Power versus discretion: Extraordinary relief and the Supreme Court

Power versus discretion: Extraordinary relief and the Supreme CourtIn an overwhelming majority of the cases that the Supreme Court hears, the matter at issue has been adjudicated all the way through the lower courts, and comes to the justices only on the far side of a ruling by a federal court of appeals or the highest court of a state or territory. As […]

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Power versus discretion: Extraordinary relief and the Supreme Court

In an overwhelming majority of the cases that the Supreme Court hears, the matter at issue has been adjudicated all the way through the lower courts, and comes to the justices only on the far side of a ruling by a federal court of appeals or the highest court of a state or territory. As the justices have reiterated often in recent years, “[o]urs is a court of final review and not first view.” By waiting for most cases to go through multiple layers of review by lower courts, the justices give themselves the benefit of several rounds of briefing, and, usually, lower-court rulings, on which to base their decision whether to take up the case — and, if so, how to resolve it.

But neither Article III of the Constitution nor many of the Supreme Court’s jurisdictional statutes require it to wait for proceedings in the lower courts to run their course fully. For example, the statute on which the court’s jurisdiction most often rests — 28 U.S.C. § 1254(1) — provides that “[c]ases in the courts of appeals may be reviewed by the Supreme Court … [b]y writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree.” And as the justices have repeatedly held, a case is “in” the court of appeals from the moment an appeal is properly noticed. Thus, the court has long possessed the power to grant “certiorari before judgment” — and to decide a case before the courts of appeals have had an opportunity to do so.

Relatedly, the All Writs Act, 28 U.S.C. § 1651, authorizes the Supreme Court to issue “all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law,” including, most typically, writs of mandamus or prohibition – writs that order government officials, including federal judges, to take a certain action or prohibit them from doing so — to confine lower courts to the proper exercise of their jurisdiction. As the court explained in Ex parte United States, that authority allows the justices to issue writs directly to district courts, even in cases in which any appeal from the district court must first go to a court of appeals. And the federal habeas corpus statute, 28 U.S.C. § 2241(a), similarly allows the justices to issue writs of habeas corpus in any case in which a lower court has committed an individual to detention, whether or not the court can also hear a direct appeal of that decision. Although applications for such writs in the Supreme Court may appear to be invoking the court’s “original” jurisdiction (which the Constitution limits to a small class of cases), they are generally understood as invoking the court’s appellate jurisdiction so long as some ruling by a lower court is ostensibly at issue. Thus, these provisions have the effect of giving the Supreme Court extraordinary authority to supervise the entire federal judicial system — and some parts of state legal systems, as well. (“Extraordinary” relief is in contrast to “emergency” relief, such as a stay, which merely freezes the status quo while the ordinary litigation process continues.)

That the Supreme Court has such powers, however, does not mean that it likes to use them. To the contrary, both the Supreme Court’s rules and its case law stress, over and over again, that these authorities are to be used only in truly rare cases — that they are “drastic and extraordinary remedies … [that] should be resorted to only where appeal is a clearly inadequate remedy.” For example, Rule 11, which governs writs of certiorari before judgment, provides that such a petition will be granted “only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” The court has not granted such a petition since 2004 — and, excluding petitions in cases that were companions to other cases and summary decisions, it has not granted one since 1988.

To similar effect, Rule 20, which governs “extraordinary writs,” emphasizes that such a writ “is not a matter of right, but of discretion sparingly exercised.” Thus, “[t]o justify the granting of any such writ, the petition must show that the writ will be in aid of the Court’s appellate jurisdiction, that exceptional circumstances warrant the exercise of the Court’s discretionary powers, and that adequate relief cannot be obtained in any other form or from any other court.” The Supreme Court has not issued an extraordinary writ of habeas corpus since 1925. And it appears to not have granted a petition for a writ of mandamus since 1962. After all, if an appellate court wrongly denies a petition for mandamus to a district court, that decision can be remedied through certiorari — as the justices did just last term in In re United States.

The Supreme Court’s reluctance to grant extraordinary relief can be traced to a series of considerations, including its preference to decide cases on as full a record as possible; concerns about protecting its docket; and proper respect for the lower courts — which, even when they decide cases incorrectly, should still generally be presumed to be acting in a manner that is institutionally appropriate.

It is against this backdrop that the uptick in requests for extraordinary relief from the Office of the Solicitor General during the Trump administration should be measured. In the last year alone, the government has sought extraordinary relief from the justices in litigation arising out of the 2020 census, climate change, the Deferred Action for Childhood Arrivals immigration program, and, most recently, President Donald Trump’s ban on military service by transgender individuals. And in some of these cases, the government has gone back to the justices for extraordinary relief on multiple occasions. In contrast, the Justice Department during the eight years of the Obama administration sought extraordinary relief from the court exactly once — a petition for certiorari before judgment in United States v. Windsor that was mooted when the U.S. Court of Appeals for the 2nd Circuit ruled before the petition could be acted upon.

