The Volokh Conspiracy
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Justice Jackson's Dissent in Department of Education v. California Treats The Federal Government Like Just Another "Party"
The dissenters no longer treat the federal government with solicitude as a coordinate branch of government.
When I was a 2L, I saw Justice Scalia give a speech to the Baltimore Federalist Society Chapter. Someone asked him whether the Solicitor General should be considered the "Tenth Justice." Scalia scoffed at the question, and said that there were only nine Justices. Still, as I recall, Scalia acknowledged that the federal government was a special litigant before the Supreme Court. Indeed, the Solicitor General is the representative of a coordinate branch of government.
Historically at least, the Solicitor General, received some special treatment. The SG had the highest number of cert petitions granted. Moreover, the Solicitor General is uniquely skilled at opposing certiorari by finding, and in some cases inventing, vehicle problems. The SG routinely obtains leave to participate in oral argument. These requests are rarely granted for any other party. The Court often invites the SG to offer views on a particular case. Critically, however, when the SG files an emergency motion with the Court, the Justices have treated the case with urgency.
Yesterday, the Supreme Court split 5-4 in Department of Education v. California. The majority seems to have treated the Solicitor General's application with the sort of comity that was due to a coordinate branch of government. Indeed, it remains unclear to me why this deference was not granted to the even-more-pressing USAID case.
Justices Jackson and Sotomayor, however, would not have afforded the federal government such treatment. Rather, the dissenters would have apparently treated the incumbent administration as just another "party." To be sure, the dissenters identified several legal errors in the majority opinion, but at bottom, the disagreement concerned whether the executive should get any relief on the emergency docket, or instead wait for a regular appeal like any other party.
Consider how Justice Jackson described the United States as just another "party" seeking emergency relief:
I, for one, think it would be a grave mistake to permit parties seeking equitable emergency relief not only to make an inadequate showing of interim harm but also to seek relief on the basis of their concerns about issues that can be addressed later, in the ordinary course.
Yet, here we are. Instead of leaving the lower court judges alone to do the important work of efficiently adjudicating all of the parties' legal claims, the Supreme Courthas decided to enter the fray.
The Government has now gotten this Court to nullify clearly warranted interim injunctive relief, deflecting attention away from the Government's own highly questionable behavior, all without any showing of urgency or need. I worry that permitting the emergency docket to be hijacked in this way, by parties with tangential legal questions unrelated to imminent harm, damages our institutional credibility.
Department of Education v. California, as the name suggests, is a conflict between the federal government and the states. The lower courts issued emergency rulings against the federal government, even as the United States argues these cases belong in a different court. The only court that can set aside these rulings is the United States Supreme Court. Justice Jackson would have the case percolate in the normal course, and perhaps return to the Supreme Court through the certiorari process. That may be fitting for the leisurely pace of Justices who sit for about about thirty weeks per year, with a healthy summer break, but it disregards an urgent plea from the federal government.
I am still struck how Justice Jackson refers to subject matter jurisdiction, sovereign immunity, and venue as "tangential legal questions." She later refers to these bedrock principles as "shiny objects."
It is thus small wonder that the Government has chosen not to press its merits arguments in this emergency application. See n. 2, supra. What better way to avoid prompt consideration of the Plaintiff States' serious claims about the unlawful arbitrariness of the Government's conduct than to demand that jurists turn away from those core questions and entertain a host of side issues about the power of the District Court on an "emergency" basis? Courts that are properly mulling interim injunctive relief (to prevent imminent harms and thereby facilitate fair adjudication of potentially meritorious claims) should be wary of allowing defendants with weak underlying arguments to divert all attention to ancillary threshold and remedial questions. Children, pets, and magicians might find pleasure in the clever use of such shiny-object tactics. But a court of law should not be so easily distracted.
The Solicitor General has made an art form out of raising arguments based on sovereign immunity, jurisdiction, and venue. But Justice Jackson sees these arguments as a diversion. I wrote an entire book about how the Obama Administration consistently rewrote the Affordable Care Act, and the only conceivable defense was that no one was injured by these acts, so there was no standing. At the time, I heard only crickets. What we are seeing here is not new.
It seems pretty clear to me that the dissenters still refuse to "normalize" the Trump Administration. Perhaps Justice Jackson cannot embed talismans in her opinion to ward off evil, but she can still deny the government the traditional presumption of regularity. And, she concludes, it harms the Court's "institutional credibility" to grant the government such comity. I disagree. Quite the opposite, the Court weakens itself in immeasurable ways by refusing to treat this administration as the duly-elected coordinate branch that it is. Let law professors argue whether this President is entitled to the presumption. Judges should stay in their own lane.
