The Supreme Court’s Emergency Docket Meets The Inferior Courts’ Emergency Dockets

When it rains, it pours. On Monday, the Supreme Court issued two consequential orders on the emergency docket. First, the Court issued a stay of the trial court’s ruling in the Staten Island redistricting case. Second, the Court vacated the Ninth Circuit’s stay of the District Court’s injunction, which required California schools to notify parents if a child is transitioning genders. There is a common thread in both cases: inferior courts on both coasts used their emergency dockets, and the Supreme Court reversed both rulings.

In the Staten Island case, the New York Court of Appeals (the highest court in New York) did not rule on the applicants’ motion to stay the trial court’s injunction. Instead, the court found the motion should be resolved in the first instance by the Appellate Division (the intermediate court). There is apparently some disagreement between the Supreme Court and Justice Kagan in dissent, over the meaning of the New York Court of Appeals’ action. I say apparently, because the Court does not explain its reasoning. Justice Alito contended in his concurrence that the New York Court of Appeals, by not ruling on the applicants’ motion was, in effect a denial.

After that highly questionable injunction was issued, the applicants filed appeals in both the Appellate Division (the State’s intermediate appellate court) and the Court of Appeals (its highest court) challenging the trial court’s order on federal constitutional grounds. At the same time, applicants asked both courts to stay the trial court’s order. The Appellate Division refused to issue a stay, and by order issued on February 11, the Court of Appeals sent the appeal filed in that court to the Appellate Division and dismissed applicants’ motions for a stay.

Alito concluded: “The New York Court of Appeals’ decision not to grant a stay or hear a direct appeal was effectively a final determination on the merits of the applicants’ claim that the outstanding injunction is depriving them of their constitutional rights pending appeal.”

In the California case, the District Court entered an injunction after a full merits proceeding. But the Ninth Circuit stayed that injunction through the use of its emergency docket. Yes, every court of appeals has an emergency docket. The Ninth Circuit issued this ruling without the benefit of oral argument or full-dress briefing. The panel relied on the same four factors that the Supreme Court traditionally applies. The panel found that California has stated “a substantial case for relief on the merits.” Moreover, the panel was “skeptical of the district court’s decision on the merits, which primarily relies on substantive due process” in light of Dobbs. On appeal, the Supreme Court vacated the stay, allowing the District Court’s injunction to go into effect. Justice Kagan objected that this ruling was premature, as the applicants had not yet exhausted all relief in the lower court. Specifically, a petition for rehearing en banc was pending–a process Justice Kagan describes as “notably reflective.” I think by “notably reflective” Justice Kagan means “notably liberal.” On the Circuit of Wackadoo, conservative cases virtually never win before the en banc court.

In the Staten Island and California cases, the dissents repeat the familiar litany of objections to the emergency docket. For example, Justice Kagan writes in the California case:

The Court receives scant and, frankly, inadequate briefing about the legal issues in dispute. It does not hold oral argument or deliberate in conference, as regular procedures dictate. It considers the request on a short fuse—a matter of weeks. And then the Court grants relief by means of a terse, tonally dismissive ruling designed to conclusively resolve the dispute. The Court does all this even though the application of existing law to the case raises tricky questions, and so cries out for reflection and explanation.

But couldn’t the same be said for the emergency docket on the Ninth Circuit? They issued their order without he benefit of oral argument, with limited briefing, on a short fuse, to resolve a tricky question. Why is it that panels of inferior courts can freely use their emergency docket, and those rulings are entitled to deference, even as the full Supreme Court is cautioned against used its emergency docket?  Indeed, as Justice Barrett notes, this case involved the sort of thing that Justice Jackson usually clamors for: an injunction entered by a district court “after a full merits process.” It is only an outlier that a single conservative District Court judge in San Diego exists, so of course his rulings should not be entitled to deference. If this was a benighted District Court judge in Boston, the facts would be different.

Why should lower courts be free to rule on their emergency docket but not the Supreme Court? We should be far more interested in what the Supreme Court thinks about these matters than a few randomly-drawn lower court judges. What capabilities do Circuit Judges Murguia, Hurwitz and Mendoza have that Roberts and crew do not? Honestly, could you pick any of these three circuit judges out of a lineup? And when it comes to the Equal Protection Clause of the Fourteenth Amendment, the elected judges of the New York Court of Appeals do not have the final say. Can you even name a single member of the New York Court of Appeals? I truly do not get this line of criticism.