In recent filings in the transgender-ban cases, the solicitor general has insinuated that the uptick in requests for extraordinary relief is at least in part a response to the uptick in nationwide injunctions over the past two years. Perhaps the suggestion is that unusual intervention by the justices is warranted by unusual interference from district courts. But some of the requests have come in cases not involving such relief (such as the census litigation), and the same filings do not address why ordinary appellate review could not limit injunctions that are overbroad — such as the government’s pending appeal to the en banc U.S. Court of Appeals for the 7th Circuit seeking to narrow the scope of the district court’s injunction against the government’s sanctuary-city policies. And if a majority of the justices are inclined to agree with the solicitor general, that could open the door to increased efforts from all parties, and not just the federal government, to short-circuit the ordinary appeals process and take especially important claims directly to the court.

To date, the justices have largely dodged the matter — treating a mandamus request in the census case as a petition for certiorari and avoiding up-or-down rulings on the merits in the other cases. But eventually, the court as a whole, or at least some of the justices, may have to address the propriety of such frequent requests for extraordinary relief head on.

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Whitaker appointment dispute reaches Supreme Court

Whitaker appointment dispute reaches Supreme CourtSince the moment President Donald Trump appointed Matthew Whitaker as Acting Attorney General on Wednesday, November 7, the move has been met with significant political and legal criticism, with numerous lawyers and commentators arguing that the president lacked both statutory and constitutional authority to name Whitaker—previously chief of staff to Attorney General Jeff Sessions—as Sessions’ […]

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Whitaker appointment dispute reaches Supreme Court

Since the moment President Donald Trump appointed Matthew Whitaker as Acting Attorney General on Wednesday, November 7, the move has been met with significant political and legal criticism, with numerous lawyers and commentators arguing that the president lacked both statutory and constitutional authority to name Whitaker—previously chief of staff to Attorney General Jeff Sessions—as Sessions’ interim successor. That argument may soon receive a conclusive resolution, thanks to an unusual motion filed in the Supreme Court late on Friday afternoon.

The movant, Barry Michaels, brought suit in March of 2016 against the attorney general and another senior government official seeking to challenge the constitutionality of the federal ban on possession of firearms by convicted felons. After losing in the lower courts, Michaels filed a petition for certiorari on June 27, in which the solicitor general’s response is currently due on December 17. But in a filing late Friday afternoon, Michaels—who is represented by Florida lawyer Michael Zapin and a team of lawyers from Goldstein & Russell, P.C., led by SCOTUSblog founder Tom Goldstein—moved the justices to “substitute” the appropriate successor to Sessions, who was one of the respondents to Michaels’ petition.

As the motion explains, the court’s rules usually provide for automatic succession of government-officer parties upon the prior officeholder’s departure. But “that practice is premised on the ability of this Court to identify the correct successor, so that any judgment or Order of the Court is directed to the correct individual.” Here, however, the dispute over the validity of Whitaker’s appointment means that “the identity of the successor is both contested and has important implications for the administration of justice nationally. This Motion seeks to resolve the dispute.” Michaels’ motion argues that the dispute ought to be resolved against the validity of Whitaker’s appointment—largely on the ground that the Federal Vacancies Reform Act of 1998 does not override or otherwise displace the mandatory order of succession set forth in the Department of Justice succession statute, codified at 28 U.S.C. § 508. And even if it did, the motion argues, the appointments clause of Article II of the Constitution does not allow for officials who have not been confirmed by the Senate to exercise the functions of a principal office, like the attorney general, on a temporary basis so long as no exigency precludes another, Senate-confirmed officer from doing so.

The motion concedes that “no characteristic of this case distinguishes it from any other in which Mr. Sessions was a named party” and that no lower court has yet addressed the issue. Nevertheless, the motion urges the justices to resolve the issue now because “[t]here is a significant national interest in avoiding the prospect that every district and immigration judge in the nation could, in relatively short order, be presented with the controversy over which person to substitute as Acting Attorney General.”

The justices have repeatedly reasserted that the Supreme Court is one of “review, not of first view.” Other challenges to the validity of Whitaker’s appointment have already been brought in contexts in which the acting attorney general is more than just a named party. And the U.S. Court of Appeals for the District of Columbia Circuit has ordered supplemental briefing as part of a challenge to the validity of Special Counsel Robert Mueller’s appointment and investigation as to whether the identity of Mueller’s current supervisor bears on the matter—and, if so, who it is. This issue therefore seems likely to reach the Supreme Court eventually. But the Michaels motion asks the justices whether they really want to wait that long. If they do not, then formally identifying the proper respondent to a petition for certiorari would certainly allow them to settle the matter once and for all.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner on this motion. The author of this post is not affiliated with the firm.]

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Sanctuary cities as the next nationwide injunction test case

Sanctuary cities as the next nationwide injunction test caseHowever the Supreme Court decides the travel ban case in the next 10 days, it may well avoid taking a position on one of the numerous issues raised in that litigation — whether the district court in Trump v. Hawaii lacked the authority to issue a nationwide injunction. But the justices may not be able […]

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Sanctuary cities as the next nationwide injunction test case

However the Supreme Court decides the travel ban case in the next 10 days, it may well avoid taking a position on one of the numerous issues raised in that litigation — whether the district court in Trump v. Hawaii lacked the authority to issue a nationwide injunction. But the justices may not be able to duck the broader debate over the propriety of nationwide injunctions for much longer, thanks to an unusual application for a “partial” stay filed by Solicitor General Noel Francisco on Monday in Sessions v. City of Chicago.

