By Elliott Riches
On September 11, the Trump Administration received a major victory in the Supreme Court. No, the Court hadn’t granted certiorari or heard oral argument; this win came in what the legal community refers to as the “shadow docket.” Most law students or legal practitioners will likely be familiar with the Supreme Court’s primary method for deciding cases: petition for certiorari, certiorari granted, oral argument, months of waiting, and finally a written opinion. The Court has operated this way for years. The Trump Administration, though, has found a new, quicker way to resolve issues in its favor. It uses extraordinary measures such as a petition for certiorari before judgment or application for a stay pending appeal before the case even makes its way through the appellate process.
The Supreme Court Rules do provide for this sort of relief. Supreme Court Rule 11 provides that litigants may seek relief in the Supreme Court before a lower court has issued its ruling. The Court also allows for the issuance of a stay pending appeal. But the Court’s own rules specify that “[e]xcept in the most extraordinary circumstances, an application for a stay will not be entertained unless the relief requested was first sought in the appropriate court or courts below or from a judge or judges thereof.” In order to receive this sort of stay, the applicant must carry an “especially heavy” burden. To meet this burden, it “must demonstrate (1) ‘a reasonable probability’ that [the] Court will grant certiorari, (2) ‘a fair prospect’ that the Court will then reverse the decision below, and (3) ‘a likelihood that irreparable harm [will] result from the denial of a stay.’” The Trump Administration has filed at least twenty applications for a stay before judgment, not to mention other forms of extraordinary relief including petitions for certiorari before judgment and applications for writs of mandamus. In contrast, Presidents Barack Obama & George W. Bush sought this sort of extraordinary relief a combined total of only eight times.
That takes us to the administration’s most recent victory. On July 16, 2019, the United States, through the Departments of Justice and Homeland Security, promulgated a rule that would deny asylum to all Central Americans who passed through Mexico unless they first were denied asylum in either Mexico or another country. The day they issued the rule, several organizations that represent immigrants seeking asylum sued the administration seeking both a temporary restraining order and a nationwide preliminary injunction. The district court granted the preliminary injunction finding that the rule was “likely inconsistent with the existing asylum laws,” might violate the Administrative Procedure Act’s (APA) notice-and-comment rules, and was likely invalid as arbitrary and capricious. In response, the administration appealed the ruling to the Ninth Circuit Court of Appeals and also sought a stay in that court pending the disposition of the appeal. The Ninth Circuit instead narrowed the scope of the injunction to only apply within that Circuit, but allowed the District Court to examine additional factors to expand the injunction, which the District Court subsequently did. Unsatisfied with the result in both the District Court and the Court of Appeals, the government sought a stay pending appeal in the Supreme Court.
The Supreme Court chose to grant the stay without any explanation, simply writing, “The application for stay presented to Justice Kagan and by her referred to the Court is granted.” The Court did not elaborate on its reasoning but instead merely issued procedural rules regarding the stay. Two justices noted their dissent from the ruling; Justice Sotomayor was joined by Justice Ginsburg in her written dissent. Among other reasons, Justice Sotomayor noted the frequency with which the Trump Administration had sought this sort of extraordinary relief in the Supreme Court. She writes, “The Government has treated this exceptional mechanism as a new normal.” Justice Sotomayor went on to comment that, in contrast to historical precedent, the Trump Administration now seeks extraordinary relief “reflexively.” She urged her fellow Justices to exercise “restraint” in allowing the administration to take “shortcuts,” a plea that apparently fell on mostly deaf ears.
The Court would have been wise to heed Justice Sotomayor’s plea and deny extraordinary relief. This is not an issue of whether the policy is right or wrong; it is an issue of process. For years, extraordinary relief has only been asked for, let only granted, in truly extraordinary circumstances. The current administration’s consistent asking for relief weakens the institutional legitimacy of the Supreme Court. As Justice Gorsuch wrote, “This Court often speaks most wisely when it speaks last.” By granting this sort of relief the Court is not allowing the appellate process to play out. Instead, it is choosing to circumvent the Courts of Appeal and make decisions about a case well before they have the kind of developed record and analysis traditionally seen in Supreme Court cases.
