The Volokh Conspiracy
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Why the Supreme Court's "Order" In The USAID Case Was An Advisory Opinion (Updated)
If the Court denies the writ or application, the Court cannot instruct the lower court.
I wrote a series of posts about the Supreme Court's decision in the USAID case. Most of the critics focused on my criticisms of Justice Barrett, but as could be predicted, they completely missed why I was criticizing Justice Barrett.
Here are the facts. The Solicitor General made two requests. First, the government sought an immediate administrative stay of the District Court's ruling. Second, the government sought to vacate the order issued by the District Court. Chief Justice Roberts promptly granted the temporary administrative stay. A week later, the Court, by a 5-4 vote, vacated the temporary administrative stay. The Court also denied the government's application.
Consider what the Court stated:
THE CHIEF JUSTICE entered an administrative stay shortly before the 11:59 p.m. deadline and subsequently referred the application to the Court. The application is denied. Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines. The order heretofore entered by THE CHIEF JUSTICE is vacated.
Justice Alito dissented from the denial of the application to vacate the order:
JUSTICE ALITO, with whom JUSTICE THOMAS, JUSTICE GORSUCH, and JUSTICE KAVANAUGH join, dissenting from the denial of the application to vacate order.
I see three significant problems with the majority "order," if I can even call it that.
First, if the only action taken was to vacate the temporary administrative stay, what basis is there to instruct the District Court on how to take some action in the future: "the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines." The Court vacates a stay because the Court declines to exercise further supervision of the lower court. By vacating the stay, the Court eliminates its power to supervise the lower court.
Second, given that the Court denied the government's motion, it is not clear how it would have jurisdiction to say anything at all about the case. The Court has jurisdiction under the All Writs Act by granting relief to an aggrieved party. The Court cannot exercise the judicial power in the abstract, without even granting the writ. The Supreme Court lacks any sort of free-floating authority to issue commands or suggestions.
Third, if the Court is giving an instruction to the lower court, without actually availing itself of appellate jurisdiction, then the Court issued an advisory opinion. I made this point last week:
Third, given that the Court denied the application, any discussion of the merits would be an advisory opinion. Yet the Court strongly hints that the lower court was wrong on the merits. "Clarifying" the obligations of the government is a nice way of saying the prior ruling was not quite clear enough. If the order against the government was insufficiently clear, the remedy would be to vacate the lower court opinion with instructions to clarify. (Then again, the Supreme Court "clarified" Bruen in Rahimi by partially overruling it, so words really have no meaning on the Roberts Court.) But the Supreme Court asked the District Court to clarify its ruling, without ordering it to do so. The Supreme Court cannot make suggestions. It can only issue orders.
I have racked my brain, and cannot think of a case where the Supreme Court gave a substantive instruction to a lower court without also granting some form of relief. In the Hampton Dellinger case, the Court did nothing--neither grant nor deny the motion. It simply held the motion in abeyance, which was procedurally proper, if unusual. On the emergency docket, the Court will sometimes deny the application with the understanding that the lower court will move promptly. I suppose those instructions are acceptable, since there is no actual lower court ruling to affirm or reverse. The Court is denying the request to order the lower court to rule more quickly. Moreover, in an emergency posture, where the issue may become moot if there is too much delay, the Court should have power to protect its own jurisdiction. In candor, I think it would be better for the Court to grant the writ solely for the purpose of sending the "hurry up" instruction to the lower court. But I'm not sure it is needed. If I'm missing any obvious case, please email me. I suspect if there is an example here or there from Chief Justice Roberts, it will suffer from similar problems.
But here, the Supreme Court told the lower court to pare back its ruling. And so it did. Yesterday, Judge Ali issued a lengthy opinion explaining what funds should be paid out. Would he have done any of this absent the Supreme Court's admonition? I am doubtful. You see, the Court was able to effectively vacate a lower court opinion without saying so. Why would it do that? My theory: the Chief Justice and Justice Barrett do not want to be seen as ruling for Trump by granting the application, so instead they denied the application, hoping that the lower court narrows the ruling against Trump, thereby giving Trump a victory. The difference between the majority and Justice Alito's dissent is not as large as it may seem. But the dissent at least had the forthrightness to not pass the buck to the lower courts. This is the inversion of Article III I wrote about.
To use an example, could the Supreme Court deny a petition for a writ of certiorari, but in the same order say the lower court should do X, Y, and Z in future proceedings? Of course not. By denying the writ, the Court declines to exercise jurisdiction over the case. That is the end of the matter, full stop.
Now, it is true that individual Justices routinely dissent from the denial of certiorari, and offer guidance of what the lower court can do. In Texas v. Hopwood, Justice Ginsburg concurred in the denial of certiorari. In American Tradition Partnership v. Bullock, four Justices dissented from the grant of certiorari. I've never fully understood the legal basis for dissentals and concurrals, but I do not see any jurisdictional problems. The individual member is complaining that the Court should have exercised jurisdiction, but in the absence of that grant, the Justice is telling the lower court how he or she sees the issue.
But you will never see a dissent from the denial of certiorari from four or five justices. Why? If that many Justices agree, then the case will be granted. Yet this is basically what happened in the USAID case. Five members of the Court effectively denied the exercise appellate jurisdiction, but still gave an instruction to a lower court. This was an abuse of process. And I doubt anyone in the majority even noticed. That's what happens when you are more focused on these creative compromises then deciding the legal issues presented.
I think Justice Barrett's decision to join this majority opinion was a fundamental mistake. It would have been far better for the Court to simply vacate the temporary stay and deny the application, with a single justice concurring about what should happen on remand. In a 5-4 decision, lower court judges can take the hint from the deciding vote. That would have been procedurally proper. But no one wanted to stick their neck out on this one. Instead, the five members of the majority shirked their responsibility, hoping the lower court would clean things up.
My criticism of Justice Barrett has nothing to do with loyalty to Trump or anything like that. My writings long predate the 2024 election. Instead, my opinion focuses on the judicial role. Chief Justice Roberts long ago transitioned from deciding constitutional questions based on law to arranging these faux compromises that result in rewriting statutes and ignoring settled rules of procedure. He does this so much it has become second-nature. If any other Justice adheres to the John Roberts school of judging, I will offer them the same career advice.
I will have much more on this issue in due course.
Update: I made a significant error in this post, which I have corrected. The Court did deny the order; in my earlier post I wrote that it remained pending. The bottom line conclusion about the advisory opinion, though, I think still stands. I try to fix my errors as soon as they are pointed out, and I am grateful for those helpful emails.
