The Ninth Circuit’s En Banc Shadow Docket

Last week, the Supreme Court used its emergency docket to review to cases from two lower courts’ emergency docket. The postures were different but the upshot was clear: the United States Supreme Court thought that the New York Court of Appeals and the Ninth Circuit did not properly exercise its discretion with emergency appeals. As I wrote, “inferior courts on both coasts used their emergency dockets, and the Supreme Court reversed both rulings.”

Despite all of the criticism of the Supreme Court’s emergency docket, we should not forget that lower courts use their emergency docket all the time. Why should lower courts be free to rule on their emergency docket but not the Supreme Court? Indeed, the failure of lower courts to grant emergency stays necessarily leads to emergency Supreme Court appeals.

The latest episode from the Ninth Circuit illustrates this precedent. The Ninth Circuit, as matter of practice, will grant an administrative stay to block the removal of every alien. The merits are irrelevant. The de facto rule is that removals cannot proceed. And, as with any administrative stay, there is no explanation or reasoning. The Ninth Circuit issues these orders from the shadow docket. These stays, no matter how frivolous, can last for months or years. This practice dwarfs any concerns that Justice Barrett had with administrative stays from the Fifth Circuit.

Judge VanDyke described this practice in a dissental in Rojas-Espinoza v. Bondi. He compared the Ninth Circuit to the “wonderful Circuit of Wackadoo” where all the motions for administrative stays in immigration cases are granted:

So the judges of Wackadoo adopted a convenient, but unwritten, practice. Whenever a party made a request for any form of preliminary relief, the Circuit would automatically grant the requested relief as an “administrative stay” pending review. Then the Circuit would file away the technically unresolved motion for months or years, until some of its judges got around to reviewing the merits of the case. Then at that time, the judges could conveniently dust off the motion for preliminary relief to resolve it simultaneously with the merits decision.

But this plan didn’t work out as the cases piled up:

In short order, the Circuit of Wackadoo’s docket became more crowded than ever with thousands of utterly meritless motions for stays and injunctions. For the hardworking judges of Wackadoo, this only reinforced their steadfast belief that the automatic-grant and deferred-review process was now more essential to the orderly and efficient management of their docket than ever before.

As Chilli Heeler would say, Wackadoo!

Yesterday, the newest member of the Ninth Circuit, Judge Eric Tung, opined on the issue in another opinion from the same case. Tung explained that the motion for a stay in this case was “patently frivolous” and cited a statute authorizing stays that had been repealed. Tung further wrote that the practice of automatic stays is inconsistent with Nken v. Holder. (A similar issue arose with the District of Maryland’s rule to automatically grant habeas in removal cases.) This policy, Tung writes, lacks any legal justification:

Nevertheless, our court has disregarded (and continues to disregard) these instructions in its implementation of an automatic-stay policy. In this court, prolonged stays of removal are issued virtually as a matter of right; the court reflexively grants stays pending the appeals process; it places the burden not on the applicant to show why a stay is warranted, but on the government to oppose the stay and to seek a more expedient resolution; and it does not assess any of the traditional stay factors, including the merits or the public interest, before granting the automatic stay. Our practice, simply put, lacks any legal justification.

And the Ninth Circuit took this action on its shadow docket:

This court has now vacated the panel’s decision. The en banc panel appears to have validated the three-judge panel’s reasoning by swiftly issuing a terse order denying the petitioners’ motion to stay removal. But the en banc panel says absolutely nothing about whether the court’s practice of granting prolonged automatic stays is lawful. The three-judge panel carefully explained that this court’s practice defies Supreme Court precedent. Yet not a single member of this en banc panel has tried in its order to rebut that conclusion. Meanwhile, the majority has successfully erased it as precedent. Under cover of darkness, the en banc court buried the body, and there is not much hope of a resurrection. . . .

But reasoned disagreement, explained in our decisions, is a hallmark of our system. We are not party functionaries of a politburo in which raw political power is asserted in backrooms and without reason. We are members of a court. We exercise judgment, not will, and we are bound by law. “[R]eason,” as Lord Coke reminds us, “is the soul of law.” Milborn’s Case, 7 Co. Rep. 6b, 7a (1587). In acting without reason here, we risk losing our character as a court.

Sounds like a shadow docket to me.

If lower courts can use the emergency docket to issue unexplained rulings while wiping out panel rulings, then certainly the Supreme Court should be able to do the same for panel rulings. Indeed, I think the need for a Supreme Court shadow docket is far greater than the need for a lower court shadow docket. In many ways, this inferior court shadow docket operates as a judicial version of the deep state: a permanent bureaucracy that experts insist must be deferred to. The Supreme Court wrestles mightily with trying to get these lower courts to fall into compliance. Some lower court judges have been reversed twice by SCOTUS in the same case. But as Judge Reinhardt would say, SCOTUS can’t catch them all. Dare I say there is a “judicial resistance”? Stay tuned for a future essay on that topic.