This is the seventh piece in a series on what I believe the court can, and should, do better.
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In my last column, I suggested several ways in which the Supreme Court could provide more procedural protections for the court’s minority. These rules would necessarily require the buy-in from the majority of justices, since they would be surrendering some authority. But, in all cases, a majority can rule. As Justice William Brennan may have remarked, five votes can do anything at the Supreme Court.
So what can six votes accomplish? There may be instances where a supermajority of the court should be able to do certain things that might not be justified with only five votes. But it is important that two-thirds of the court cannot not run rough-shod over the minority by making up ad hoc rules. In this seventh installment, I propose concrete rules that would empower a supermajority to achieve substantive aims.
The Deep-6
In the last installment, I proposed two rules based on the number three. With the Join-3, the chief justice would automatically provide a fourth vote for certiorari when there are three other votes. And with the Pre-3, three justices could vote before the conference to grant a case. The Pre-3 when combined with the Join-3 would put cases on the docket without further discussion.
The Join-3 and the Pre-3 give the court’s minority more control over the docket, and an ability to set the court’s agenda. But I would grant the super-majority a greater power, called the Deep-6. Under the current practice, where there are not yet enough votes to grant cert, a petition can be rescheduled or relisted many times. This is the docket purgatory I have described before. But with the Deep-6, six members of the court could vote to deny a petition immediately and end all further deliberations. One or more justices could note their dissent from that denial. The Deep-6 would then let a large majority put a petition out of its misery where there is no chance that it will be granted instead of further wasting the court’s time or giving false hope to the petitioners.
The Skip-6
In the previous installment, I proposed the DIG-3. After briefing concludes, three members who voted to grant cert could now vote to dismiss the case as improvidently granted. The DIG-3 operates, in effect, as a motion for reconsideration.
The mirror image of the DIG-3 is the Skip-6. If, after briefing, it becomes clear to six justices that the case is easy to resolve, oral arguments can be skipped. Cases often look far different at the cert-stage and the merits-stage. With the DIG-3, two-thirds of the court can issue an order removing the case from the calendar. At some later date, the court would release a majority opinion. It might be a summary reversal, or a full opinion. The minority can dissent from the cancellation of oral argument or just issue a dissent from the majority opinion.
The Refer-6
In the normal course, emergency applications are filed with the circuit justice. At that point, the circuit justice has a lot of discretion. The application can be unilaterally denied by the circuit justice, he or she can grant or deny a motion for an administrative stay, or the circuit justice can call for a response from the respondent and set a briefing schedule. Sometimes, the respondent might get a few days, other times the respondent might get two weeks.
The justices take different approaches based on the urgency of the case. Some justices call for a response right away, as Circuit Justice Samuel Alito did in the Texas redistricting case. By contrast, in Libby v. Fectau, Circuit Justice Ketanji Brown Jackson waited nearly three days to even call for a response, setting the due date for eight days later. In total, the entire process took nearly 11 days. (In Trump v. California, Circuit Justice Jackson called for a response at once.) In Trump v. AFGE, Circuit Justice Elena Kagan never bothered calling for a response, because the controversy was likely to become moot. In the ballroom case, Circuit Justice John Roberts immediately called for a response, but only granted an administrative stay when the lower court’s stay was about to expire.
Ultimately, it falls to the full court, and not the circuit justice, to make the final decision. Usually, after the case is fully briefed, the circuit justice refers the case to the full court, which can then grant or deny the application. Alito observed that the circuit justice will usually refer a case to the full court if it “involves anything that we think will involve any disagreement” among the nine justices. But in rare cases, the court can take a case away from the circuit justice who does not make a prompt referral. Rollins v. RI Council of Churches might have been such a case. That case involved cuts to funding during the government shutdown. By the time the case arrived to the court, a deal in Congress had already been reached to end the shutdown. Yet Circuit Justice Jackson imposed an unusually short briefing schedule, requiring the government to file a brief in approximately 12 hours, and the respondent had to file a brief later that same day. The next day, there was an unusual notation on the docket: “The application for stay presented to Justice Jackson is referred to the Court.” The court then extended the administrative stay. Jackson dissented from that order. Usually, the circuit justice actively refers the case, but it appears the court took it away from her. It seems that the court disagreed with how Jackson was handling the case, especially where the shutdown was about to conclude.
