Skip to comments.Supreme Court's ‘10th justice’ favors unusual tactic for Trump cases
Posted on 02/10/2019 6:10:00 PM PST by be-baw
Over the past year, the federal governments lead Supreme Court litigator has repeatedly attempted to expedite Trump administration cases by using an unorthodox maneuver, one that legal experts say is rarely successful.
Solicitor General Noel Francisco has requested on eight separate occasions, twice in the same case, that justices bypass the regional federal appeals court and instead review the ruling by a lower district court.
Those requests, known as petitions for a writ of certiorari before judgment, stemmed from challenges to President Trumps restrictions on transgender people serving in the military, its decision to wind down the Deferred Action for Childhood Arrivals (DACA) program and its move to add a citizenship question to the 2020 Census.
Court watchers say that in addition to being unusual, the strategy to leapfrog normal judicial order is aggressive and may undermine the solicitor generals credibility with the justices. Legal scholars also fear that Francisco may be forcing the court to wade into political disputes before they are ready, a move that could make the public view the court as just another political institution.
I can tell you, seeking cert. before judgment in the lower court is quite rare, and the court taking cert. before judgement in the court of appeals is even rarer, said Brian Wolfman, a professor at Georgetown Law.
The solicitor general is employed by the Justice Department and often referred to to as the 10th justice because they have the dual responsibility of serving the executive branch as a key advocate and helping the court as a kind of counselor develop the law that reflects the countrys long-term interests.
The court often asks for the solicitor general's views in cases where the federal government is not a party, and often allows the solicitor general to participate in oral arguments as whats known as a friend of the court.
The justices grant and hear oral arguments in only 80 or so cases out of the 7,000 to 8,000 petitions they receive during each nine-month term. They prefer to see the rulings from appeals courts before taking up a case, and competing views by regional circuit courts is typically a prerequisite for review at the Supreme Court.
Only four justices need to agree to take up a case for it to be heard by the Supreme Court, and Trump has shifted the balance of the court to the right with the successful nominations of Justices Neil Gorsuch and Brett Kavanaugh.
But Trump hasnt had a winning record at the appellate level, with the California-based 9th Circuit being a particular annoyance for the president.
"You cannot win if youre us, a case in the Ninth Circuit, and I think its a disgrace when people file, every case gets filed in the Ninth Circuit," he said in November after a federal district court judge in California blocked his administrations effort to prevent people who cross the border illegally from seeking asylum.
That case was appealed to the 9th Circuit, which upheld the lower courts ruling.
That appellate court was one that Francisco asked the Supreme Court to skip over to review the injunction against the transgender military restrictions and the lawfulness of rescinding DACA.
The solicitor general, as the chief advocate for the administration, clearly disagrees with some or all of these lower court decisions and may believe he is more likely to find a sympathetic audience in front of the Supreme Court, said Joshua Matz, a constitutional law professor at Georgetown Law and publisher of the Take Care blog, which provides legal analysis of Trumps constitutional duty to ensure laws are faithfully executed.
But is Franciscos strategy paying off?
The justices last month refused to review whether district courts erred in blocking the administration from enforcing its restrictions on transgender military service. The appeals courts hadnt weighed in yet, but the Supreme Court granted the administrations emergency request to enforce its policy while the matter is being litigated.
Legal experts deemed that outcome a partial victory, adding that if the goal is to get something instead of nothing, Franciscos tactics may be working.
The court has found ways so far to split the difference, said Stephen Vladeck, a professor at the University of Texas School of Law.
I think it can be read both as not endorsing what the solicitor general is doing, but also not slapping him on the wrist, he added.
The Justice Department declined to comment for this story.
The court has not taken action on the DACA disputes and likely wont during this term, which will come to a close near the end of June. If the justices agree to take up those cases, arguments wont be heard until the fall, delaying any potential ruling until 2020.
Experts, however, say the court could agree to hear the Census case this term ahead of the 2nd Circuit Court of Appeals.
The justices initially agreed to hear arguments over whether Commerce Secretary Wilbur Ross can be forced to answer questions under oath about his decision to add the citizenship question to the decennial population count. But they later removed arguments from the courts February calendar after a federal district court judge barred the Commerce Department from including the question.
