In 2012 Chief Justice John Roberts in Maryland v. King, writing for the court and granting a stay of a judgment vacating a conviction for assault, recited the conventional grounds for the Supreme Court to grant a stay:
(1) “a reasonable probability” that this Court will grant certiorari, (2) “a fair prospect” that the Court will then reverse the decision below, and (3) “a likelihood that irreparable harm [will] result from the denial of a stay.”
The shadow docket produced its fair share of headlines in the 20th century, too — from Justice William O. Douglas’ last-minute stay of the executions of Julius and Ethel Rosenberg in 1953, to the Cambodia bombing litigation 20 years later, to at least the first round of Bush v. Gore. But for all of these historical anecdotes, there are at least two respects in which the shadow docket has truly exploded in the last few years: the number of requests for emergency relief from the solicitor general, specifically; and the public divisiveness of the justices’ responses — both in those cases and others.
The data are striking. Three and a half years into the Trump administration, the solicitor general has sought emergency relief — to stay a lower-court ruling or lift a lower-court stay — on 36 separate occasions, including 14 alone during the October 2019 term. That’s in contrast to the previous 16 years — under Presidents George W. Bush and Barack Obama — when the solicitor general sought such relief eight times, or once every other year. And as I wrote last November in an essay for the Harvard Law Review, the justices have largely acquiesced: 22 of the solicitor general’s first 35 emergency applications were granted in full or in part; only eight have been denied in full; and only half of those eight were denied with prejudice. Indeed, emergency applications have become such a significant part of the solicitor general’s caseload that the office recently cited that uptick in explaining why it had added a fifth deputy.
The uptick has not just produced more rulings from the court; it’s also produced more division. In the 22 cases in which the court has granted at least partial relief to the government, at least two justices have publicly noted dissents 17 times, and nine of the orders have publicly been 5-4. (One of the quirks of the shadow docket is that we don’t usually know the actual vote count — unless four justices publicly note dissents.) In contrast, no justice publicly noted a dissent on any of the four occasions that the court granted emergency relief to the government between 2001 and 2017.
As I noted last fall, there are any number of competing explanations for these upticks — for the significant increase in the frequency with which the solicitor general is seeking such relief, and the concomitant increase in how often the court is acquiescing. By now, at least, it is clear that the trend can’t be pegged entirely, or even mostly, to the uptick in so-called “nationwide injunctions”; too many of the applications are in cases where such relief is not at issue. Instead, as I’ve suggested, it seems likely that there is now a majority of the court in support of a subtle doctrinal shift that Chief Justice John Roberts espoused in an influential in-chambers opinion in 2012 — that the government suffers an irreparable harm weighing in favor of relief whenever its policies are enjoined, and without regard to a balancing of the equities. In those circumstances, the government’s entitlement to emergency relief will, for better or worse, rise and fall entirely on the justices’ predictions of how they are likely to rule on the merits. Given the current composition of the court, it’s hardly surprising that a Republican administration would fare relatively well under that standard. Nor is it surprising that the Office of the Solicitor General would be uniquely well-positioned to notice — and take advantage of — such a subtle doctrinal shift.
But none of this explains the radical increase in the (public) divisiveness of ****KEEP READING
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