One potential argument those who support the administration’s drastic measures may make is that extraordinary relief is necessary against the trend of nationwide injunctions. Justice Thomas discussed the issue of nationwide injunctions in the travel ban case writing that “they appear inconsistent with longstanding limits on equitable relief” and that if the trend continues, the Court “must address their legality.” However, Thomas was not joined by any other justices in his lengthy concurrence on this issue. Therefore, until the Court does address the issue of nationwide injunctions, neither the Court nor litigants should attempt to prevent these injunctions using the shadow docket.
is obviously not the first time, nor will it likely be the last time, that the Trump
Administration seeks extraordinary relief in the Supreme Court. While the
process for obtaining an opinion from the Supreme Court can sometimes take
months or even years, extraordinary relief can be obtained in very short order. Extraordinary
relief is therefore a much more efficient solution for the Trump
Administration’s desire to implement its administrative agenda, as opposed to
waiting for the traditional Court process to unfold. Given the frequency with
which the Trump Administration has filed for extraordinary relief, it is only an
issue of when, not if, they next request it. Meanwhile, courtwatchers and the
American people are left to wonder: how many more times will the Court give the
administration what it wants?
 Barr v. E. Bay Sanctuary Covenant, No. 19A230, 2019 WL 4292781 (U.S. Sept. 11, 2019) (mem.), https://www.supremecourt.gov/opinions/18pdf/19a230_k53l.pdf (granting request for a stay pending appeal of injunction of immigration rule).
 See William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015).
 See Sup. Ct. R. 12, 16, 24, 28, 41.
 See, e.g., Application for a Stay Pending Appeal, E. Bay Sanctuary Covenant, 2019 WL 4292781 (U.S. Sept. 11, 2019) (No. 19A230), https://www.supremecourt.gov/DocketPDF/19/19A230/113613/20190826132549423_East%20Bay%20II%20Stay%20FINAL.pdf.
 28 U.S.C. § 2101(e) (2012); Sup. Ct. R. 11.
 Sup. Ct. R. 23.
 Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319, 1320 (1994) (Rehnquist, J., in chambers).
 Maryland v. King, 567 U.S. 1301, 1302 (2012) (Roberts, C.J., in chambers) (quoting Conkridght v. Frommert, 566 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers)).
 Ian Millhiser, Justice Sotomayor Warns the Supreme Court is Doing “Extraordinary” Favors for Trump, Vox (Sept. 12, 2019, 11:20 AM), https://www.vox.com/2019/9/12/20862320/sotomayor-supreme-court-favors-trump; Steve Vladeck (@steve_vladeck), Twitter (July 12, 2019, 4:11 PM), https://twitter.com/steve_vladeck/status/1149773351784726528.
 Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829, 33,835, 33,840 (Jul. 16, 2019) (to be codified at 8 C.F.R. pts. 208, 1003, 1208).
 E. Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 935 (N.D. Cal. 2019).
 Id. at 930.
 Barr v. E. Bay Sanctuary Covenant, No. 19A230, 2019 WL 4292781, at *2 (U.S. 2019) (mem.).
 Id.; E. Bay Sanctuary Covenant v. Barr, No. 19-cv-04073-JST, 2019 WL 4265078, at *1 (N.D. Cal. 2019).
 Application for Stay Pending Appeal, supra note 4.
 E. Bay Sanctuary Covenant, 2019 WL 4292781, at *1 (U.S. 2019) (No. 19A230).
 Id. at *3 (Sotomayor, J., dissenting).
 Maslenjak v. U.S., 137 S. Ct. 1918, 1932 (2017) (Gorsuch, J., concurring).
 Trump v. Hawaii, 138 S. Ct. 2392, 2424–25 (2018) (Thomas, J., concurring) (“Injunctions that prohibit the Executive Branch from applying a law or policy against anyone—often called ‘universal’ or ‘nationwide’ injunctions—have become increasingly common.”)
 Id. at 2425.
 In the East Bay case, the application for stay was filed on August 26, 2019. See Application for Stay Pending Appeal, supra note 4. As mentioned above, the Court issued the stay on September 11, 2019.