The City of Chicago case is one of several pending challenges to actions taken by Attorney General Jeff Sessions under Executive Order 13,768, which provides that certain “sanctuary jurisdictions” that refused to comply with some immigration enforcement measures would not be “eligible to receive Federal grants, except as deemed necessary for law enforcement purposes” by the attorney general or secretary of Homeland Security. As relevant here, the city of Chicago sued challenging conditions that the attorney general subsequently imposed under the executive order on receipt of funds under the Edward Byrne Memorial Justice Assistance Grant Program, claiming that they were both unlawful and unconstitutional.

The U.S. District Court for the Northern District of Illinois agreed with the city with respect to two of the three challenged conditions — the “notice” condition, which requires advance notice to federal authorities of the release date of persons in state or local custody who are believed to be noncitizens, and the “access” condition, which requires local correctional facilities to provide access to federal agents to meet with those persons. Both of those conditions, the district court ruled, could not be traced to any statutory authority, and therefore exceeded the attorney general’s authority to impose unilaterally. And because of considerations the district court deemed unique to immigration law, not only did Judge Harry Leinenweber enjoin the attorney general from continued enforcement of the conditions against the city of Chicago, but he issued the injunction on a nationwide basis.

After refusing to stay the injunction pending appeal, a three-judge panel of the U.S. Court of Appeals for the 7th Circuit affirmed in April 2018, unanimously concluding that no statute granted the attorney general the authority to impose the “notice” and “access” conditions. As for the nationwide scope of the district court’s injunction, a majority of the 7th Circuit panel stressed that “nationwide injunctions should be utilized only in rare circumstances,” but concluded that the city’s suit was one such circumstance, because “[t]he case presents essentially a facial challenge to a policy applied nationwide, the balance of equities favors nationwide relief, and the format of the Byrne JAG grant itself renders individual relief ineffective to provide full relief.” Judge Daniel Manion dissented only with respect to the nationwide nature of the injunction. As he wrote, “Other jurisdictions that do not want to comply with the Notice and Access conditions were not parties to this suit, and there is no need to protect them in order to protect Chicago.”

The government sought en banc rehearing of the panel decision only with respect to the nationwide scope of the injunction, and a stay of that aspect of the injunction (but not the injunction itself) pending disposition of its petition. On June 4, the 7th Circuit granted rehearing en banc “only as to the geographic scope of the preliminary injunction entered by the district court,” but deferred the government’s request for a ruling on its application for a stay until the Supreme Court decided the travel ban case, which “may facilitate our disposition of the pending motions.”

Given the full 7th Circuit’s refusal to rule immediately on the stay application, the solicitor general on Monday filed an application for a partial stay directly with Justice Elena Kagan, in her capacity as Circuit Justice for the 7th Circuit. The application asks Kagan to stay the nationwide scope of the district court’s injunction pending the en banc 7th Circuit’s disposition of the government’s petition for rehearing — which looks like it will be argued later this summer — and, “if necessary, pending the filing and disposition of a petition for a writ of certiorari and further proceedings in this Court.” Later on Monday, Kagan ordered a response to the application — by 5:00 p.m. on Wednesday, June 27 (by which point the Supreme Court may well have decided the travel-ban case).

Thus, although the government is not challenging the substance of the district court’s injunction, it appears willing to use that injunction as a vehicle to challenge the propriety of nationwide injunctions more generally — perhaps more so than in the travel ban or DACA litigation. Whether the justices are interested in such a challenge (especially in a case in which the government may be all-but conceding the weakness of its position on the merits) remains to be seen.

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Opinion analysis: Justices reaffirm “look-through” presumption in federal habeas review of state-court decisions

Opinion analysis: Justices reaffirm “look-through” presumption in federal habeas review of state-court decisionsWhen a state prisoner seeks to challenge his conviction through a federal habeas petition, the Antiterrorism and Effective Death Penalty Act of 1996 requires the federal courts to defer to the state court’s resolution of claims “adjudicated on the merits.” But what happens when the last state-court decision in the prisoner’s case is a summary […]

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Opinion analysis: Justices reaffirm “look-through” presumption in federal habeas review of state-court decisions

When a state prisoner seeks to challenge his conviction through a federal habeas petition, the Antiterrorism and Effective Death Penalty Act of 1996 requires the federal courts to defer to the state court’s resolution of claims “adjudicated on the merits.” But what happens when the last state-court decision in the prisoner’s case is a summary appellate ruling, with no explanation for why the lower-court ruling rejecting the prisoner’s claim was affirmed? In its 6-3 ruling yesterday in Wilson v. Sellers, the Supreme Court clarified that, in such circumstances, “the federal court should ‘look through’ the unexplained decision to the last related state-court decision that does provide a relevant rationale,” and presume that the unexplained decision adopted the same rationale. But even in reaffirming such a “presumption,” the Supreme Court emphasized that a state can rebut that presumption if it can show “that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision.” Thus, Wilson’s true significance will likely depend upon how easily states are able to make such a demonstration going forward.

