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The Supreme Court is turning into a court of first resort

By Jamelle Bouie


The Supreme Court recently granted a writ of certiorari “before judgment” in Biden v. Nebraska, which will determine the legality of the president’s student loan debt relief program.


What this means is that the court will hear this case on the merits before it makes its way through lower federal courts of appeal. This is unusual. Traditionally, the Supreme Court hears a case only after its gone through a federal trial court (the “district” court) and a federal appeals court, except for cases where it has original jurisdiction. As legal scholar Steve Vladeck notes in an article on this subject in his Substack newsletter, “The long-standing statutory and normative preference is for appeals to be taken only after ‘final judgments,’ i.e., when all of the factual and legal issues have been resolved to the maximum extent possible.”


As the Supreme Court itself has often said in its own opinions, it is a “court of review, not first view.” In 1925, Congress explicitly gave the Supreme Court the power to be a court of first view as part of a package of reforms meant to reduce the court’s workload. But in keeping with tradition, it used this authority sparingly. From 1925 to 1988, the court issued certiorari before judgment in just a handful of the cases it heard during that period. And from 1988, when Congress made additional reforms to the Supreme Court’s appellate jurisdiction, to 2019, the court granted certiorari before judgment in three cases: Clark v. Roemer in 1991, Gratz v. Bollinger in 2002 and United States v. Fanfan in 2004.


Biden v. Nebraska marks the 18th time, since 2019, that the court has granted certiorari before judgment. It is, as Vladeck writes, a “remarkable shift.” He hazards a few guesses as to why the court has made this change. Perhaps it is a response to the rise of nationwide injunctions from district courts (although this only accounts for five of the 18 cases in which the court has granted certiorari before judgment). Perhaps it is a response to the rise of state lawsuits against the federal government although, again, only a few of the cases involve the states as plaintiffs. Or maybe it’s just a sign that the justices are in a “hurry” and have a “lower bar when it comes to the kind of ‘emergency’ that justifies such an early-stage intervention.”


There is another possibility. According to Mark A. Lemley, a law professor at Stanford, the Roberts court, with its conservative majority, is an “imperial” Supreme Court, undermining the power and authority of the other branches of government, as well as weakening the power of lower courts to act and make decisions. “The court,” Lemley writes, “has taken significant, simultaneous steps to restrict the power of Congress, the administrative state, the states and the lower federal courts.” It gets its way, he continues, “not by giving power to an entity whose political predilections are aligned with the justice’s own, but by undercutting the ability of any entity to do something the justices don’t like.”


In the case of administrative agencies, this means a new, extra-constitutional test — the “major questions” doctrine — that “seems to be designed to allow the court to reject significant agency actions that are within their grant of power but that the agency implements in ways the court doesn’t like,” such as, Lemley notes, in West Virginia v. the Environmental Protection Agency, which limited the agency’s power to protect the environment.


In the case of Congress, this means rulings that restrict congressional power to create new causes of action — for people to seek legal redress for forms of injury Congress might recognize with legislation — and rulings that restrict the ability of Congress to create new executive agencies with independent leadership.


In the case of the states, this means rulings that impose new limits on the power of states to “regulate in areas they have long been able to, from public health to public safety.”


And in the case of the federal court system, this means procedural transformations — like granting certiorari before judgment or the increasing use of the so-called shadow docket — that hamstring lower federal courts by “bypassing long-standing procedural and substantive rules and its own doctrine in order to reach out, take and decide major legal questions that either are not presented at all or have not proceeded through the courts to establish a record.”


The upshot of all of this, Lemley writes, is a court that is “consolidating its power, systematically undercutting any branch of government, federal or state, that might threaten that power, while at the same time undercutting individual rights.”


This, I think, is a useful way of thinking about the current Supreme Court’s aggressive disregard for its own rules and tradition regarding case selection, methodology and precedent. The conservative majority is working to make the court the leading institution in American politics, with total control over the meaning of the Constitution and its application to American life.


Americans can and should challenge this. Here, as I’ve noted before, Abraham Lincoln is invaluable: “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” he said in his first inaugural address, “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”


The first step toward challenging the Supreme Court’s power grab is to recognize the basic fact that, as law professor Eric Segall has written, the Supreme Court is not actually a court. Yes, the justices of the Supreme Court work in a courtroom, wear robes and decide cases. But the court, he says, “functions much more like a political veto council than a court of law” and the justices “decide cases more like a traditional council of elders than typical judges.”


To see the truth about the Supreme Court is to see that it is not the ultimate arbiter of meaning, holding forth on how we must organize our political lives. It is to see, instead, that it is a political institution, jockeying for power and influence among a set of political institutions. It is to see that the Supreme Court exists to serve American democracy, and when it does not, then it can and must be checked by us, the people.

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