The Volokh Conspiracy
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Very often a Supreme Court decision–especially from the shadow docket–is described as a "punt." I hesitate to use this phrase for popular press, because not everyone knows what a "punt" is. Law professors should try to avoid sports analogies–many students simply do not follow sports. Indeed, even people who are generally familiar with the "punt" from American football may not be familiar with why and how a punt is used. And the connection between a football punt and a Supreme Court punt is not always clear. Here, I will explain the punt for a person unfamiliar with sports. And I will break down Supreme Court punts into four categories: (1) run out the clock, (2) improve field position, (3) special team forces a turnover, and (4) the fake punt.
Let's start by describing the punt. Assume there is a football game between the Giants and Cowboys. At any given point during a game, a team can be on offense or on defense. When the Giants are on offense, the Cowboys are on defense. And when the Cowboys are on offense, the Giants are on defense. Our hypothetical game begins with the Giants on offense. An American football field is 100 yards in length. The Giants will try to advance the ball from one side of the field to the other. They can do so by throwing or running with the ball. (The specifics of how to throw or run are not important for this hypothetical). And the Cowboys, when on defense, will try to prevent the Giants from throwing or running the ball forward.
Teams have four tries, or downs to advance the ball ten yards. If the Giants can move the ball ten yards, the offensive unit will receive a new set of four downs. If the Giants can cover all 100 yards on the field, the offensive unit will score a touchdown, worth six points. Each end of the field is known as an end zone. But what happens if the Giants cannot move the ball ten yards after four downs? For example, what happens if the Giants' drive stalls at the ten-yard line? At that point, the Giants lose possession of the ball. The Cowboys will go on offense, and begin at the Giants' ten-yard line. And the Giants will play defense to prevent the Cowboys from advancing the ball. Now, the Cowboys will only have to move the ball ten yards to score a touchdown.
On fourth down, it is often very risky to pass the ball, or run with the ball. Instead, offensive units will usually try to execute one of two types of kicks. The first type of kick is known as a field goal attempt. Here, a kicker will try to kick the ball through a goal post. This U-shaped structure is located in both end zones at both ends of the 100-yard field. Kickers who can successfully kick the ball through the goal post will be rewarded with three points. If the kicker misses the goal, then the other team takes over on offense. The best professional kickers can make a field goal as long as sixty yards. In our hypothetical game, it would be impossible for the Giants kicker to kick a field goal from the ten-yard line. Instead, the Giants would choose the second type of kick, and the subject of this post: a punt.
With a punt, the kicker (known as the punter) kicks the ball towards the opposite end of the field. Usually, teams will punt on fourth down to avoid losing field position. In our hypothetical game, the Giants would probably punt the ball on fourth down from the ten-yard line. Let's say the Giants punter is able to kick the ball forty yards, so that the ball lands on the fifty-yard line. Then, the Cowboys offensive unit would receive the ball on the fifty-yard line. And, the Cowboys have to advance the ball fifty yards in order to score a touchdown.
Why would the Giants sacrifice with a punt on fourth down? Why not try to throw or run with the ball on fourth down? Perhaps on fourth down, the Giants could have gotten lucky, and picked up ten yards. Or the Giants could have thrown a long touchdown pass. A punt is a strategic move. The Giants made a calculation: the Cowboys are much less likely to score on a drive that begins at the fifty-yard line, than on a drive that begins on the ten-yard line. The Giants would rather sacrifice the benefit of a first down, to negate the risk of giving up a touchdown. For example, if the Giants have a very strong defensive unit, the Giants coach may be comfortable with this tradeoff. But what if the Giants have a very weak defensive unit? Or what if the game is about to conclude, and the Giants need to score a touchdown right away? Here, the coach may be willing to throw or run the ball on fourth down–even if the failure to obtain a new set of downs means the Cowboys could obtain superior field position.
Now, back the Supreme Court. I think there are four types of Supreme Court punts.
Punt #1: Punt to run out the clock
In our first hypothetical game, the score is Giants 7, Cowboys 6. There are five seconds left in the game. It is fourth down, and the Giants have the ball on their own 10 yard line. If the Giants decide to run the play, and fail to get a first down, the Cowboys would obtain possession, and could kick a game winning field goal. That play-call would be a nonstarter. Instead, the Giants would decide to punt the ball as far away as possible. The hope is that the kick itself takes five seconds, and by the time time the play finishes, the clock is at zero, and the game is over. Hopefully, the Cowboys, would not be able to recover the ball and score in that time. Here, the purpose of the punt is to run out the clock. But, it is possible that the punt is poorly executed, and there is still time left on the clock when the play concludes. And the Cowboys could manage to throw a Hail Mary touchdown pass, winning on the last play of the game.
The Supreme Court, too, can punt as a way to run out the clock. The Court followed this playbook in Danville Christian Academy v. Beshear. The Court held onto the case until the very last minute, and then declined to rule because the Governor's order was about to expire on its own terms. The Court denied the appeal, hoping the case would never come back.
Punt #2: Punt to recover the ball with less time on the clock, but better field position.
In our second hypothetical game, the score is Giants 6, Cowboys 7. There are two minutes left. It is fourth down, and the Giants have the ball on their own ten yard line. If the Giants decide to run the play, and fail to get a first down, the Cowboys would obtain possession, and could potentially run out the clock, and win the game. Instead, the Giants would punt the ball far away. And, hopefully, the Giants defense could prevent the Cowboys from obtaining a first down. And, hopefully, the Giants would regain possession with far better field possession, with some time left on the clock. And, hopefully, score with some time remaining on the clock.
The Supreme Court, too, can execute this type of punt. The Court followed this playbook in Trump v. New York (the census case). Here, the Court found that the case was not yet ripe. But, this controversy will almost certainly become ripe in the very near future. At that point, the Court would regain jurisdiction over the matter. And the Court could decide the case on much stronger grounds–where the specific facts are known. It is also possible that the Trump Administration will prove unable to actually implement the new rule. And the case will simply go away.
Punt #3: Kick the ball away, and hope your punt coverage team can force a turnover
In our third hypothetical game, the Giants punt the ball away. However, the Cowboy receiver drops the punt. Moments later, a member of Giants punt coverage team is able to recover the ball and score a touchdown. Here the punt coverage team was able to force a turnover. These plays are rare in football, but can quickly swing a game.
The Supreme Court can also execute this play. Now, the Justices do not have punt coverage teams. But they do have lower Courts. The Supreme Court may not wish to make a difficult ruling. But the Justices can return a case to a lower court, knowing full well how those judges would rule. For example, let's say a case arose from the Fifth Circuit, with a panel that includes three judges on President Trump's short list. The Court could simply vacate the decision, with minimal instructions, and let the court below finish the job.
Punt #4: The fake punt
In some games, a football team will line up their players as if there will be a punt. However, the formation is a decoy. Instead, the punter tries to run forward to obtain the first down. A fake punt is a very risky move. If the play fails, the other team will obtain possession with good field position. Even worse, if the punter drops the ball, the other team can pick up the fumble and score a touchdown.
The Supreme Court can also execute a fake punt. Here, the Justices ostensibly dismiss a case on some sort of jurisdictional ground. But there are some hints in the opinion that settle the merits question. Even though the instant case may not be resolved, the Court can still advance the law.
I hope this explanation was clear and easy to understand. If I missed any other examples, please feel free to email me. At some point, I'll publish this concept in a more formal setting, and welcome suggestions.
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