The U.S. Supreme Court returned to the bench for arguments Jan. 7, but that didn’t mean work stopped over the holidays. ‘Tis the season for applications, and specifically, Trump applications.
Applications? At certain times of the year, the high court seems to be a magnet for highly charged emergency requests. Those requests usually seek to stay — in other words, block, at least temporarily — a lower court decision until the losing party in the case can file an appeal or a petition for review (petition for certiorari) in the Supreme Court.
Two years ago in a two-week period, the justices fielded a remarkable string of emergency applications for stays from states and private parties in cases involving voting rights, same-sex marriage, abortion and campaign speech.
Legal scholars and others saw no clear explanation for that sudden confluence. They suggested it was simply a coincidence of a number of controversial and divisive issues moving through the lower-court pipeline to the Supreme Court at the same time.
That same coincidence of timing and divisive issues appears to be the driving force behind what the court experienced in December. There are two major differences, however, between this December and October 2016: The primary party seeking the justices’ intervention now is the U.S. Department of Justice, and the department is often trying to leap over the federal appellate court to get quick Supreme Court consideration.
Here’s a look at the cases, with a few updates:
Once again, the Trump administration was on the losing end of an attempt to change a law or program. A federal judge in San Francisco blocked an administration rule that would prohibit immigrants who enter the country illegally from requesting asylum.
The Justice Department asked the high court to stay the federal judge’s injunction, pending the outcome of the government’s appeal to the U.S. Court of Appeals for the Ninth Circuit — and if that appeal failed, pending a decision on a petition for review in the high court. The justices on Dec. 21 rejected the government’s application, voting 5-4. Keep an eye on this one. The government likely will return quickly to the high court if it loses its appeal.
Transgender military ban
In three cases, the Justice Department has filed applications for stays and what are called “petitions for certiorari before judgment.” That type of petition asks the justices to decide the legality of the ban before the lower federal appellate court has ruled. The justices rarely grant that kind of petition because they want to have the benefit of the appellate court’s opinion.
The three cases come from Washington, D.C., and the states of Washington and California.
The latest update: The Supreme Court on Jan. 22 revived the Trump administration’s ban on transgender military service by blocking injunctions against the ban until lower appellate courts rule on the ban’s legality, and the administration files — and the justices consider — a petition for review.
Remember the “Dreamers?” The Justice Department unsuccessfully defended the Trump administration’s winding down of the program, known as Deferred Action for Childhood Arrivals, in three cases, one each from New York, California and Washington, D.C.
The department has a regular petition for review pending in the California case and petitions for certiorari before judgment in the other two.
The latest update: The Trump administration still has a petition for review pending before the justices, but the high court is unlikely to hear the administration’s appeal in the current term because its docket is full. The children in the program can still seek two-year renewals of their stays in the United States.
The justices rejected the department’s initial application to block all questioning of high-level government officials in the federal trial into the Department of Commerce’s placement of a citizenship question on the next Census. The court did block questioning of the secretary of Commerce and agreed to hear the government’s arguments on why the trial judge should not be permitted to compel testimony by high-ranking Executive Branch officials.
The latest update: The Trump administration on Jan. 22 informed the justices that it will appeal a trial judge’s decision striking down the citizenship question on the decennial census. The administration said it will ask for arguments in April or a special sitting in May before a federal appeals court can consider and rule on the question’s legality.
In November, the justices refused the Trump administration’s request to block the climate-change trial in Oregon, which was brought by a group of children and teenagers. Later that month, the Justice Department informed the justices that it was filing an appeal of certain trial court rulings with the U.S. Court of Appeals for the Ninth Circuit. Depending on what the Ninth Circuit does, the department may come back to the high court.
How the court handles applications
All of these cases have various filing deadlines imposed by the justices, and the court could act at any time after the deadlines have been met.
Unlike when petitions for certiorari are filed, applications don’t go to the full court. They initially are filed with the justice who is assigned to handle emergency matters from a particular circuit. In the transgender military ban cases, for example, the Washington and California applications went to Justice Elena Kagan who is the circuit justice for the Ninth Circuit which includes those states. Chief Justice John Roberts Jr. is the circuit justice for the District of Columbia Circuit.
The circuit justice may act alone on an application or refer it to the full court. With particularly controversial or divisive issues, a justice often refers the application to the full court.
The number of applications to individual justices has remained pretty consistent over the last 40 years, ranging from 1,000 to 1,300 per term. And the justices regularly see emergency applications for stays of executions from death row inmates.
A bit of Supreme Court history
Nearly 60 years ago, Justice William Brennan Jr. took the unusual step of hearing oral arguments in his chambers at the court on a school district’s application for a stay of a desegregation order. Brennan, according to his former clerk Frank Michelman of Harvard Law School, welcomed the lawyers into his chambers, listened to the arguments and then “effortlessly” wrote an order denying the stay request.
The lawyer who successfully opposed the stay was Thurgood Marshall, who at the time was with the NAACP Legal Defense and Education Fund. Six years later, Marshall took his seat on the Supreme Court as an associate justice and found in Brennan a fellow liberal lion for more than two decades.