As I noted in my argument preview, at issue in Wilson is the apparent tension between two prior Supreme Court opinions as applied to claims brought by a Georgia prisoner. In its 1991 decision in Ylst v. Nunnemaker, the court articulated a presumption that, “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Under Ylst, federal habeas courts are supposed to “look through” the summary state-court ruling to the decision that was actually on the merits of the claim raised in the federal habeas petition. But in 2011, the court in Harrington v. Richter held that even a summary ruling by a state court can count as an adjudication “on the merits” under AEDPA. The question presented in Wilson was whether Richter thereby overruled Ylst (as a 6-5 majority of the en banc U.S. Court of Appeals for the 11th Circuit had concluded), or whether it simply addressed a different set of cases, in which there was no reasoned state-court decision on the constitutional question presented.

Writing for the majority, Justice Stephen Breyer held that the answer was the latter. He noted that because there had been no state-court merits ruling in Richter, the facts in Richter did not implicate Ylst, and that Richter set forth its own presumption, “which ‘may be overcome when there is reason to think some other explanation for the state court’s decision is more likely.’” In other words, Richter was the exception, and Ylst was the rule.

That the Ylst presumption survived Richter does not resolve this case, though, because it is only a presumption. The question remains: How can a state show that the presumption should be overcome — and that, in fact, a summary state appellate ruling was indeed based on different grounds than the lower-court decision analyzing the merits? As Breyer explained:

A federal habeas court may conclude that [the state] has rebutted the presumption on the basis of convincing alternative arguments for affirmance made to the State’s highest court or equivalent evidence presented in its briefing to the federal court similarly establishing that the State’s highest court relied on a different ground than the lower state court, such as the existence of a valid ground for affirmance that is obvious from the state-court record.

Even though the Georgia Supreme Court ruled, after the oral argument in Wilson, that its summary decisions should not be read to adopt the lower courts’ reasoning, Breyer concluded that “[t]his misses the point.” He explained that the Ylst presumption can be overcome through affirmative evidence that the summary state-court opinion in the specific case at issue rested on a different ground than the merits ruling below, not through a state-law presumption (like the one belatedly articulated by the Georgia Supreme Court) that it did.

Writing for himself and Justices Clarence Thomas and Samuel Alito, Justice Neil Gorsuch dissented, arguing that applying the Ylst presumption to summary state-court affirmances treats state courts with disrespect, because it contradicts the Supreme Court’s own guidance that its summary affirmances “may be read only as signaling agreement with a lower court’s judgment and not necessarily its reasons.” Of course, any inconsistency with the Supreme Court’s customary approach to summary affirmances comes not from the Supreme Court’s jurisprudence, but from AEDPA, which mandates federal deference to state-court merits adjudications. And as Breyer added, “this approach is more likely to respect what the state court actually did, and easier to apply in practice, than to ask the federal court to substitute for silence the federal court’s thought as to more supportive reasoning.”

The real thrust of Gorsuch’s dissent was his claim that the majority’s analysis won’t end up changing the outcome in many cases, because it won’t apply when the lower state-court ruling is unreasonable, or in any other case in which the state can articulate good reasons for believing that the summary affirmance rested on different grounds. Whether that prediction turns out to be true remains to be seen. But against the competing backdrop of Ylst and Richter, preserving both the “look-through” presumption and a state’s ability to overcome it certainly seems the least disruptive to existing practice—and perhaps the best explanation for why Justice Anthony Kennedy (who authored the majority opinion in Richter) and Chief Justice John Roberts joined the majority in siding with a federal habeas petitioner.

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Opinion analysis: Justices unanimously reverse 5th Circuit on funding for capital habeas petitions

Opinion analysis: Justices unanimously reverse 5th Circuit on funding for capital habeas petitionsIf the Supreme Court unanimously sides with a death-row inmate in a federal habeas case, chances are that the lower-court decision was clearly wrong, and the justices’ own disposition is remarkably narrow. So it was for the court’s ruling today in Ayestas v. Davis, a case about the standard that an indigent prisoner must meet […]

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Opinion analysis: Justices unanimously reverse 5th Circuit on funding for capital habeas petitions

If the Supreme Court unanimously sides with a death-row inmate in a federal habeas case, chances are that the lower-court decision was clearly wrong, and the justices’ own disposition is remarkably narrow. So it was for the court’s ruling today in Ayestas v. Davis, a case about the standard that an indigent prisoner must meet in order to receive funding in support of a habeas petition for “investigative, expert, or other services [that] are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence.” In a unanimous opinion by Justice Samuel Alito, the court held that the federal funding statute (18 U.S.C. § 3599(f)) means what it says — and that the U.S. Court of Appeals for the 5th Circuit erred in interpreting the “reasonably necessary” language to effectively require a prisoner to prove the likelihood of success on the merits in his habeas case before receiving such funding. Instead, “[i]n those cases in which funding stands a credible chance of enabling a habeas petitioner to overcome the obstacle of procedural default, it may be error for a district court to refuse funding.”

