69. The Perils of Inconsistent Judicial Role Morality

A common theme cutting across seemingly unrelated headlines is how the Supreme Court's own recent behavior has left it with little room to maneuver around a slew of political and legal landmines

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

As regular readers know, the Monday issue of this newsletter tends to follow a set format: an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. But given the flurry of major Court-related headlines over the past few days, I thought it would be helpful this week to not just summarize all of the news, but to try to put the news into a broader context—one in which the justices’ own behavior has a lot more to do with why the Court is so awash in each of these controversies than might be obvious at first blush. To that end, today’s issue is “just” about what’s “on the docket” (and why).

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On the Docket

For organizational purposes, let’s break out six different “big story” headlines covering what’s happened during the last seven (and what we expect during the next seven) days at the Court:

Big Story #1: The Impending Colorado Disqualification Ruling

We expect a regular Order List today at 9:30 ET, most of which will likely be denials of certiorari in cases the justices considered at last Friday’s Conference. But much more significantly, the Court made public only yesterday that it “may” hand down one or more opinions in argued cases today at 10 ET—even though the justices won’t be on the bench. Both of these things are highly unusual: First, the Court almost always provides more notice of opinion days—including not announcing them on Sundays. Second, other than when the Court was closed because of COVID, the justices almost never hand down opinions in argued merits cases without taking the bench. So even though we don’t know for sure, there’s a very good chance that we’re getting the ruling in the Colorado ballot disqualification case (and maybe one or two others—if they’re ready).

That would mean a decision in Trump v. Anderson just 25 days after oral argument—which would be the shortest turnaround in a merits case since 2016, when the Court moved even faster in Welch v. United States—where a quick ruling was necessary so that a small subset of federal prisoners could meet a statutory deadline for particular challenges to their convictions or sentences that was about to expire. We’ll find out soon enough, but it seems quite likely that the consensus coming out of the February 8 oral argument will be borne out—with most (if not all) of the justices signing onto an opinion that holds that states can’t unilaterally disqualify presidential candidates under Section 3 of the Fourteenth Amendment.

Either way, it sure seemed all along that the Court had expedited the briefing and argument because it wanted to resolve the dispute before the Colorado primary (which is tomorrow). In the abstract, hustling like that would be entirely understandable—especially since, had it gone into effect, the ruling that the justices are reviewing would’ve kept former President Trump off of that ballot. But it’s not an ideal look for the Court to be handing down such a ruling without even taking the bench (which was probably a result of nothing more substantive than the Court not having been previously scheduled to sit tomorrow). And more significantly, the issue with the Court’s accelerated timing is how it looks (and will look) when compared to…

Big Story #2: Taking Up the Trump Immunity Appeal

On Wednesday afternoon, the Court issued a one-page order in which it granted certiorari to review the D.C. Circuit’s ruling that former President Trump is not immune from the January 6 criminal prosecution. The Court also expedited the briefing and set the case for argument the week of April 22. In other words, by the end of this term, the Court will also likely resolve whether Trump can stand trial for his role in January 6.

There is a lot to say about the order, much of which I addressed in our first-ever “One First” live thread on Wednesday night (thanks to those who participated!). For present purposes, let me flag three points:

1. Although former President Trump had asked only for a stay while he appealed the D.C. Circuit decision (which he would have had months to do had the justices acquiesced), the Court “treated” his stay application as if it were the appeal itself—which allowed it to move much faster than usual in taking up the case. Ditto the expedited briefing, without which the case would not have been ready for argument until at least October.

2. Instead of also granting the stay, the Court dismissed it as “moot.” This is almost certainly just a technical point, and not some deeper clue about how many justices did what, because in this specific type of appeal (albeit not usually), the grant of certiorari automatically freezes further district court proceedings. In other words, the weird language about the stay is, in my view, not a secret sign about the votes, but rather just an attempt to make explicit what was implicit in the order.

