The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court is a court, like any other. The only operative portion of a Supreme Court opinion comes with the conclusion on its final page. The authoring Justice or per curiam court writes that "[t]he judgment of the" lower court is "affirmed," "reversed," "vacated," or "the case is remanded for further proceedings consistent with this opinion." After the Court announces its judgment, the opinion always ends with four critical words: "It is so ordered." Retired Chief Justice Burger even authored a book by this title. The Supreme Court's decisions do not immediately permeate the rule of law from sea to shining sea. These four words trigger a far more mundane process that is typical to all courts.
Under Supreme Court Rule 44, both parties have "25 days after entry of the judgment or decision" to file a petition for rehearing. In the event that the case is urgent, pursuant to Rule 45.2, the Court can direct the clerk "to issue the mandate in [the] case forthwith." For example, the Court took this action in Bush v. Gore. Indeed, the Court did so as well in Cooper v. Aaron, but its judgment was swiftly resisted in Little Rock. Alternatively, the prevailing party can file an application for the Court to issue the judgment forthwith. The petitioner took this course in Boumediene v. Bush.
Rule 45 is a bit complicated. It has three paragraphs:
- All process of this Court issues in the name of the President of the United States.
- In a case on review from a state court, the mandate issues 25 days after entry of the judgment, unless the Court or a Justice shortens or extends the time, or unless the parties stipulate that it issue sooner. The fling of a petition for rehearing stays the mandate until disposition of the petition, unless the Court orders otherwise. If the petition is denied, the mandate issues forthwith.
- In a case on review from any court of the United States, as defined by 28 U. S. C. § 451, a formal mandate does not issue unless specially directed; instead, the Clerk of this Court will send the clerk of the lower court a copy of the opinion or order of this Court and a certified copy of the judgment. The certified copy of the judgment, prepared and signed by this Court's Clerk, will provide for costs if any are awarded. In all other respects, the provisions of paragraph 2 of this Rule apply.
Paragraph two concerns appeals from state courts. In such cases, "the mandate issues 25 days after entry of the judgment."That date can be modified if the Court or parties request an earlier date. But the mandate is stayed if any party requests a petition for rehearing. Such motions are rarely granted. But until the mandate is issued, the state court lacks jurisdiction to take any action.
Paragraph three concerns appeals from federal courts. In federal appeals, there is no formal mandate, unless the Court specifically directs that a mandate should issue. Eventually, the Clerk of Supreme Court can send the clerk of the lower court a copy of the judgment. But there is no fixed time frame in which the judgment must be sent. The final sentence of paragraph 3 states, "In all other respects, the provisions of paragraph 2 of this Rule apply." Does that sentence mean that the Clerk must send the judgment within 25 days? Does that sentence mean that the parties can request the Clerk to send the judgment sooner than 25 days? The rules do not answer either of these questions directly, but practice suggests that the answers are yes and yes.
The Supreme Court decided Trump v. Vance on June 9. This appeal came from the Second Circuit. Therefore, there is no requirement that a formal mandate must issue, in 25 days or ever. On July 15, the New York District Attorney filed an application for issuance of a copy of the opinion and certified copy of the judgment forthwith. President Trump's private counsel consented to this motion.
Vance did not ask for a copy of the "mandate." There is no formal mandate under Rule 45.3. Instead, Vance asked for "a copy of the opinion" and "a certified copy of the judgment" to be sent to the Second Circuit. Yet, Vance still relied on Rule 45.2. I think he needs to rely on Rule 45.2 to provide a method to request the issuance of the judgment before 25 days. (See the last sentence of Paragraph 3). Finally, this request was sent to Chief Justice Roberts, rather than Justice Ginsburg, who is the Circuit Justice of the Second Circuit. Two days later, on July 17, Chief Justice Roberts granted the request.
The House of Representatives also requested the in Trump v. Mazars judgment should be issued forthwith (see here and here). However, Trump's private counsel opposed that request. I don't see any urgent reason for the Chief to grant this request. The House lost the case.
A similar issue arose in the DACA litigation. Regents was decided on June 18, 2020. And the docket still does not reflect the transmission of a formal judgment to the Circuit Court. But twenty-five days have already elapsed. Once again, people should recognize that the Supreme Court's judgments are not self-executing. Soon enough, district courts can carry the Supreme Court's judgment into execution. One District Court in Maryland has already issued such an order.
(The introduction to this post is based on my article, The Irrepressible Myth of Cooper v. Aaron.)