“Presidents come and go, but the Supreme Court goes on forever.”
— William Howard Taft
“You just never know what the Supreme Court is going to do.”
— Sen. John Barrasso
Last Friday, two major bits of news emerged from the halls of the United States Supreme Court. One was that Justice Ruth Bader Ginsburg, the Court’s oldest Justice at age 85, and already twice a survivor of cancer, had undergone a lobectomy to eliminate two cancerous nodules from her left lung. The procedure was reportedly successful, and the Justice was said to be recovering at Memorial Sloan Kettering Cancer Center in New York.
At nearly the same time, the news broke that the Supreme Court had issued a ruling that sided with a lower court on an injunction blocking an order the president signed on Nov. 9 that would have blocked persons entering the country from seeking asylum outside of official ports of entry.
Supreme Court procedure can be a bit of maze of rules and appeal methods, and reporters covering the story seemed unsure of how to report on exactly what it was that the High Court had done. Indeed, anyone going to the Supreme Court’s website and checking the list of opinions and official orders would find nothing new on Dec. 21. So just what was the order, and what wasn’t it?
To begin, let’s note that most cases come to the Supreme Court as an appeal of a lower court order. In those cases, the party appealing the lower court decision asks the Supreme Court to take jurisdiction over the case by asking for a writ of certiorari. If the High Court agrees to review the case — referred to as “granting cert.” — then the Court will hear arguments on the case and issue a written decision. The Court grants cert. in just over 1 percent of the cases it is asked to hear. Four Justices must agree to hear the case in order for the Court to accept it. The asylum issue had yet to work its way through the lower court appeal process, and this was not a cert. petition.
Some cases come to the Supreme Court because it has “original jurisdiction” over them, meaning that no other court hears them first. These cases are exceedingly rare, and are spelled out in Article III, Section 2 of the United States Constitution. These include cases involving ambassadors and foreign ministers, and disputes between states over things like border lines and water rights. The asylum issue was not a case of original jurisdiction.
Some matters come to the Court in an emergency manner, and are decided by a single Justice. In most cases, they are death penalty appeals, and they may come in the middle of the night. Each Justice is assigned to one of the federal circuit courts of appeals, and they alone can determine whether to issue a stay in those cases, an decision that temporarily puts the lower court’s order on hold. The asylum case was not a middle of the night emergency order.
Rather, the asylum case involved a temporary injunction put in place by a lower court and upheld by the 9th Circuit Court of Appeals. The president, through the Solicitor General of the United States, filed an application with the U.S. Supreme Court on Dec. 11 asking that the Court put a stay on the injunction (a hold on the hold, if you will), allowing the president’s policy change to be effective while the matter was litigated.
Because Justice Kagan is currently assigned to matters arising from the 9th Circuit, the request came to her. She gave the parties on the opposite side — The East Bay Sanctuary Covenant, the Innovation Law Lab, and the Central American Resource Center of Los Angeles, represented by the American Civil Liberties Union, the Center for Constitutional Rights, and the Southern Poverty Law Center — until the 17th of December to respond. Once those parties had responded, she took a step that was not required, but that she felt was appropriate. Rather than just rule on the application herself, as the Justice assigned to those requests from the 9th Circuit, she referred the matter to the entire Court. The full Court then ruled, 5-4, to deny the request to put a stay on the injunction. Thus, the injunction stands while the lower court appeals process plays out.
It was this somewhat unusual method of bringing the case to the Court that seemed to cause confusion on how to report on it. The referral of the request to the entire Court does tell us something about the future of the case, however. Since only four Justices must agree to grant cert., it would appear that if the 9th Circuit leaves the injunction in place in their final ruling, there would be sufficient votes to bring the matter before the High Court for consideration. That would not likely occur until the 2019-2020 term, however, and there’s no telling how the Justices would vote once the full matter is before them.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas.