Presidential Commission on the Supreme Court of the United States
2016, for example, the Court has issued orders that have effectively determined the end of the period for responding to the 2020 Census;[17] limitations on absentee and curbside voting, including for voters with disabilities and other vulnerable populations, at the height of the pandemic;[18] the degree of exposure to COVID-19 infection for inmates in prisons and jails;[19] and the extent of the right to congregate for religious services during the pandemic.[20] Even where such orders eventually expire, moreover, and even where they directly involve only one person as a party, they can have profound implications for affected individuals and influence larger societal debates.[21]
As these examples suggest, the issues resolved through emergency rulings often are controversial as well as consequential. Emergency orders breaking down 6–3 or 5–4 along ideological lines have multiplied in recent years, indicating that the Court increasingly is deciding contested legal questions through cursory and relatively non-transparent emergency procedures.[22] During the 2017 Term, there were five orders from which at least three Justices publicly dissented; during the 2020 Term, there were 29 such orders.[23] This increase has occurred even while the merits docket has remained at historically low levels,[24] and during the 2019 Term there were nearly as many 5–4 decisions among emergency rulings as on the merits docket.[25]
Various explanations have been offered for the Court’s increasing use of expedited procedures in important and controversial cases: the lower courts’ issuance of so-called “nationwide” or “universal” injunctions that “control the behavior of the federal government toward everyone, not just the plaintiffs,” and which often prompt the government to seek relief;[26] federal executions during the Trump Administration; emergency requests during the COVID-19 pandemic;[27] a growing divide between the views of the Supreme Court and the lower federal courts; and possible changes in how the Justices apply the traditional legal standard for emergency relief pending appeal.[28] Critics and defenders of the Court’s practices draw competing conclusions from such explanations, some of which point to passing rather than persistent causes.
Those who defend the Court’s recent use of emergency rulings argue that the problem—if there is one—is not of the Court’s own making. As in the lower courts, emergency applications come to the Court from parties seeking urgent relief.[29] The consequential nature of the interests at stake is precisely why the Court must act quickly, lest significant rights be left unprotected or harm imposed on the parties and the public while the full judicial process unfolds.[30] Deciding important issues using a truncated process, on this view, is not illegitimate; it is the nature of emergency adjudication. And the de facto final resolution of important
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