When the Supreme Court hears oral arguments on Friday in two pairs of challenges to Biden administration rules regarding Covid vaccinations, it will do something it hasn’t done since 1970. Usually, the court conducts formal sessions only for cases that have been appealed all the way through the lower courts (or for the rare disputes between states that begin and end in front of the Supreme Court).
On Friday, though, the justices are to hear arguments on four emergency applications on whether two administration rules relating to vaccine requirements should be blocked or allowed to go into effect before the normal appeals process.
Whatever happens in these cases, they are emblematic of an undeniable — and problematic — trend: Controversial new state or federal policies are being instantly challenged in court. The losing side immediately asks appellate courts for emergency relief. And then the losing side in the appeals courts asks the Supreme Court to intervene at the beginning of the case, rather than the end.
The volume of emergency relief cases — like the vaccine mandates, Donald Trump’s dispute with the congressional committee looking into the Capitol riot and challenges to Texas’ abortion law — has skyrocketed. What used to be the exception to ordinary legal process has become the new normal of government by injunction, i.e., court order.
In these circumstances, opponents of the party in power look to squelch policy they don’t like not through the democratic process but through the courts. They shop for a district court with an ideologically sympathetic judge who, in turn, is asked to decide important policy questions on the fly, with truncated briefing, with very little opportunity to develop a factual record and with national impact.
After these rulings, appeals courts, including the Supreme Court, are usually deciding only what the status quo should be while these cases run their course — whether lower-court injunctions should be paused or whether appellate courts should reach out to block policies that lower courts refused to. This litigation is wildly confusing to policymakers and stakeholders as the law changes seemingly every minute, and it takes place at the expense of “ordinary” litigation, which is pushed to the back burner while courts devote more of their finite resources to these “emergency” appeals.
It doesn’t have to be this way. Congress should take a page from Franklin Delano Roosevelt’s infamous court-packing plan — not the part about expanding the Supreme Court, but the part that Congress for a time actually adopted: requiring special three-judge panels, rather than outlier district judges, to hear cases seeking to throw out state or federal rules. Roosevelt warned about courts becoming a “third house of the national legislature.” History is on the verge of repeating itself, and Congress can, and should, step in.
In one pair of the cases on Friday, the government is asking the Supreme Court to clear the way for a federal rule that all health care providers participating in Medicare and Medicaid be fully vaccinated, a requirement that was blocked by two federal district courts.
In the other, plaintiffs including 26 states are asking the court to freeze the Occupational Safety and Health Administration’s requirement that all employees of large companies either be vaccinated or regularly tested. (This case came out of a Cincinnati federal appeals court, which in December refused to block it.)
The Supreme Court has become much more open to granting these requests for emergency relief. In the most recent full term, the justices granted 20 such requests, the most of any term on record. The vaccination cases will be the fourth and fifth of the current term in which the justices heard argument at such a preliminary stage of litigation, having moved onto their merits docket three other cases in similar postures.
Meanwhile, the justices are issuing fewer decisions in cases that go through the full process than at any time since the Civil War — only 53 during the Covid-shortened October 2019 term and only 56 during the (full) October 2020 term. The justices like to say that theirs is “a court of review, not first view,” but that’s increasingly untrue in the cases with the most practical impact.
Some people say that the courts are simply reacting to emergencies in the real world. But the trend lines suggest otherwise. The qualitative and quantitative expansions of the Supreme Court’s emergency docket began in the early 2010s, well before Covid. Likewise, the uptick in court orders blocking federal policies dates to the middle part of that decade. And the growing polarization of the federal judiciary all but ensures that dissatisfied litigants in some states (including the states themselves) will seek, rightly or wrongly, to persuade a nearby district judge to thwart the domestic agenda of a president of the other party.
This pattern also happened during Roosevelt’s first term, leading him to complain that the government was sometimes brought to a complete stop by court orders “issued almost automatically,” such that no important statute could take effect “against any individual or organization with the means to employ lawyers” and to force laws to go through “the whole hierarchy of the courts.” In 1937, after failing to persuade Congress to add more seats to the federal courts (not just the Supreme Court), he successfully convinced Congress to pass a bill that limited the powers of individual district judges and sped up appeals to the Supreme Court.
That legislation required that any suit seeking an injunction against a federal statute or policy be heard by a special three-judge district court panel including at least one judge from the Court of Appeals. Any decision by that panel could be automatically and immediately appealed to the Supreme Court to allow the merits of the dispute to reach the justices quickly (by combining the function of the two levels of lower federal courts) but on a full record.
The goal was to reduce the volume of outlier lower-court rulings and to hasten review of cases that went through these three-judge panels. Returning to this practice would reduce the cherry-picking of outlier judges because it’s harder to find three (or two) such judges than one. And with three-judge panels, we could also expect more consistent decision making and a more efficient path to full merits review by the Supreme Court.
Congress repealed these statutes in 1976, both because federal dockets had exploded during (and as a result of) the civil rights era and because of a widespread perception that individual judges could be trusted to handle the same cases.
The arguments on Friday — and the broader trends of which they are a symptom — underscore why it would be worth revisiting the other part of Roosevelt’s court reform plan. Reasonable minds will differ as to exactly which cases should go to such panels, but it’s increasingly clear that many should — and that the increasingly manic status quo is unhealthy, unwise and, from the courts’ perspective as well as ours, unsustainable.
Stephen I. Vladeck (@steve_vladeck), a professor at the University of Texas School of Law, specializes in the federal courts and constitutional law. He is also the co-host of “The National Security Law Podcast.”