Federal Courts Blog Essay

Congressional Intent and the Shadow Docket

Professor Stephen I. Vladeck’s recent essay in the Harvard Law Review entitled “The Solicitor General and the Shadow Docket” critiques the Solicitor General’s “unprecedented number of requests for emergency or extraordinary relief from the Justices,” including stays, mandamus, and certiorari before final judgment.  For example, he notes that the current administration has sought certiorari before judgment nine times in less than three years, far more than previous administrations, contributing to the rapid growth of the Court’s so-called “shadow docket.”

Professor Vladeck suggests that the Solicitor General’s frequent use of such esoteric strategies to obtain immediate Supreme Court relief when lower courts invalidate federal laws, executive orders, or other legal authorities may be an “abus[e]” of the Solicitor General’s “unique position.”  He further contends that the Court’s receptiveness to these requests suggests favoritism toward the government and, in particular, the current administration.

To the contrary, the Court’s willingness to grant certiorari before judgment to the government when district courts hold federal legal provisions unconstitutional is consistent with Congress’ intent when it enacted the Supreme Court Case Selection Improvement Act of 1988.  Prior to the act’s passage, throughout much of the twentieth century, 28 U.S.C. § 1252 allowed any party to appeal directly to the Supreme Court as of right when a district court held a federal law unconstitutional.  This measure was adopted during the New Deal Era out of concern that lower courts were too readily invalidating the Roosevelt Administration’s initiatives. 

The Improvement Act repealed § 1252 in order to reduce the Supreme Court’s caseload, making the Court’s jurisdiction over such constitutional cases almost entirely discretionary.  Some senators, however, expressed concern about eliminating immediate, mandatory Supreme Court review of district court rulings holding laws unconstitutional.  To attempt to assuage such concerns, the House Judiciary Committee report accompanying the Act explained that repealing § 1252 “should not create an obstacle to the expeditious review of cases of great importance” because certiorari before judgment remained available under 28 U.S.C. § 1254(1).  That provision allows the Supreme Court to grant writs of certiorari to review cases pending in the court of appeals “before or after rendition of judgment.”

The Committee recognized that “[p]rompt correction or confirmation of lower court decisions invalidating acts of Congress is generally desirable for reasons of separation of powers, avoiding unwarranted interference with the government’s administration of the laws and protection of the public interest.” Repealing § 1252 “increase[d] the importance” of certiorari before judgment “as a means of securing an expeditious and definitive resolution of questions of statutory unconstitutionality by the Supreme Court.” The report concluded that the Committee “contemplates that the Court will give appropriate weight to the elimination of direct review” under § 1252 when deciding whether to grant certiorari before final judgment in cases where a lower court has invalidated a federal law. 

The Department of Justice, in advocating the Improvement Act, likewise emphasized that repealing § 1252 “need not [prevent] . . . expeditious review in cases of exceptional importance.”  It explained that, when “expedited consideration by the Supreme Court is required,” the Court can grant certiorari before judgment, as it had recently done in Dames & Moore v. Regan and United States v. Nixon.  The Department observed that such relief is “[o]rdinarily” appropriate for “lower federal court decisions invalidating acts of Congress,” because they “present issues of great public importance warranting Supreme Court review.”  Other witnesses similarly pointed to the availability of certiorari before judgment as a substitute for direct appeal as of right. 

This embrace of certiorari before judgment was not an anomaly.  Over a decade earlier, in the Three-Judge Court Revision Act, Congress greatly curtailed the jurisdiction of three-judge district court panels, which previously had been required to adjudicate any cases in which a litigant sought injunctive relief against a federal or state law on constitutional grounds.  A separate statute, 28 U.S.C. § 1253, gave the Supreme Court direct appellate jurisdiction over such panels’ rulings on the merits of litigants’ constitutional challenges.  The Senate Judiciary Committee report accompanying the Revision Act explained that, even after Congress transferred responsibility for most constitutional litigation from three-judge district court panels to traditional single-judge district courts, subject to review in the Courts of Appeals through ordinary appellate procedures, the Supreme Court could still engage in “[s]wift judicial review . . . where the public interest requires it.”  Although litigants in such cases could no longer take a direct appeal as of right to the Supreme Court under § 1253, the Committee declared that it “expects that the Supreme Court will give early consideration to those cases which, on the basis of equitable principles, warrant immediate consideration.”

Thus, the Solicitor General’s frequent reliance on certiorari before judgment under § 1254(1) when district courts hold federal legal provisions unconstitutional is not an unanticipated abuse of power, but rather fully consistent with Congress’ intent when it curtailed the Court’s mandatory appellate jurisdiction in constitutional cases.  Indeed, Congress expected that the Court would be receptive to such requests.  And direct Supreme Court review of district courts’ rulings on important constitutional issues is also consistent with the structure of constitutional litigation throughout much of the twentieth century.  The Court’s “shadow docket” is not the result of partisan manipulation, but rather—at least in part—a safety valve Congress relied upon to mitigate the consequences of its elimination of the Court’s direct appellate jurisdiction over constitutional matters.