Another dramatic change at the Supreme Court demonstrates an activist court (1 Viewer)

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    U.S. Blues
    Mar 26, 2019
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    Charleston, SC
    This deviation is so dramatic it must be concluded that it is (a) intentional and (b) marks a substantial change in how the SCOTUS operates in the U.S. legal landscape - and how it influences law far more actively than it ever has.

    What's particularly remarkable is that the conservative legal viewpoint now leading the Court and their organizational backers like the Federalist Society have long criticized an "activist" federal judiciary. You simply cannot have a more activist Supreme Court than one that regularly intervenes in cases that remain pending in the lower court system.

    Since 1988 (which makes sense to start there because it was the last time Congress revised the Court's review statutes), the SCOTUS has granted cert to review a matter that has not yet reached final judgment in the lower courts at total of 23 times. And 20 of those are since 2019. In other words, between 1988 and 2019 (that's 31 years) it happened just three times. Since 2019, it has happened 20 times. Note that this chart below does include a grant of cert that happened this morning.

    It is true that there are some structural elements (such as state standing and the more common use of national injunctions) that point to greater use of pre-judgment cert. But the dramatic shift that seems to have happened all of a sudden starting with 2019 bears some real consideration.


    Historically, though, the Court used these powers sparingly, and only in truly exigent circumstances. In 1976, then-Justice Rehnquist referred to “certiorari before judgment” as “an extremely rare occurrence.” The cases meriting certiorari before judgment were cases like the Nazi saboteurs’ case during World War II; the steel seizure case during the Korean War; the Watergate tapes case; and the Iranian hostage crisis case. These disputes weren’t just important; they were cases in which time was unquestionably of the essence. (The Supreme Court’s Rule 11 provides that certiorari before judgment “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court”).

    To illustrate the point, between June 1988 (the last time Congress meaningfully altered the Court’s appellate jurisdiction) and August 2004, the Court only granted such expedited merits review in three cases, two of which were companions to cases in which the Court was already conducting ordinary appellate review. And from August 2004 to February 2019, the Court didn’t grant a single petition for certiorari before judgment.1

    Thursday’s grant of certiorari before judgment in Biden v. Nebraska, in contrast, was the 18th grant [there have been two since Thursday!] of certiorari before judgment since February 2019.

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    I think I read something similar about the use of the shadow docket - where they just issue a decision without explanation, if my memory is correct. The use of that method used to be much rarer than it is now. Just an explosion of it in recent years.

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