The US Supreme Court has granted fewer requests for emergency relief three months into the term than it has in recent years.
Sen. Lindsey Graham (R-S.C.) got turned down when he asked the justices to keep him from having to testify before a Georgia grand jury; Arizona Republican Party Chair Kelli Ward was denied when she asked the court to stop the Jan. 6 congressional committee from making her turn over her phone records; and the court punted two disputes over President Joe Biden’s student loan debt relief plan to the merits docket to be fully briefed and argued.
In granting fewer requests that come in on what’s known as the “shadow docket,” the justices could be signaling they no longer have the same appetite to settle fights by way of an emergency order as they have in recent terms. It could also mean they’re not getting the same type of applications they’re compelled to grant.
“It is possible that this is a sign the court is being more circumspect about resolving big issues on the shadow docket or it could just as easily be a reflection of the nature of the disputes that are reaching the court in this posture,” said Stephen Vladeck, a professor at the University of Texas at Austin School of Law.
“It’s a small data set and I think it’s probably too early to be confident about any conclusion, but certainly at least three months or two-and-a-half months into the term, the shadow docket has been quieter than we’ve seen in the last couple years,” he said.
The court has only granted one emergency request and issued dissents in just three orders so far, which is down from the two emergency requests it granted and six dissents it issued with orders as of Dec. 13 last term, according to Vladeck’s data.
By Dec. 17 in the October 2020 term, there had been nine grants of emergency relief and public dissents issued with 19 orders, Vladeck said.
It takes five justices to grant an injunction of a lower court order, which are often sought in an emergency application.
The lone emergency order granted this term came in a death penalty case out of Alabama. The court agreed to let the state execute Kenneth Smith for killing a woman in 1988 in a murder-for-hire plot. Smith had argued death by lethal injection violated his Eighth Amendment right against cruel and unusual punishment.
The court’s three liberals, Justice Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, said they would have denied the state’s request to lift a stay on Smith’s execution. It was one of three noted dissents issued with an emergency order this term.
Thomas Jipping, a senior legal fellow at the Heritage Foundation, doesn’t think anything can be read from that data. “Like the cases that are appealed on the merits to the Supreme Court, each case is completely different,” he said.
“There’s no tea leaves, there’s no chicken entrails,” Jipping said. “There’s certainly no way for any observer outside the court to divine any kind of internal shifting of attitude or anything like that.”
Like conservative justices on the court, Jipping rejects the term “shadow docket.” He said it suggests the court is doing something nefarious when it has long ruled on emergency applications this way.
Some of the court’s own members, however have joined legal scholars in criticizing how often the court has issued significant rulings on emergency applications, decisions that come without full briefing, argument, or a written opinion to explain the justices’ reasoning.
When the court agreed to reinstate a rule from the Trump administration limiting protection for bodies of water under the Clean Water Act, Justice Elena Kagan, warned the court was rendering its “emergency docket not for emergencies at all” in granting extraordinary relief the states and industry groups had not justified needing. Chief Justice John Roberts joined Kagan’s dissent along with the rest of the court’s liberal wing.
Last term, the court refused to block Texas’ six-week abortion ban, which left enforcement up to private citizens, and lifted the federal government’s moratorium on evictions put in place in response to the pandemic.
This term, a lot of the emergency applications the court has received have been from people on death row who are appealing their executions. Those are fairly common emergency requests given they’re time sensitive.
The court is taking action on fewer emergency requests at least when it comes to emergency injunctions on presidential policies or stays of lower court opinions enjoining those policies, said Leah Litman, a University of Michigan Law School professor.
Litman noted the justices last term moved an emergency application from a Texas death row inmate to its merits docket to be fully briefed and argued. The inmate wanted his pastor to be allowed to pray aloud and touch him during his execution.
The court did the same thing with challenges to Biden’s Covid-19 vaccine mandates that came to them by way of emergency applications. The court did so again this term with two separate disputes over Biden’s student loan forgiveness plan. The student loan dispute is set for argument Feb. 28.
“I think they are responding to what were pretty forceful criticisms about the activity on the shadow docket,” Litman said. “It was very possible for the court to move some of these applications over to its regular docket.”
Last year, the court granted relief sought in 19 emergency applications last term, according to a Bloomberg Law analysis. But Vladeck noted the majority of grants for relief in the last two terms came after the new year.
“It’s possible we’re going to be having a very different conversation six months from now,” he said.
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