As we explained in the argument preview, the petitioner, Carlos Manuel Ayestas, was convicted and sentenced to death by a Texas state court in 1997 for his role in the 1995 murder of 67-year-old Santiaga Paneque during an apparent robbery. He claims that he received ineffective assistance of trial counsel, who failed to present mitigation evidence at sentencing that might have led the jury to opt for a lesser sentence than death, and ineffective assistance of his state post-conviction counsel, who did not argue that Ayestas’ trial counsel had been ineffective. Although the doctrine of “procedural default” would usually preclude a petitioner from raising a claim that could have been, but was not, presented to the state courts, the Supreme Court held in Trevino v. Thaler that a “nested” ineffective assistance claim like Ayestas’ can provide “cause” to excuse such a default — if, in fact, both sets of lawyers were ineffective.

In a case like this one,  that means demonstrating to the federal habeas court what a proper mitigation investigation would have uncovered, which can only be done with adequate funding. But the 5th Circuit had interpreted the funding statute to require the prisoner to present “a viable constitutional claim that is not procedurally barred.” For claims like Ayestas’, that would condition the availability of investigative funds on the prisoner’s ability to prove the very thing that the investigation seeks to determine. So, after resolving the Supreme Court’s jurisdiction to hear Ayestas’ funding appeal (which, rejecting the state’s argument, Alito deemed a quintessentially “judicial” dispute), the opinion turned to why the 5th Circuit’s approach “is too restrictive,” especially in light of Trevino. As Alito explained, “it is possible that investigation might enable a petitioner to carry [the] burden” of proving the ineffectiveness of his trial and/or state post-conviction counsel.

To be sure, Alito stressed, “the ‘reasonably necessary’ test requires an assessment of the likely utility of the services requested.” But “a funding applicant must not be expected to prove that he will be able to win relief if given the services he seeks.” Time will tell just how significant a difference there is between Alito’s formulation of the test and the 5th Circuit’s own approach, but Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote separately (and at length) to explain why, under the majority’s reasoning, “Ayestas has made a strong showing that he is entitled to § 3599(f) funding.”

The harder question — raised for the first time in the Supreme Court by the state of Texas — is whether this was all much ado about nothing because of a different federal statute, 28 U.S.C. § 2254(e)(2), which Texas claims acts as a barrier to any “procedurally defaulted ineffective-assistance-of-trial-counsel claim that depends on facts outside the state-court record.” If Texas is right, then, presumably, no amount of funding would be “reasonably necessary” in a case like this one, because the sought-after relief would be barred.

In kicking that question back to the 5th Circuit in the first instance, Alito’s opinion kept all nine justices on board. But the opinion leaves the distinct impression that it will not be long before that much broader issue finds its way back to the Supreme Court.

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Argument analysis: A quixotic search for the general meaning of state-court summary affirmances

Argument analysis: A quixotic search for the general meaning of state-court summary affirmancesWhen a state appeals court affirms a lower-court ruling without an opinion, is it endorsing the decision below? Is it rejecting it? Does the answer depend upon the nature of the lower-court ruling? Does it vary by state? These questions, among others, appeared to vex the justices throughout Monday’s 58-minute argument in Wilson v. Sellers, […]

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Argument analysis: A quixotic search for the general meaning of state-court summary affirmances

When a state appeals court affirms a lower-court ruling without an opinion, is it endorsing the decision below? Is it rejecting it? Does the answer depend upon the nature of the lower-court ruling? Does it vary by state? These questions, among others, appeared to vex the justices throughout Monday’s 58-minute argument in Wilson v. Sellers, a complex capital habeas case involving a Georgia prisoner. And although the petitioner, Marion Wilson, appeared at times to have support from a majority of the court, how the justices might rule — and what implications any ruling would have for state courts going forward — was not exactly clear by the end of the session.

The question presented in Wilson arises from tension between two of the Supreme Court’s prior decisions: The justices’ 1991 ruling in Ylst v. Nunnemaker created a presumption that, “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Employing that presumption, a federal habeas court would “look through” an unexplained state-court order and focus its review on the reasoned state-court opinion instead. But in 2011, the court in Harrington v. Richter held that even a summary ruling by a state court can count as an adjudication “on the merits” to which federal habeas courts must defer under the Antiterrorism and Effective Death Penalty Act of 1996, at least where there is no lower state-court ruling providing a clearer rationale. Although Richter distinguished (rather than overruled) Ylst, a 6-5 majority of the en banc U.S. Court of Appeals for the 11th Circuit held that 2011 decision in fact abrogated the Supreme Court’s earlier holding, at least in cases in which it is unclear whether the summary state-court opinion was an affirmance of the lower state court’s denial of relief on the merits.

Arguing on behalf of Wilson, attorney Mark Olive urged the justices to treat the Georgia Supreme Court’s summary refusal to issue a certificate of probable cause to appeal as the type of same-ground affirmance that, under Ylst, a habeas court could and should “look through” in order to review a reasoned (but incorrect) denial of relief by the lower court. The hard question first raised by Justice Samuel Alito, and which he would repeatedly press throughout the argument, is how the justices could be sure of the grounds for the Georgia Supreme Court’s action. In response to a question from Chief Justice John Roberts, Olive suggested that “it is clear that, in this case and in most cases, except when the [Georgia Supreme Court] says otherwise, the court is adopting the facts as set forth in the lower court’s opinion.” Although Alito and several of his colleagues pushed Olive to explain how the Ylst/Richter distinction would apply in cases with less clarity, Olive received a bit of an assist from Justice Stephen Breyer, who suggested that Ylst creates a “presumption,” and that the question is simply when the state can overcome that presumption.