3. Finally, the order frames the question presented as “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” Again, the internet is abuzz with folks trying to divine from how the Court framed the “QP” some deeper clue about how the justices are likely to rule. My own view is somewhat more prosaic: this was an attempt to focus attention on the one issue the justices think is worth their time, while carving out those (like Trump’s claim that his Senate acquittal itself bars the trial) that the Court views as beneath it. Yes, this framing opens the door to the possibility that the Court hands down a rule for immunity that requires further proceedings in the district court. But it hardly requires that result (and it’s not like the Court is actually bound to answer the QP in any event).

Even though a lot of folks, myself included, had flagged this exact outcome as a decent probability, the public reaction to the Court’s intervention, especially from Trump’s critics, was … rather vitriolic. Common charges included claims that the Court had “sided with Trump” or intervened to prevent the January 6 trial from happening before the election, or some combination of both—whether by taking the case in the first place or by not accelerating the time-frame as much as the Court could have (or by taking the case now, rather than when Special Counsel Jack Smith had asked for certiorari “before judgment” in December).

To be sure, I would have preferred if the Court had just denied Trump’s application and allowed the January 6 prosecution to proceed forthwith. But, and I say this as someone who does not tend to give this Court the benefit of the doubt, taking this case up is eminently defensible. And, at least in the abstract, so is the abbreviated timeline on which the Court is doing so. Although folks have been quick to point to cases in which the Court has moved even faster (including Bush v. Gore, which seems like an … odd … example to extol in this respect), this is still a pretty fast by the Court’s standards. (On a standard schedule, oral arguments are usually at least 17 weeks after a cert. grant; this is less than half of that.) What’s more, this critique demands that the Court respond to the felt need on the part of many for this case to go to trial before the election, while apparently discounting the concern shared by at least some that the timing of the prosecution itself, and/or the Court’s facilitation of the same, is just as political.

In any event, as valid a political consideration as the timing of the trial vis-à-vis the election might be, it’s hard to see the legal argument for why the Court had to move even faster—in contrast to cases in which, e.g., a law is about to go into effect; a prisoner is about to be executed; or, as in Colorado, voters are about to go to the polls. As Dahlia Lithwick and I wrote for CNN on Thursday, just because we think a case is an emergency doesn’t mean we should expect the Court to think it is, too.

Here, again, part of the issue is not the abstract defense of the Court (which, in my view, is quite strong), but rather the perception, if not the reality, that the justices have moved faster in other contexts in which the partisan valence of the dispute tilted the other way or in which there weren’t as compelling reasons for expediency. In other words, the Court’s own (putatively inconsistent) prior behavior is the true basis for the sharpness of the critique—and the strongest response to folks, like me, who are inclined to defend it, so that we end up debating which emergencies justified even speedier decisions, and why. As I’ll get to in a bit, this is the exact problem that arises from the justices’ (seemingly) inconsistent role morality—and, more broadly, the extent to which the current Court’s behavior in other contexts has squandered the capital it might otherwise have had. When you don’t trust the Court to begin with, even compromises like this one have a way of looking nefarious.

But one thing that the timing arguments have failed to account for is how busy the Court is already. It may not feel this way, but the Court is actually way behind in getting rulings out the door even in cases that have already been argued—the slowest pace of any term since Chief Justice Roberts joined the Court, as Adam Feldman from EmpiricalSCOTUS told the Washington Post. More than that, the Court has an unusually high concentration of cases on its merits docket, including cases added later in the term, that are of the type that tend to consume the most resources inside the building—complex cases with major implications on which the justices are likely bitterly divided, many of which have reached the Court in preliminary, if not premature, procedural postures that only make the Court’s resolution that much more complicated.

If we start from the proposition that the Court has finite resources (and, indeed, that those resources were overextended even before former President Trump filed his application in the January 6 case), it’s worth at least indulging the possibility that, given everything else that’s on its plate, the Court isn’t currently capable of moving much faster—a problem, again, that is to some degree of its own making. After all, although many of these cases were disputes that the justices arguably had to hear if for no other reason than what the lower courts did, it’s not clear why, for example, the EMTALA case had to be rushed onto the April calendar (especially once the Supreme Court issued a stay of the district court’s injunction), to say nothing of the Oregon homelessness case, which the justices just agreed to take up in January and could easily have set for argument this fall. Instead, the Court backloaded its docket with a flurry of major, labor-intensive cases long before the Trump immunity case came along—thereby limiting its own ability to react to merits cases that needed to be resolved on expedited timelines.

