Stephanie Barclay on “The Emergency Docket’s Mistaken Birthday”

Was the Clean Power Plan the first executive branch action halted by Supreme Court order on the “shadow docket”? Was it even the first Obama Administration action stopped in this way? Over at SCOTUSBlog, Stephanie Barclay explains why the answer is “no.”

Her piece begins:

Last Saturday, the New York Times published a trove of internal Supreme Court memoranda from February 2016 and declared that the five-day deliberation over President Barack Obama’s Clean Power Plan marked the birth of the court’s modern “shadow docket.” Stephen Vladeck, writing before the leak and again after it, made the same claim: the Feb. 9, 2016 rulings were, he wrote, “the birth of what we might call the modern emergency docket.” Jack Goldsmith, pushing back against the broader Times framing, narrowed the point but did not abandon it – the 2016 order, on his account, “fairly marks the beginning of the Court’s modern active engagement with presidential initiatives via interim orders.”

Each of these accounts locates the emergency docket’s initial engagement with presidential initiatives on a single winter evening in 2016. Each is wrong. An earlier interim order blocking an executive branch regulatory program as applied to a large group of challengers was not entered by Chief Justice John Roberts. It was entered by Justice Sonia Sotomayor, acting alone, more than two years before the Clean Power Plan application landed at the court. And her approach was adopted not long after by a unanimous Supreme Court.

The first example Barclay points to was Justice Sotomayor’s entry of a preliminary injunction of the so-called “contraception mandate” as applied to the Little Sisters of the Poor:

The district court denied their preliminary injunction motion on December 27. The U.S. Court of Appeals for the 10th Circuit denied a request for an emergency injunction pending appeal on December 31. Enforcement was set to begin at midnight.

Sotomayor, as circuit justice for the 10th Circuit, received the Little Sisters’ emergency application that evening. She granted it within hours, before she herself led the ball drop in Times Square that New Year’s Eve. Her order was only one paragraph long and issued without merits briefing, oral argument, or explanation.

It enjoined the federal government from enforcing a premier presidential regulatory initiative before the 10th Circuit had ruled on whether the district court had correctly denied preliminary injunctive relief. The New York Times editorial board immediately criticized the ruling as “perplexing,” arguing that Sotomayor had granted an “audacious” request. The criticisms focused in part on the fact that “[a] federal trial court denied a preliminary injunction . . . and a federal court of appeals declined to issue an injunction pending appeal” because they found interim relief unnecessary. Yet Sotomayor’s ruling went the other way.

Three weeks later, without recorded dissent, the Court issued an order broadening the injunction to protect several hundred other religious organizations pending the outcome of Little Sisters’ appeal.

By any metric the Times applies to the February 2016 orders, this was a modern emergency docket decision. An unsigned order. No merits briefing. No oral argument. An intervention ahead of the 10th Circuit’s full appellate resolution. A major decision limiting enforcement of a signature presidential initiative. And – a feature the 2016 orders notably lack – unanimity across the court’s ideological divisions.

Were that not enough, in 2014 the Court granted Wheaton College’s request for an injunction pending appeal and in 2015 stayed the mandate in Zubik.

As Barclay notes, one can only understand the evolution of the “shadow docket,” and the Court’s actions, if one also consider the dynamics to which the Court has been responding (a point I have made repeatedly and at length). Barclay writes:

What has been unprecedented about the last decade is less about the court’s engagement on the emergency docket. That engagement has been a response. What has been unprecedented is, among other things, the executive action to which the court has responded – regulatory programs and enforcement actions designed, through their fine structures or compliance timelines, to impose the costs of capitulation before any court could reach the merits, rendering any merits review after the fact a nullity. Roberts voiced this exact concern in his Clean Power Plan memo, noting that the court had learned from recent experience showing that the EPA had found ways to “effectively implement an important program we held to be contrary to law.” The continuity in the court’s doctrinal response tracks that pattern, not partisan alignment.

The HHS mandate raised that problem in an acute form. The government had structured the regulation and its penalty regime so that compliance costs would accrue daily from the moment of enforcement. For a small religious nonprofit, the effect was to force capitulation or bankruptcy before any appellate court could adjudicate its religious claims. Justice Samuel Alito’s private 2016 memo, concerned that voluntary compliance with the Clean Power Plan would render merits review “a mere postscript,” voiced a concern that had been addressed – without dissent – in 2014.

The same structural concern has driven the court’s engagement with the current Trump administration. When the executive branch attempted to remove alleged Tren de Aragua members under the Alien Enemies Act on a timeline calculated to foreclose any judicial testing of the removals’ lawfulness, the court enjoined the removals on an emergency basis. When the administration sought to federalize and deploy the Illinois National Guard on contested statutory grounds, the court denied its stay application. When the administration sought emergency relief to remove a Federal Reserve governor, the court declined to resolve the application on the emergency docket and deferred it for full oral argument. . . .

The story the “shadow papers” tell, read alongside the cases the Times chose not to include, is not one of a court that stumbled into something novel on Feb. 9, 2016. It is one of a court that has been responding, for more than a decade, to a new and recurring problem: executive action, and at times lower-court action, whose design or pace would render ordinary merits review a formality.