The Supreme Court, nationwide injunctions and leap frogging the lower courts

[riversedge]

The Supreme Court, nationwide injunctions and leap frogging the lower courts

https://www.cnn.com/2019/09/13/politics/supreme-court-nationwide-injunctions/index.html?utm_source=twCNNp&utm_medium=social&utm_content=2019-09-14T13%3A07%3A06&utm_term=image


By Ariane de Vogue, CNN Supreme Court Reporter

Updated 1:29 PM ET, Fri September 13, 2019

Trump tweets on his Supreme Court asylum win 01:44

(CNN)Less than an hour after the Supreme Court allowed a government rule to go into effect nationwide that will dramatically cut back on the ability of Central Americans to apply asylum in the United States, President Donald Trump took to Twitter.
"BIG" win the President proclaimed, as others, such as Justice Sonia Sotomayor, lamented the majority's decision to leap frog a federal appellate court in issuing the after hours order.
The court's action, was the latest spark in an ongoing debate in judicial circles. On the one hand, there are those who say an aggressive solicitor general is coming to the Supreme Court with increasing frequency to ask for emergency relief. On the other hand, is a complaint from the highest levels of the Trump administration that such requests are warranted because lower courts are engaging in a relatively new tactic: issuing injunctions blocking controversial policies nationwide while the appeals process plays out.

Some say the two phenomenon aren't related because not all emergency applications involve nationwide injunctions, but court watchers perceive a changing norm.

"Granting a stay pending appeal should be an extraordinary act," Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote Wednesday night.

"Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal," she said .



The justice scolded her colleagues for failing to exercise restraint.

"Over the 16 years of the George W. Bush and Obama administrations, for example, the government sought a total of eight stays from the Supreme Court, asked for certiorari before judgment in four cases, and sought no extraordinary writes," University of Texas School of Law and CNN contributor Steve Vladeck writes in a forthcoming law review article.


He points out that in "sharp contrast," the Trump administration has repeatedly asked the court to step in. "In two and a half years, the solicitor general has applied for at least 20 stays; has sought certiorari before judgment in 10 different cases, and has sought extraordinary writs against three different district court judges," Vladeck writes.


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The case at hand Wednesday night had been ping ponging through the courts. Non-profit organizations representing immigrants sued to stop the rule from going into effect and a district court judge enjoined the rule nationwide. A federal appeals court then narrowed that injunction to apply only to California and Arizona -- within the borders of the 9th Circuit Court of Appeals.
When the issue returned to US District Judge Jon S. Tigar, he once again reinstated the nationwide injunction. The appeals court issued a temporary stay -- again blocking the nationwide injunction -- but ordered more briefing on the issue for next week.
All the while, the Supreme Court was considering the Department of Justice's separate request for relief.


Wednesday night, the Supreme Court acted, allowing the rule to go into effect.


It would have taken five justices to grant the request. Only Sotomayor, joined by Ginsburg, noted a dissent.


Sherrilyn Ifill, president of the NAACP Legal Defense Fund, lambasted the Court's order.

"Just like the Muslim ban, the administration is taking extremely aggressive actions that have the power to impact hundreds of thousands of people -- often desperate people, changing the very character of this nation," she said in an interview.
She said the Supreme Court should not have stepped in yet. "These are cases in which the courts should want the fullest record, the most detailed and careful deliberation before allowing these aggressive moves by the government," she said.
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[Igel]

1. It's not a 100% correspondence.

But there's a clear overlap between nationwide injunctions and leapfrogging.

I wonder if the incidence of going to SCOTUS returns within recent historical norms if you omit the lower-court nationwide-injunction cases from the dataset?