It is not clear how many votes are needed to take a case away from a circuit justice. Here, I propose a clear rule: the Refer-6. Six justices, at any point, can vote to refer any pending matter to the full court. At the latest, the Refer-6 can be invoked after the briefing is completed. The Refer-6 can also be invoked to establish a briefing schedule. Or the Refer-6 can be invoked as soon as an application is filed in order to enter an administrative stay.
Realistically, the Refer-6 can be discussed even before an emergency application is filed. Usually, the clerk of the Supreme Court is given a heads-up that an emergency application is on its way. The Refer-6 can follow a Conference-3. At that point, the justices can informally establish a game plan, given how the case has proceeded through the lower courts. If six justices decide this matter belongs before the full court, the referral can happen right away. Of course, the circuit justice can dissent from the order being referred to the full court. But the circuit justice cannot stop the referral.
Some of my proposals were designed to promote collegiality. The Refer-6 would have just the opposite effect. It would signal that the court did not want a particular circuit justice to have power over a matter. But I suspect this Rubicon was already crossed in the Rhode Island case. Jackson perhaps tried to do too much in her capacity as circuit justice, and her colleagues apparently countermanded her.
The Release-6
There is a familiar pattern on the Supreme Court’s emergency docket. The court’s majority will frequently issue an unsigned opinion with, at most, a few sentences of reasoning. Following the majority opinion will be a dissent stretching several pages with extended analysis of why the majority was incorrect. Yet the majority does not respond to or even acknowledge the dissent. The majority opinion was likely completed rather quickly, but the judgment was held until the dissent was ready for release.
That said, the court does not always wait for the dissent. Sometimes the dissent will come later. For example, in A.A.R.P. v. Trump, the court issued a late-night emergency stay. The one paragraph order noted that “Justice Thomas and Justice Alito dissent from the Court’s order. Statement from Justice Alito to follow.” About 24 hours later, Alito’s dissent was filed.
Generally, on a collegial court, the majority will wait until the dissent is ready. (There was one notable exception on a recent three-judge panel in Texas.) I can imagine there are circumstances where a dissenter might drag her feet to delay a case. Perhaps this happened with Jackson’s dissent in Trump v. California. Indeed, in Louisiana v. Callais, Alito’s majority opinion all but alleged that Jackson’s dissent delayed the resolution of the voting rights case. In A.A.R.P., however, the majority felt the need to act immediately, and there was no allegation that Alito was being dilatory.
It isn’t clear how many votes are needed to release an order before the dissent is ready. I suspect in A.A.R.P., at least five, and maybe six or seven justices agreed with this path. (That is, unless the chief justice did so on his own, given the fast-moving case.)
So I would propose a rule to address this issue: the Release-6. For any matter, six justices can force the release of a judgment immediately. This rule would apply on both the merits and emergency dockets. The majority opinion could be published right away, with a notation that a dissent is forthcoming. Or a simple judgment could be issued, with a notation that a majority opinion would come later. The Release-6 would be similar to the Deep-6. In both cases, a super-majority of the court can bring a pending matter to an immediate conclusion. If a justice wishes, he or she can publish the dissent at a later date, but the business of the court will move forward.
There are some emergency matters where an immediate resolution is essential for the government or the private parties. It may also not be viable to keep an administrative stay in effect for an extended period of time. With the Release-6, six members of the court can issue their judgment, and the dissent can come later, or not at all.
The Stop-6
I propose one last solution, mostly in jest. Under the Supreme Court’s current format for oral argument, each justice gets an apparently unlimited amount of time to ask questions during the seriatim round. Some of these sessions can go on for almost 30 minutes. The court has apparently installed timers on the bench to measure how long each justice speaks for. (This measure seems a bit passive aggressive and ultimately ineffective.) With the Stop-6, if any six members of the bench agree, the chief justice could terminate an individual justice’s seriatim round. Maybe the justices could circulate a poll on the bench or just show a thumbs down. I suspect this remedy would only have to be used once, if at all. The Sword of Damocles is most effective when it never falls.