matters through temporary relief is an unavoidable part of the tradeoff that can happen at any judicial level.
Indeed, virtually everyone agrees that nothing is inherently suspect about emergency orders. Every court must have procedures for accelerated determination of urgent matters, even at the expense of a more deliberative process or more fully reasoned decisions. Disagreement, then, tends to center not on the fact of emergency procedures, but on which matters warrant the Court’s immediate intervention. Critics have argued that the Court is too often using relatively impoverished procedures and deliberation to intervene on important issues, including by overturning reasoned decisions of the lower courts.[31] Relatedly, some commentators contend that the Court too often acts to disrupt the appropriate “status quo” rather than to preserve it—in some cases, at least, without clear explanation of when or why intervention is warranted.[32]
In some respects, these debates may reflect disagreement about the underlying merits of the disputes or about how to weigh the threatened interests or risk of harm.[33] An additional source of disagreement is the question of how to characterize the baseline condition or “status quo” that emergency relief is meant to preserve and the “disruptive force” that is to be held at bay pending full judicial consideration.[34] Witnesses before the Commission differed on the proper conception of the status quo for purposes of evaluating the Court’s emergency orders,[35] and as one witness acknowledged, the choice will often be contested and “normatively tinge[d].”[36] One possible understanding of the status quo is the state of affairs that exists based on the last ruling in the courts below.[37] That is the baseline some critics claim the Court too often disrupts, as it did in a number of pandemic-related voting, prison safety, and religious gathering cases, among others.[38] A different conception of the status quo is the state of affairs created by the law, policy, or practice being challenged.[39] A third understanding was captured by Chief Justice Roberts’s dissent in Whole Woman’s Health, in which he explained: “I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.”[40] This question becomes more complicated still when policymakers are responding (or not) to a sudden change in the state of the world, such as during a pandemic.
B. Transparency
The Court often issues emergency orders without accompanying explanation, or with very little of it. A standard defense of such a norm is that emergency decisionmaking may not allow time for a thorough expression of the Court’s reasoning in every case, and that anything less