The same theme dominated the argument of Georgia Solicitor General Sarah Hawkins Warren, arguing on behalf of the state. Although Warren attempted to suggest that it is far less clear under Georgia law that the state supreme court’s denial of a certificate of probable cause is typically a merits-based affirmance, that argument provoked substantial push-back from Justices Elena Kagan, Sonia Sotomayor, and Breyer — who may have lost everyone, including himself, in an extended hypothetical about a decision written in 1812 by James Oglethorpe’s “second cousin twice removed.” The larger point that appeared to emerge from the colloquy was concern on the justices’ part that the rule for which the state was advocating would require federal habeas courts to decide if there were any grounds on which the state court’s summary ruling could have rested other than those provided in the reasoned trial-court opinion — and the suggestion, repeated by all four of the justices more openly sympathetic to the petitioner, that the far easier rule would be to assume a summary opinion was on the same basis as the lower court’s ruling absent some indication to the contrary.

Whether that conclusion has a fifth vote was hard to tell from the session, given the relative paucity of questions from Roberts and Justice Anthony Kennedy (who authored Richter). Instead, the only points that seemed clear after the argument were the lack of any appetite among the justices to conclude that Richter categorically overruled Ylst, and the presence of at least some reluctance across the bench to articulate a national (as opposed to state-by-state) rule for which state-court summary decisions federal habeas courts should “look through” under Ylst, and which provide independent grounds for the denial of relief — and, thus, for deference from the federal court — under Richter.

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Argument analysis: Major capital habeas case appears headed toward narrow reversal

Argument analysis: Major capital habeas case appears headed toward narrow reversalSomething odd happened during Monday’s 59-minute oral argument in Ayestas v. Davis, a widely anticipated capital habeas case about funding levels for federal habeas petitions brought by indigent defendants: Justice Anthony Kennedy said nary a word. Instead, in a session marked by what, in retrospect, appear to be distractions from the matter at hand, a […]

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Argument analysis: Major capital habeas case appears headed toward narrow reversal

Something odd happened during Monday’s 59-minute oral argument in Ayestas v. Davis, a widely anticipated capital habeas case about funding levels for federal habeas petitions brought by indigent defendants: Justice Anthony Kennedy said nary a word. Instead, in a session marked by what, in retrospect, appear to be distractions from the matter at hand, a majority of the justices seemed inclined to side with the petitioner, Carlos Manuel Ayestas, a Texas death-row inmate — and to reverse the conclusion of the U.S. Court of Appeals for the 5th Circuit that a prisoner must show a “substantial need” in order to be eligible to receive funding for “investigative, expert, or other services” as part of a federal habeas petition under 18 U.S.C. § 3599(f). Indeed, a narrow remand to the court of appeals to apply the correct standard may well help the Supreme Court to dodge some of the thornier issues that came up at various points during the argument.

As we noted in our argument preview, Congress has provided that federal courts in capital cases involving indigent defendants should fund “investigative, expert, or other services [that] are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence.” Alone among the courts of appeals, the 5th Circuit has held that, in order for funding to be “reasonably necessary,” a petitioner challenging his sentence based on ineffective assistance of counsel must show a “substantial need” — that is, “substantiated argument, not speculation, about what the prior counsel did or omitted doing.” When, as in Ayestas, the underlying claim involves a trial lawyer’s failure to conduct an adequate mitigation investigation at the sentencing phase of a capital case, the 5th Circuit’s standard effectively requires a petitioner to demonstrate not only that the investigation would be fruitful, but that its results would affect the outcome of the federal habeas case.

Arguing on behalf of Ayestas, University of Maryland law professor Lee Kovarsky faced surprisingly few questions about the 5th Circuit’s interpretation of the federal funding statute. Instead, Chief Justice John Roberts pushed Kovarsky on an argument raised by the state for the first time in the Supreme Court — that a different law (the federal habeas statute) itself limits the funding that could be “reasonably necessary” insofar as it restricts the kind of new evidence that can be admitted in a federal post-conviction proceeding. Kovarsky responded both that it’s not clear whether that statute — the Antiterrorism and Effective Death Penalty Act — has the effect urged by Texas (and 15 additional states, as amici), and that Texas failed to raise that argument below, the 5th Circuit didn’t rely on it, and therefore the justices shouldn’t consider it.