And all of that doesn’t even take into account how beset the Court has been by the continuing drumbeat of high-profile, resource-intensive emergency applications—another of which is likely to reach the Court later today:

Big Story #3: The Fifth Circuit Strikes Again

Perhaps because of all of the other news, this story hasn’t received the attention it deserves. But on Saturday night, the Fifth Circuit issued a massively important (albeit unexplained) ruling that effectively forces the Supreme Court to decide, by the end of this week, whether or not to allow Texas’s “SB4”—the most aggressive effort by a state to set up its own deportation regime that we’ve ever seen—to go into effect.

I’ve written before about SB4, a deeply controversial law adopted by Texas last year that effectively creates a state-level deportation process and provides an array of state-law authorities to make that process effective. The law is a direct (and deliberate) assault on the Supreme Court’s 2012 ruling in Arizona v. United States, in which a 5-3 Court (with Justice Kagan recused) had rejected a less-aggressive attempt by Arizona to supplant federal immigration enforcement, holding that federal law, among other things, leaves the question of how to enforce immigration policy to the federal government. SB4 was set to go into effect tomorrow. But last Thursday, in a pair of consolidated lawsuits, including one brought by the United States, a district judge in Austin issued a preliminary injunction—holding, in a lengthy opinion, that SB4 intrudes even further into federal prerogatives than the provisions of the Arizona law that the Court blocked in 2012.

Enter, the Fifth Circuit. Saturday night, in a cryptic order that didn’t even make it onto PACER (all we have is a docket entry), the court of appeals did three things: First, it issued an “administrative stay” of Judge Ezra’s injunction. Second, it deferred resolution of Texas’s application for a stay pending appeal to consideration by a merits panel (and ordered the case be scheduled for the “next available” oral argument calendar, whenever that is). Third, it temporarily stayed its own administrative stay—giving the appellees (the federal government in one case and private plaintiffs in the other) seven days to seek emergency relief from the Supreme Court.

In other words, the Fifth Circuit, with no explanation, cleared the way for a law that is intended to provoke a conflict with an existing Supreme Court decision to go into effect—under the guise of “deferring” a ruling on Texas’s application for a stay pending an as-yet-unscheduled oral argument. So structured, this is an “administrative” stay in name only.

And although this time, unlike when it pulled a similar move in the SB8 case in August 2021 (issuing an indefinite “administrative” stay of district court proceedings to block Texas’s six-week abortion ban two days before the law was set to go into effect), the Fifth Circuit gave the Supreme Court seven days to step in, it puts the same pressure on the justices. Of course, Justice Alito could issue an administrative stay to give the Court more time; the relevant point is that some intervention would have to come by Saturday.

Once again, then, the justices will have to drop everything to deal with an emergency application from the Biden administration (and, I assume, the private plaintiffs) to counter emergency relief provided by the Fifth Circuit. If this sounds familiar, that’s because it is. As I’ve explained previously, of the (now 14) emergency applications filed by the Biden administration in the Supreme Court, 11 have come from the Fifth Circuit. And of those 11, the Court has granted seven, and ruled against the Fifth Circuit on the merits in three of the other four. This term alone, four of the six grants of emergency relief to date have come from the Fifth Circuit. These numbers are, and ought to be, shocking. No other court of appeals comes close on any of these data points.

To be sure, the Fifth Circuit bears much of the responsibility for this pattern. But not all of it. As I’ve suggested before, until and unless the justices repudiate the court of appeals for repeatedly subjecting them to these fire drills, the Fifth Circuit has no reason to stop (assuming it would stop even then). Even justices who might be sympathetic to what Texas is doing ought to be troubled that there is a single court of appeals that is regularly putting the Court in this position. The longer that this goes on without any kind of public pushback or admonition, the more reasonable it becomes to lay at least some of the blame at the Court’s feet. To put the matter directly, these applications aren’t just falling on the Court’s head; the Court’s own conduct is enabling the lower-court behavior that’s provoking them.

