The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Justice Kagan Doth Protest Too Much About The Emergency Docket
Justices Kagan, Sotomayor, and Jackson could have joined Justice Kavanaugh to grant cert in the CPSC case, but they didn't.
In Trump v. Boyle, the Court granted a stay, and allowed President Trump to remove members of the Consumer Product Safety Commission. This order seems to follow from Trump v. Wilcox. The per curiam order states, "the case does not otherwise differ from Wilcox in any pertinent respect." There has been some debate over the years on whether emergency docket rulings are precedential. I think that debate has been settled.
The vote here was (likely) 6-3. Justice Kagan wrote a dissent, joined by Justices Sotomayor and Jackson. Kagan once again complains that the Court "[o]nce again . . . uses its emergency docket to destroy the independence of an independent agency." She writes that the "same majority" granted relief in both Boyle and Wilcox. With emergency docket rulings, it is not known that the same justices joined both majorities, but Kagan confirms the obvious. Kagan says that "majority has also all but overturned Humphrey's Executor v. United States" (she's right). Kagan also cites Justice Barrett's concurrence in Doe v. Mills abut deciding cases "on a short fuse," but I no longer think even Barrett agrees with that opinion. One could say that Moyle cut the fuse short. I'll show myself out. [Update: The case is in fact Boyle, not Moyle, so my bris joke does not work.]
Yet, there is a shortcoming with Justice Kagan's ruling. She is unhappy that the Court is deciding this case on the emergency docket. The obvious rejoinder would be to decide the issue on the regular docket by granting a petition for a writ of certiorari. If the case was granted now, it could be argued in the fall, and settled definitively.
Indeed, there was a fourth vote for cert waiting. Justice Kavanaugh wrote a brief concurrence, explaining why he would have granted certiorari before judgment. Why didn't Justice Kagan and her colleagues join Justice Kavanaugh, and put the case on the regular docket? If Humphrey's Executor is "all but overruled," why not decide the case in the normal order, and settle the issue nationwide? Methinks that Justice Kagan doth protest too much. Then again, does it take four votes or five votes to grant cert before judgment?
Justice Kavanaugh's brief concurrence reiterates his CASA concurrence:
When an emergency application turns on whether this Court will narrow or overrule a precedent, and there is at least a fair prospect (not certainty, but at least some reasonable prospect) that we will do so, the better practice often may be to both grant a stay and grant certiorari before judgment. In those unusual circumstances, if we grant a stay but do not also grant certiorari before judgment, we may leave the lower courts and affected parties with extended uncertainty and confusion about the status of the precedent in question. Moreover, when the question is whether to narrow or overrule one of this Court's precedents rather than how to resolve an open or disputed question of federal law, further percolation in the lower courts is not particularly useful because lower courts cannot alter or overrule this Court's precedents. In that situation, the downsides of delay in definitively resolving the status of the precedent sometimes tend to outweigh the benefits of further lower-court consideration. So it is here. Therefore, I not only would have granted a stay but also would have granted certiorari before judgment.
In short, given the importance of this case, percolation is not very useful, and the Supreme Court should settle the issue definitively sooner rather than later.
It seems that the Court's docket next term will have cases on birthright citizenship, overruling Humphrey's, the Voting Rights Act, transgender athletes, and much more. Things will heat up!
