Presidential Commission on the Supreme Court of the United States
Jurisdiction and the Supreme Court’s Orders Docket, U.S. Senate Committee on the Judiciary (Sept. 29, 2021) (written testimony of Jennifer L. Mascott).
- ↑ See Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2500 (2021) (Kagan, J., dissenting) (faulting the majority for “barely bother[ing] to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail”).
- ↑ Alabama Ass’n of Realtors v. Dep’t of Health & Human Servs., No. 21A23, slip op. (U.S. Aug. 26, 2021) (per curiam).
- ↑ United States v. Texas, No. 21A85, slip op. (U.S. Oct. 22, 2021), https://www.supremecourt.gov/opinions/21pdf/21a85_5h25.pdf (treating application for emergency relief as a petition for a writ of certiorari before judgment and granting the petition with an expedited schedule for briefing and oral argument); Whole Woman’s Health v. Jackson, No. 21-463, 2021 U.S. LEXIS 5326 (Oct. 22, 2021), https://www.supremecourt.gov/orders/courtorders/102221zr_986b.pdf (granting petition for certiorari before judgment with an expedited schedule for briefing and oral argument).
- ↑ Ramirez v. Collier, No. 21-5592 (21A33), 2021 U.S. LEXIS 3681 (Sept. 8, 2021), https://www.supremecourt.gov/orders/courtorders/090821zr_n7ip.pdf.
- ↑ Whole Woman’s Health, 141 S. Ct., at 2495. Disavowing a decision on the merits, while potentially deflecting mistaken treatment of an emergency ruling as precedent, might not dull its practical effects. See United States v. Texas, slip op. at 2 (Sotomayor, J., concurring in part and dissenting in part) (“The promise of future adjudication offers cold comfort, however, for Texas women seeking abortion care, who are entitled to relief now. These women will suffer personal harm from delaying their medical care, and as their pregnancies progress, they may even be unable to obtain abortion care altogether.”).
- ↑ Whole Woman’s Health, 141 S. Ct., at 2496 (Roberts, C.J., dissenting).
- ↑ Bray Testimony, supra note 7, at 18.
- ↑ The Commission has focused primarily on the issue of emergency orders as “vertical precedents” that are binding on lower courts. Significant complications are raised by the questions of whether, when, and how emergency orders should operate as “horizontal precedents” that bind the Court itself in later cases. The Court might, for example, treat its statements about the standards for review in emergency rulings as carrying some precedential weight in later cases even if it does not treat the more substantive elements of its emergency rulings, such as predictions about likelihood of success on the merits, as precedential. One’s views on these matters might inform the questions of whether and on what issues the Court should be “consistent” across the run of its emergency rulings, and vice versa.
- ↑ Geller & Mahoney Testimony, supra note 47, at 18–19 (detailing such existing principles but noting that “the Court may not always garner universal acclaim—even among the Justices themselves—for its adherence to these settled standards”).
- ↑ Id. at 19 (citing Glossip v. Gross, 576 U.S. 863, 882 (2015) as stating that Supreme Court does not review “concurrent findings of fact by two courts below in the absence of a very obvious sand exceptional showing of error”).
- ↑ Id. at 19. The testimony points to Doe v. Gonzales, 546 U.S. 1301, 1303 (2005) (Ginsburg, J., in chambers), as an endorsement of the expedited-schedule norm. Id.
- ↑ Professor Vladeck, for example, has proposed that “[i]n any cases in which any (state or federal) government action is enjoined by a lower federal court, speed up the appellate timelines so that appeals of lower court rulings receive plenary appellate review much faster — by shortening the time for filing an appeal; by mandating aggressive briefing schedules; and by strongly encouraging courts to give such cases all due priority.” Vladeck Testimony, supra note 8, at 24. Although Professor Vladeck is suggesting this as a reform for Congress to enact, similar acceleration may be accomplished to some degree by the courts themselves.
- ↑ Bray Testimony, supra note 7, at 18 (endorsing the Injunctive Authority Clarification Act of 2021, H.R. 43, 117th Cong. (2021)); see also Morley House Testimony, supra note 46, at 7 (arguing that if nationwide injunctions were
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