Big Story #4: Gender-Affirming Medical Care for Transgender Adolescents

Believe it or not, before the Court gets to the forthcoming emergency application(s) in United States v. Texas, it will presumably have to deal with the emergency application in Labrador v. Poe—in which Idaho is asking the Court to put back into effect its state-law ban on gender-affirming medical care for transgender adolescents. And although Poe doesn’t raise the institutional relationship issues that the SB4 case does, the mere fact that the justices are being asked to weigh in on such a momentous (and evolving) constitutional question at this preliminary stage is worth reflecting on. Not that long ago (i.e., 2016), it would’ve been all-but unheard of for the Supreme Court to seriously consider a stay application in a case in which a lower court had issued a preliminary injunction against a state law; the justices would have waited for the dispute to “percolate,” and would most likely have reviewed the issue if and only if the law were still blocked at the far end of litigation.

What changed, besides the frequency with which the justices began indulging emergency applications, was a seeming coalescence of a majority of justices around the view that a state suffers “irreparable harm” whenever one of its laws is enjoined—regardless of what the law does or what kind of harm it inflicts on its subjects. This move, which I’ve documented elsewhere (and criticized in detail), has the effect of reducing emergency applications in these contexts to whether five justices think the state is likely to win on the merits. And one (obvious) result of such a shift is to increase the incidence of emergency applications in which novel state laws, at the forefront of the culture wars, provoke plausible requests for emergency relief that further consume the Court’s limited oxygen. Again, one can have any number of views about the substantive legal questions raised by Idaho’s law, to say nothing of its wisdom as a matter of public policy. My point is simply to show the extent to which it is a big problem for this Supreme Court at this premature juncture at least in part because of the Court’s own conduct in other cases. Had the Court shown more restraint in earlier cases, it might not have even been asked to step in here, let alone creating the conditions in which it may well grant such relief.

Big Story #5: Another Botched Execution

Speaking of how earlier rulings have created something of a trap for the Court, before Wednesday’s order in the Trump immunity case, the biggest news of the week was arguably the three unsigned, unexplained orders the Court handed down early Wednesday morning clearing the way for Idaho’s scheduled execution of convicted serial killer Thomas Eugene Creech. At least one of Creech’s stay requests had raised concerns about the means by which Idaho was planning to execute him. And lo and behold, those concerns turned out to be justified; after eight attempts over the course of nearly an hour, Idaho officials were unable to properly insert the necessary IV line—and the execution was halted.

This is not the first time that a state has botched an execution after the Supreme Court rejected arguments about the risk of a potential botch; the same thing happened with Kenneth Smith, who Alabama successfully executed this January. The Supreme Court had intervened to clear the way for what turned out to be a failed attempt in 2022, and it refused to block Smith’s execution in January—over dissenting opinions from Justice Sotomayor and Justice Kagan (joined by Justice Jackson).

In one sense, the Court’s non-intervention (indeed, even the lack of public dissents) in Creech’s case was entirely predictable. This Court has all-but given up on trying to regulate executions through emergency applications—so much so that folks who follow the Court have become inured to the justices’ seeming lack of interest in these cases. But that, too, is a revealing reflecting of the justices’ recent behavior. At other points in the Court’s history, the lack of any public dissent in Creech’s case, or the possibility that the Court might bear some responsibility for what happened next, would have received much more discussion.

Big Story #6: Last Week’s Arguments

And speaking of things that didn’t get a lot of attention, there were also two major sets of oral arguments last week: Monday’s marathon double-header on the constitutionality of Florida and Texas laws that purport to limit content moderation by social media providers; and Wednesday’s argument on the legality of a Trump-era Bureau of Alcohol, Tobacco, and Firearms (ATF) prohibition on the sale or purchase of “bump stocks.”

There’s plenty more to say about both of these issues (later this week, I’ll have a piece in The Atlantic on the latter). But for now, the relevant point is how difficult it is becoming to keep tabs on the “ordinary” major cases that the Court is hearing. In any other term, these cases would have received a ton of media attention—and the oral arguments would’ve been the subject of detailed post-argument commentary and breakdown.