Justice Samuel Alito pivoted to the state’s jurisdictional argument suggesting that denials of funding are nonjudicial “administrative” orders that cannot be appealed, but seemed to find no takers among his colleagues. The argument then finally turned to the merits, with a prolonged exchange between Kovarsky and four of the justices over the difference between the “reasonably necessary” language of the statutory text and the Fifth Circuit’s “substantial need” approach. Although Kovarsky seemed to parse the daylight between the two effectively, he met some resistance toward the end of his presentation from Justice Neil Gorsuch, who raised a novel jurisdictional issue that had not been briefed by any of the parties or the amici. Justice Stephen Breyer appeared to come to Kovarsky’s rescue, though, suggesting a way in which the court’s disposition could be styled that would allow the justices to reverse the 5th Circuit while finessing the jurisdictional issue raised by the court’s newest member.

Arguing for the state as the respondent, Texas Solicitor General Scott Keller faced intense questioning from Justices Sonia Sotomayor and Breyer on what the latter referred to as the state’s “unusual jurisdictional argument”—that courts of appeals lack the power to review district court decisions denying funding under Section 3599(f). Justice Elena Kagan then pointed out the potential problem of an unreviewable division of authority among the circuits on the question presented, but the real turning point may have been when Roberts jumped in to direct the discussion back to the merits, hinting at his assessment of the strength of the state’s jurisdictional position. Turning to those merits, Keller held up well against intense questioning from across the bench, but did not appear to be making significant headway, especially in suggesting not only that Ayestas could not show that deficient performance by his trial counsel prejudiced him, but that the lawyer’s performance may not have been deficient in the first place. That suggestion drew pointed questions in response not just from the justices who tend to be more friendly to criminal defendants, but from Gorsuch as well.

But perhaps the strongest indication of the case’s likely outcome came toward the end of Keller’s presentation, when Breyer all-but described the outline of a potential opinion for the court, which would say: “This circuit, you are to follow the statute. And that’s it. Good-bye. And all these other arguments are for the lower court.” Although Keller stressed that such a decision should still clarify certain open legal points, he otherwise seemed to accept his fate. So too, apparently, did Breyer’s colleagues, who left Kovarsky to his three-minute rebuttal without interruption.

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Argument preview: To which state-court adjudications must federal habeas courts defer?

In its 2011 decision in Harrington v. Richter, the Supreme Court held that even a summary ruling by a state court can count as an adjudication “on the merits” to which federal habeas courts must defer under the Antiterrorism and Effective Death Penalty Act of 1996. But the court in Richter specifically distinguished, rather than […]

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In its 2011 decision in Harrington v. Richter, the Supreme Court held that even a summary ruling by a state court can count as an adjudication “on the merits” to which federal habeas courts must defer under the Antiterrorism and Effective Death Penalty Act of 1996. But the court in Richter specifically distinguished, rather than overruled, its 1991 decision in Ylst v. Nunnemaker, which had erected a presumption that, “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Under the Ylst presumption, federal habeas courts are supposed to “look through” the summary state-court ruling to the decision that was actually on the merits of the claim raised in the federal habeas petition. Richter holds that, at least when the Ylst presumption doesn’t apply (i.e., when there is no reasoned state-court decision on the merits issue), a summary state-court ruling still triggers “AEDPA deference.”

The question the justices will consider next Monday in Wilson v. Sellers, a capital case out of Georgia, is whether the Ylst presumption in fact survived Richter. Even though the state of Georgia and the petitioner, Marion Wilson, agreed below that the answer was yes, a 6-5 majority of the en banc U.S. Court of Appeals for the 11th Circuit came to the opposite conclusion. And although the state has since changed its position and is now arguing for affirmance, it may have a difficult time attracting a majority of the Supreme Court to this new and expansive take on Richter.

I. Background

Wilson was convicted and sentenced to death for his role in the 1996 murder of Donovan Parks, an off-duty Georgia corrections officer, in Baldwin County, Georgia. Wilson’s core challenge to his conviction and sentence is that he received ineffective assistance from the lawyers who handled his trial, sentencing and direct appeal. Despite receiving substantial evidence of such ineffective assistance, the state habeas court (the Superior Court of Butts County) denied relief, and the Georgia Supreme Court summarily denied Wilson’s application for a “Certificate of Probable Cause to Appeal” — which was a necessary predicate to Wilson’s appealing the state habeas court’s denial of relief.

Wilson then sought federal habeas relief in the U.S. District Court for the Middle District of Georgia. Although the district court denied relief (concluding that Wilson could not demonstrate “prejudice” under the Supreme Court’s Strickland v. Washington standard for ineffective assistance of counsel), it identified serious flaws not just in the conduct of Wilson’s trial and direct-appellate counsel, but in the reasoning of the Georgia habeas court — and therefore issued a certificate of appealability allowing Wilson to press the matter further. After a three-judge panel of the 11th Circuit denied relief, the court of appeals reheard the matter en banc, appointing an amicus curiae to argue, contra both Wilson and the state, that the Georgia Supreme Court’s denial of Wilson’s CPC — and not the ruling by the habeas court — was the final adjudication on the merits for purposes of AEDPA, and thus the relevant state court decision to review.