Francisco then notified the justices that he plans to seek their review of the district court ruling ahead of any action by the 2nd Circuit Court. He also said he plans to ask for an expedited briefing to allow for oral arguments and a decision this term.
If the Supreme Court takes the case before the 2nd Circuit rules, it will be the first time in 15 years that the court has jumped an appeals court.
Vladeck said the Supreme Court hasnt taken that step since 2004 in U.S. v. FanFan, a case that challenged the constitutionality of federal sentencing guidelines. But the justices reviewed that case alongside a separate, similar dispute that had already gone through a review by the 7th Circuit Court of Appeals.
In his petitions to the court, Francisco acknowledges his requests are rare, but argues the courts immediate intervention is necessary to promptly resolve these policy disputes.
Even if a losing party were immediately to seek certiorari from a decision of one of the courts of appeals, this court would not be able to review that decision in the ordinary course until next term at the earliest, he argued in one request for review of a lower courts decision on DACA.
Francisco noted in his filings that the court made similar exceptions to resolve important and time-sensitive disputes in 1952, 1974 and 1981.
And the justices might agree that the circumstances surrounding the Census case warrant this extraordinary action.
In the census case there is a pure timing implication that creates an extraordinary circumstance unrelated to the merits, said Vladeck.
The government has to finalize the census questionnaire by the end of June to make sure it is printed on time, Francisco said in one filing.
Theres a really interesting and strange equipoise in how the justices have responded to this strategy so far, Vladeck said. Im just not sure how it'll hold.
The PROPER thing for the Supreme Court should do is put any District Court ruling on hold while it is being appealed...then the 9th Circuit can do whatever they want, but it will be meaningless until dispositioned by the Supreme Court.
liberal georgetown law spin?
if obama was doing this, would it not be heralded as a bold legal masterstroke by a proclaimed constitutional law scholar president?
First time I've heard that expression in my life.
I'm going out on a limb and saying that Lydia Wheeler pulled the concept out of her rear end.
Especially that court. It gets over-ruled constantly.
Where in the Constitution does it say the Supreme Court has to be “ready” to hear a case?
“First time I’ve heard that expression in my life.”
The Solicitor General, who has offices in the Supreme Court Building as well as the Department of Justice Headquarters, has been called the “tenth justice” as a result of the close relationship between the justices and the Solicitor General (and their respective staffs of clerks and deputies). As the most frequent advocate before the Court, the Office of the Solicitor General generally argues dozens of times each term. As a result, the Solicitor General tends to remain particularly comfortable during oral arguments that other advocates would find intimidating. Furthermore, when the office of the Solicitor General endorses a petition for certiorari, review is frequently granted, which is remarkable given that only 75125 of the over 7,500 petitions submitted each term are granted review by the Court.
“if obama was doing this, would it not be heralded as a bold legal masterstroke by a proclaimed constitutional law scholar president?”
Or even better, maybe it would get her appointed to the Supreme Court. That’s what happened with former Obama Solicitor General Elena Kagan.
I think this is the result of courts abusing the use of preliminary injunctions.
Thanks for setting me straight.
That makes perfect sense. Thank you
Ok, so when the SC becomes definitely more conservative, we can expect Congressional democrats to try to bust it up, right? You KNOW they aren’t going to let the court be conservative without trying to change the rules. Again. (Never mind that they were perfectly happy when the balance of the court was liberal.)
This page was last edited on 22 January 2019, at 00:13 (UTC).
“This page was last edited on 22 January 2019, at 00:13 (UTC).”
I see that now. Are you suggesting there’s a particular reason why that was?
Why not? It’s not like the Ninth Circus is worth listening to. Everyone knows their predictable decisions.
“This page was last edited on 22 January 2019, at 00:13 (UTC).”
They really need to reform the 9th District. They’re a joke. I don’t see it happening. No guts in Congress for breaking it up it smaller districts and certainly no appetite for impeachment...unless some judge commits a big nasty.
I would not put it past the “reporter” to alter her reference.
“I would not put it past the reporter to alter her reference.”
Neither would I. But Wikipedia is “updating” articles all the time except occasionally one gets locked out. I would need to see more evidence before I would seriously consider any shenanigans might be happening here.
here’s a suggestion RBG recuse herself from all “Trump cases” because of poltical comments she made during the election.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.