But both because of the amount of Court-related news and because these arguments are themselves going on … much longer … than has recently been the norm,¹ it’s hard even for folks who regularly follow the Court to track these developments in anything approaching real-time. The costs to our understanding of what the Court is doing of trying to drink from its firehose is a story unto itself, since some of the decisions the Court hands down in these cases could have implications almost as momentous as those in the other cases described above. But when there’s only so much attention we (and the media) can devote to the Court, something’s gotta give.

Taking Stock: The Virtues and Vices of Unstated Role Morality

In a fascinating recent paper, Harvard law professor Dick Fallon wrote about the specific problem posed by justices who claim to be originalists yet are selective in their application of their preferred form of originalist methodology. For Fallon, a proper assessment of that latent inconsistency requires at least some discussion of what he calls “judicial role morality,” that is, the justices’ own sense of exactly what their broader obligations are and how those obligations might justify jurisprudential behavior that is otherwise problematic. To simplify the point a bit, a justice who views their job first and foremost as issuing sweeping judicial pronouncements to guide the relevant decisionmakers in future cases may well approach a case (and questions within the case) differently from an otherwise like-minded jurist whose view of the Court’s role is more focused on narrowly resolving the case at hand. Looking only at the justices’ ideological preferences or methodological commitments might not fully explain their behavior. (Consider, in this regard, the wildly different approaches of Justices O’Connor and Kennedy.)

In trying to figure out how to tie all of the threads currently swimming around the Court together, I kept coming back to this problem—and the broader problem that this is a Court that has been notably and noticeably unwilling to publicly articulate what it believes its role to be, in contrast to at least some of its predecessors. I’ve tried, in the above discussion, to illustrate the daylight between how we might view each of the current headlines in the abstract and how much worse they look as a function of the Court’s behavior in other recent cases. That behavior is, or at least ought to be, constraining in two different—but related—respects: First, because we expect the justices to approach different cases with the same basic view of what the Court’s job is; and second, because consistent application of legal principles (including those pertaining to the Court’s role), is, in the main, how the Court most easily distances itself from charges of partisan political behavior.

And although many are quick to assume that this daylight is simply a function of bad faith on the justices’ part, my own view is more complicated—and, maybe, more naïve. To me, at least the broader problem here is that the Court doesn’t have, or at least isn’t operating under, a clearly defined sense of what it ought to be doing across the entire scope of its docket, or even within specific subsets of cases—and so its reactions to each new crisis are often ad hoc, coming without regard to how its own behavior may have helped to provoke the crisis, or, at the very least, why it is important to appear to resolve similar-looking crises in procedurally (if not substantively) similar ways.

In other words, the justices are themselves responsible for how little room they have to maneuver in these current disputes at least largely because of their unwillingness to account for how they’ve maneuvered in previous ones. Playing high politics in the Colorado ballot disqualification case wouldn’t be nearly as troubling if the Court hadn’t so vocally rejected high politics in other recent contexts. Moving somewhat quickly in the Trump immunity case wouldn’t be nearly as troubling if the Court hadn’t moved even faster in the Colorado case. And so on.

If this is a fair critique, then the question is why won’t the Court publicly grapple, more holistically, with what it’s supposed to be doing? I see two possibilities: Either the Court doesn’t have a unifying theory that explains when and how it should intervene in cases implicating its relationship to the other institutions of American public life (perhaps because no five justices hold similar-enough views), or the view shared by a majority of the current justices isn’t one that they can say out loud.

Whatever the answer, this problem is going to get worse before it gets better—as litigants and lower courts continue to take advantage of the justices’ unexpressed (if not inconsistent) judicial role morality, and as the Court continues to ignore its own responsibility for this problem in the first place.

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Until then, happy Monday, everyone! I hope that, regardless of what the Supreme Court does, you have a great week.

1. Between them, the arguments in the two NetChoice cases on Monday ran a total of three hours and 45 minutes—concluding at 1:49 p.m. We’ve come a long way from the tenure of Chief Justice Rehnquist, who was famous (if not infamous) for shutting down even the most well-respected advocates even in the most complicated arguments as soon as their 30 minutes had expired—when you could set your watch to one-hour oral arguments at the Court.