the Supreme Court because they’re trying to get all of their opinions out and they’re facing a backlog already,” said Allison Orr Larsen, who teaches constitutional and administrative law at William & Mary. “You could almost think of this as extra homework during exam period.”

The justices finished their work on July 1 last term, which was unusual for a court that typically recesses for the summer at the end of June. The break with tradition came after the court added an extra day for arguments to hear President Donald Trump’s bid for immunity from criminal prosecution. This term, the court added May 15 as an extra argument day to hear Trump’s emergency requests to start restricting automatic birthright citizenship. That’s two weeks after the court had originally planned to hear its last case.

Time Constraints

In its first 101 days, the Trump administration filed 12 emergency requests with the court. That’s more than during the entirety of the George W. Bush and Obama administrations combined, according to Steve Vladeck, a Georgetown Law professor who studies the Supreme Court’s so-called shadow docket.

In addition to birthright citizenship, the Justice Department has asked the court to step in and let Trump fire agency officials, carry out mass deportations, and ban transgender people from the military. In an order Tuesday, the court allowed the administration to start discharging thousands of transgender servicemembers.

One of Trump’s cases is still pending and the court is likely to get more requests from either the administration or people fighting it.

Bringing matters to the justices that require work on very short timelines is going to make it impossible for them to do other stuff, said John Elwood, a partner at Arnold & Porter where he heads the firm’s appellate and Supreme Court practice.

He noted the near 1 a.m. order released on April 19 temporarily blocking Trump from deporting another group of Venezuelans. That request came less than eight hours after attorneys for the detainees ask for the court’s intervention.

“When they’re doing that, they can’t be working on getting opinions out the door,” Elwood said.

Several justices have complained publicly about the impact of the court’s growing shadow docket and the cases they’re deciding without full briefing and argument.

“Our summers used to be actually summers,” Justice Elena Kagan said while speaking at the US Court of Appeals for the Ninth Circuit’s judicial conference last July.

“One of the great things about our calendar was that it was spaced out so that we would have a break before we sort of went back to the hot house of decision making,” she said. “Just the relentless bringing of these emergency petitions makes that not the case anymore.”

The Supreme Court calendar is more like a campus schedule with a long summer break before picking up arguments again in October. Justices take vacations, make public appearances, and some travel to teach or lecture overseas.

Kagan said she feels she’s working as hard as she did when she first got to the court even though the number of cases the court hears on its merits docket has dropped in recent years.

Justice Sonia Sotomayor has also lamented the court’s summer break. During a speech last year at the University of California, Berkeley, she said she’s tired and working harder than ever in part because the emergency docket it more active.

Others on the court have complained about having to make rulings on controversial cased on an expedited timeline. Justice Brett Kavanaugh last year called it achallenge and said it keeps the justices from being able to do other work.

Judging by the orders coming down in the middle of the night, Stephen Wermiel of American University said he thinks all the emergency requests are wearing thin on the justices.

“My sense from trying to read the tea leaves of the little bit of writing that they’ve done is that they’re already kind of on edge with each other,” Wermiel said. “So who knows what lies ahead.”

Nationwide Injunctions

Kagan blamed the court in part for the onslaught of emergency applications. She said the justices encouraged people to bring these requests by granting so many early on in Trump’s first term. But she suggested sometimes the court is forced to act when district courts grant nationwide injunctions, “which can stop a program, an important administrative program, in its tracks.”

The explosion of emergency requests, Vladeck said, can’t happen “without a president doing lots of novel things and lower courts blocking a bunch of them.”

“Which is the chicken and which is the egg, I think, will depend upon how people feel about Trump’s policies,” he said.

The court has a chance in the birthright citizenship case to try to limit the ability of lower courts to block policies from applying to anyone. Trump is asking the court to narrow nationwide injunctions that blocked his executive order.

“It may be an opportunity to provide guidance on how much relief people can get,” Elwood said.

Some legal scholars, however, doubt such guidance would be all that impactful, at least for the court’s workload.

Any limits on nationwide injunctions will encourage litigation in multiple federal jurisdictions, Wermiel said, increasing the possibility for circuits splits. Such disagreement among the federal courts of appeal are a cornerstone of the Supreme Court’s grants.

“In the short term, it may reduce the number of emergencies,” Wermiel said. But in the long term, it’s likely to create more work on the merits docket, he said.

“I’m afraid this is the new normal,” Wermiel said.