Monday, June 19, 2017
Under the Rule 10 of the Supreme Court Rules, the Court will only grant a petition for a writ of certiorari for “compelling reasons.” In Rule 10, the Court provides three examples that “indicate the character of the reasons” that the Court considers in granting certiorari:
(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power;
(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;
(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.
On June 1, the Trump Administration filed a petition for a writ of certiorari, asking the Court to hear the case Trump v. International Refugee Assistance Project, which is the Fourth Circuit case challenging President Trump’s Executive Order on visas from certain countries, commonly referred to as the travel ban. There is also a case in the Ninth Circuit challenging the ban. In both cases, the respective district courts enjoined the ban and the circuit courts largely affirmed those decisions.
Should the Court grant certiorari in these cases? My friend Professor Josh Blackman has argued in a June 11 op-ed in the New York Times that the Court should indeed grant certiorari and provide “finality.” Professor Blackman argues that the Court should hear arguments promptly and issue a decision “as soon as practicable.” He cites a several examples of separation of powers cases that were decided quickly by the Court (within about a month), including the Pentagon Papers Case, the Steel Seizure Case, and Bush v. Gore. Professor Blackman argues:
The legal status of President Trump’s executive order, and indeed that of his entire administration, needs finality, sooner rather than later. Even if five justices plan to strike down the executive order, they should do so now, and not in the fall, or worse, one year from now. The lower courts desperately need guidance. Should judges look to Mr. Trump’s Twitter feed to determine his true intent? Should the judiciary privilege statements from the commander in chief that conflict with those of the Justice Department? Are all of Mr. Trump’s actions that affect Muslims, at home and abroad, perpetually tainted by his campaign statements? If the Supreme Court signals that the answer to those questions is yes, then the lower courts may declare open season on this administration in contexts far beyond the travel ban. If a more circumspect Supreme Court signals that the answer is no, then, perhaps, the lower courts will fall into line.
Under Professor Blackman’s reasoning, the Court is facing “compelling reasons,” envisioned in Rule 10—namely, “an important question of federal law that has not been, but should be, settled by this Court.”
While I sympathize with the argument, I worry that “haste makes waste” or, more accurately, bad constitutional law. Many of the cases that been rushed through the Court on big separation of powers issues result in highly fractured decisions (think the Pentagon Papers Case, the Steel Seizure Case, and Bush v. Gore) and/or a lack of acceptance by a significant portion of We the People (think Bush v. Gore). I fear that any overly speedy SCOTUS decision in the travel ban cases would end up with a reputation like Bush v. Gore. Perhaps even a non-speedy decision would suffer the same fate. At a minimum, if the Court does decide to take the case, I hope that they devote all summer to it, not just July, even if it means August in D.C. I emailed this post to Professor Blackman before posting it and he said that he does not mind the Court taking August to decide the cases either, but he does not want to see the issue linger on for six months. Either way, we should know soon (maybe even later today) if the Court plans on hearing the case.