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Steve Vladeck

@steve_vladeck

Jan 24

Memorializing my earlier tweet on the UNC affirmative action case, here's a chart on how much more often #SCOTUS is granting certiorari "before judgment":

3 grants from June 1988–August 2004;
0 grants from August 2004–February 2019; and
*14* grants from February 2019–present.

These are cases in which the Court is bypassing the courts of appeals to expedite plenary merits review.

And I chose June 1988 because that's the last time Congress meaningfully altered the Court's appellate jurisdiction (including with respect to certiorari "before judgment").

Two things that my earlier tweet got wrong:

I had counted *15* recent grants because I wrongly included a companion case that was *not* before judgment; and

I had suggested the cutoff was January 2018 not February 2019 because I had miscoded an interim order in the Census case.

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Steve Vladeck

@steve_vladeck

Nov 2, 2021

The Supreme Court's 1908 ruling in Ex parte Young was a judicial expansion of remedies to enforce the Constitution that came in direct response to efforts by a state (Minnesota) to thwart the enforcement of a controversial constitutional right by exploiting prior #SCOTUS rulings

Against that backdrop, the outrage at the possibility that the current Supreme Court might revisit the core principles underlying that decision in response to similarly deliberate efforts by a state to frustrate the enforcement of constitutional rights is rather ... ahistorical.

Ex parte Young got around Hans v. Louisiana—which held that states can’t be sued in federal court without their consent (by reading the word “another” out of the Eleventh Amendment)—by holding that suits against state officers *aren’t* against the state, at least under the 11A.

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Steve Vladeck

@steve_vladeck

Nov 1, 2021

This prediction is worth what you paid for it, but it sure *feels* like this is heading toward a very narrow, 6-3 ruling holding that Ex parte Young *doesn't* preclude injunctive relief against court clerks in these specific circumstances — and remanding for further proceedings.

And that holding might be enough to convince a broader majority to punt the federal government's case (and deny DOJ's application to vacate the Fifth Circuit's stay on mootness grounds).

One big clue will be how many Justices during the U.S. v. Texas argument ask about what happens to the DOJ suit if they rule for the providers in the first case...

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Steve Vladeck

@steve_vladeck

Oct 30, 2021

A day later, I’m still quite puzzled by the Barrett/Kavanaugh concurrence in the Maine case.

If there’s a “discretionary judgment” about whether #SCOTUS should grant emergency relief to a party that meets the statutory standard, what considerations cabin/inform that discretion?

Emergency relief isn’t certiorari; this isn’t about whether the Justices *want* to decide the case. And yet, here are the two most important Justices (at least on this) saying they’ll pick and choose who satisfies the standard (which they get wrong) based on unspecified criteria.

That’s what’s so puzzling to me: This opinion certainly *appears* to be a response to mounting criticisms of the “shadow docket.” But I don’t see how saying “we’ll pick and choose who gets relief based upon unspecified considerations” is *actually* responsive to those critiques.

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Steve Vladeck

@steve_vladeck

Oct 22, 2021

#BREAKING: #SCOTUS agrees to hear *both* the providers' *and* the federal government's challenge to #SB8 on a SUPER-expedited basis (argument on November 1), but "defers" DOJ's request to put #SB8 back on hold in the interim.

Justice Sotomayor dissents from the Court's decision to *defer* DOJ's request to put #SB8 back on hold. No other writings. Merits arguments in 10 days:

supremecourt.gov/opinions/21pdf…

Importantly, the Court *limited* the grant of certiorari to whether the US can sue "the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced." So the *substance* of #SB8 is *not* before the Court.

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Steve Vladeck

@steve_vladeck

Oct 15, 2021

1. Last night's Fifth Circuit order granting Texas's application to stay the injunction against enforcement of #SB8 in US v. TX includes exactly one sentence of analysis — that relief is compelled by the Fifth Circuit and #SCOTUS rulings in Jackson.

Here's why that's just wrong:

2. Recall that "Jackson" is the suit by abortion providers that had attempted to prevent #SB8 from ever going into effect. The Fifth Circuit stay in that case was based upon various immunity defenses and the fact that the named private defendant might never try to enforce SB8.

3. The whole point of the federal government's *separate* lawsuit is that many of those immunity doctrines do *not* apply when the U.S. is the plaintiff, as Judge Pitman explained at great length in his detailed, 113-page ruling supporting the injunction:

int.nyt.com/data/documentt…

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