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Monday, May 06, 2019

Granting Certiorari from District Court Opinions

One issue that may arise over the next year is the Supreme Court's discretion to grant review directly from a district court opinion. This power is exercised sparingly. (How sparingly I do not know.) The reason this may become an issue is that there are many lawsuits now pending (or soon to be filed) that challenge various decisions by the Trump Administration. A principal goal of the Administration seems  to be delaying any resolution of these matters until after the next election. If the litigation proceeds in the ordinary way, that goal may well be achieved. Four Justices, however, can make that more difficult by an expedited grant of certiorari.

Is this a good idea? Or when it is a good idea?  

Posted by Gerard Magliocca on May 6, 2019 at 09:41 PM | Permalink


Just an SSRN, concerning the issue:

"The Solicitor General and the Shadow Docket"



Posted by: El roam | Sep 3, 2019 1:51:26 PM

I read the Gerard to suggest that the government wants to slow things down and the plaintiffs challenging the administration might use cert-before-judgment to speed things up. This is especially true for the coming subpoena disputes between the House and the President. Note, of course, that US v. Nixon was one of the primary examples of cert-before-judgment.

Posted by: Howard Wasserman | May 9, 2019 7:43:25 AM

I think the garbled comment below has it right, actually. Besides the positive reasons the Court has given for cert before judgment, we could add the negative question of whether ventilation in the courts of appeals is likely to assist the Court. But the lack of a need for ventilation isn't, as a matter of current practice at least, sufficient; if there's an entrenched and broad circuit split, someone in one of the circuits that hasn't already decided the issue can't hope to get cert before judgment just by saying that a large and adequately ventilated split exists already. And even if they were in one of the circuits that has decided the issue, the Court will generally expect you to go through the formality of appealing and losing under circuit precedent.

Posted by: Asher Steinberg | May 7, 2019 6:51:22 PM

I thought the administration was trying to speed up review. (e.g., census) What cases are you referring to where the administration wants to slow it down?

Posted by: Biff | May 7, 2019 5:34:56 PM

Steve Vladeck has written about the increase in the practice under the current DOJ. It has attempted to get cert-before-judgment in just about every major challenge to a Trump exec order or administrative reg--it finally succeeded with the census case.

Posted by: Howard Wasserman | May 7, 2019 7:39:42 AM

The full citation of the rule ( 11 ) here:

Rule 11. Certiorari to a United States Court of Appeals
Before Judgment A petition for a writ of certiorari to review a case pending
in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court. See 28 U. S. C.§ 2101(e)


Posted by: El roam | May 7, 2019 6:34:04 AM

Interesting. It is indeed rare it seems. In the case of US v. Nixon granted indeed, I quote the from the ruling:

We granted both the United States' petition for certiorari before judgment (No. 73-1766), and also the President's cross-petition for certiorari [418 U.S. 683, 687] before judgment (No. 73-1834), 2 because of the public importance of the issues presented and the need for their prompt resolution. 417 U.S. 927 and 960 (1974).

End of quotation:

So, specific justifications are needed:

must be solved at once, and public importance. Supreme Court Rule 11 provides indeed that this procedure will be followed :

"only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court."

But, one can't subject the courts to political issues of course.Courts must stay independent, out of politics. Must be justified independently of any other political issue. Otherwise, clearly, it would hurt badly the doctrine of separation of powers of course.

One may read on other cases and generally speaking, here in Wikipedia:



Posted by: El roam | May 7, 2019 6:17:09 AM

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