The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Article III Inverted: The Supreme Court Surrenders to Inferior Court Supremacy.
Chief Justice Roberts and Justice Barrett are engaging in alternative dispute resolution, rather than constitutional adjudication.
We often think of the Supreme Court as the apex institution. The Constitution called for the creation of the Supreme Court, but inferior courts were left to Congress's discretion. From early on in the Republic, it was understood that the Supreme Court, and not the lower courts, would have the final say on matters of national importance. Justice Jackson remarked "We are not final because we are infallible, but we are infallible only because we are final."
Yet, in recent weeks, there has been a change: District Court judges are in charge. In case after case, federal district court judges have issued a series of non-appealable orders, whether styled as "administrative stays" or temporary restraining orders. Courts of appeals have then declined to disturb those rulings, finding that TROs can only be challenged through mandamus, and administrative stays are unappealable altogether. At that point, the federal government is forced to run to the Supreme Court seeking emergency relief. And what has the Supreme Court done? They have kicked the issue back down to the lower court, hoping that someone else makes the tough decisions. Who is running the show here?
Jack Goldsmith calls these tactics "temporizing." That is, the Supreme Court is simply trying to bide its time to find other ways of resolving the issues. That may be right in the short run, but I think we are witnessing an inversion of Article III. The Supreme Court is no longer Supreme. Rather, the federal government is now subject to inferior court supremacy. Lower court judges are now confident they can issue any order they wish against the executive branch, and the Supreme Court will not stop them. This is the judiciary run amok.
At this point, Chief Justice Roberts and Justice Barrett are engaging in alternative dispute resolution. They are crafting these compromises to settle conflicts between the executive branch and the lower courts. They are avoiding important and foundational constitutional questions. Perhaps these delays can be chalked up to avoiding a "merits peek" on the emergency docket, but these are urgent constitutional issues that will not benefit from percolation. The Chief and Justice Barrett have been reduced to mere mediators. They are so focused on avoiding "red" or "blue" rulings and making them "purple," that they are not actually deciding the cases before them. Indeed, I am now more convinced the USAID case was an advisory opinion.
When I write that Justices should resign, I am not being a polemicist. I think they have lost their way as judges: decide the cases and let the political chips fall where they may.