Writing for the majority, Judge William Pryor agreed with the amicus, holding first that the Georgia Supreme Court’s denial of a CPC was a “decision on the merits” under AEDPA, and second that Richter therefore overrode Ylst’s “look-through” presumption. As a result, a federal habeas court could only grant relief if the Georgia Supreme Court’s summary denial of a CPC (rather than the detailed opinion of the state habeas court) was “contrary to, or involved an unreasonable application of,” clearly established Supreme Court precedent. Applying that standard (which effectively requires the prisoner to demonstrate that there was no reasonable basis for denying his application), the majority affirmed the denial of Wilson’s petition.

The majority opinion, which created a circuit split with decisions of the U.S. Courts of Appeals for the 4th, 5th, 7th and 9th Circuits, also provoked stern dissents from Judges Adalberto Jordan and Jill Pryor, the latter of whom emphasized not only that the majority’s decision did not follow from Richter, but that it “runs roughshod over the principles of federalism and comity that underlie federal collateral review of state court decisions,” because it gives the back of its hand to the reasoned opinion of the state habeas court in favor of a one-line summary ruling denying permission to pursue a state habeas appeal. Given the circuit split Wilson created and the June 2015 warning from Justices Ruth Bader Ginsburg and Elena Kagan that the 11th Circuit had “plainly erred” in reading Richter as effectively abrogating Ylst, the Supreme Court’s intervention was hardly surprising.

II. The briefs

After certiorari was granted, the state filed a letter with the Supreme Court in which it sought “to clarify [its] position on the merits,” maintaining “that deference under [AEDPA] should be given to the last state court adjudication on the merits, even when that adjudication is unexplained.” That argument forms the core of the state’s merits brief, which adopts many of the lines of analysis from the majority opinion in the en banc court of appeals. Otherwise, the state argues, “requiring a ‘look through’ approach would force a state appellate court ‘to provide a statement of reasons to prevent a federal court, on habeas review, from treating the decision of that state appellate court as a rubberstamp of the opinion below,” and would therefore fly in the face of the principles of federalism and comity on which Richter (and AEDPA itself) are predicated. In an amicus brief spearheaded by Arkansas, 25 states reiterated the comity and federalism arguments, emphasizing that the Ylst “look-through” presumption assumes that a summary denial of an appeal is an endorsement of the decision below—which is “the antithesis of comity.”

Unlike the state’s brief, Wilson’s brief focuses on AEDPA itself — and the extent to which it “encourages and puts a premium on considered state-court exposition of the reasons for decisions adjudicating federal claims” by forcing federal habeas courts to defer to what the “state court knew and did.” Indeed, as Wilson points out in his opening brief, given AEDPA’s high bar to relief, looking through a summary state-court decision to a reasoned opinion by a lower state court will not change the result in the overwhelming majority of cases; it will simply shift the analysis from what the state court might have said to what it actually said — analysis that should actually be less costly and burdensome upon the states, and more respectful of comity and federalism. So construed, the rule adopted by the en banc 11th Circuit majority would, compared to the status quo, only have an impact on federal habeas cases in which the reasoned state-court decision was itself a sufficiently unreasonable application of the relevant Supreme Court precedent to warrant federal habeas relief — and would preclude such relief if there was any other reasonable basis on which the (otherwise silent) appellate court could have rested its affirmance.

III. Conclusion

According to Ginsburg’s opinion respecting the denial of certiorari in Hittson v. Chatman, “Richter makes clear that where the state court’s real reasons can be ascertained, the [AEDPA] analysis can and should be based on the actual ‘arguments or theories [that] supported … the state court’s decision.’” If Richter’s author — Justice Anthony Kennedy — agrees with that characterization of his work, then the question may not be whether Wilson prevails, but whether he attracts more than five votes. After all, as much as the Supreme Court has read AEDPA capaciously to disfavor virtually all federal second-guessing of state court decision-making, the rule for which Georgia is arguing in Wilson asks the court to go even further. Such a rule would instruct federal habeas courts to ignore a reasoned state-court opinion in favor of a summary denial of a right to appeal, and in a capital case with a substantial ineffective-assistance claim to boot. Even if that had always been Georgia’s position, one suspects that it would still be a tough sell.

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Argument preview: A subtle but significant dispute over funding federal habeas petitions in capital cases

As part of the Criminal Justice Act, Congress has provided in 18 U.S.C. § 3599(f) that federal courts in capital cases involving indigent defendants (including suits for post-conviction relief) should fund “investigative, expert, or other services [that] are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the […]

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As part of the Criminal Justice Act, Congress has provided in 18 U.S.C. § 3599(f) that federal courts in capital cases involving indigent defendants (including suits for post-conviction relief) should fund “investigative, expert, or other services [that] are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence.” When the Supreme Court returns to the bench next Monday morning to hear argument in Ayestas v. Davis, it will consider a recurring question in federal habeas cases, especially those raising claims that the prisoner’s trial lawyers provided ineffective assistance of counsel: What, exactly, must habeas counsel demonstrate to show that such services are “reasonably necessary for the representation of the [petitioner]”?

The U.S. Court of Appeals for the 5th Circuit has imposed a high bar in such cases, holding that such funding is “reasonably necessary” only when the petitioner can demonstrate a “substantial need” for the services contemplated by the statute – i.e., “substantiated argument, not speculation, about what the prior counsel did or omitted doing.” The question at the heart of this case is whether that standard puts too high a burden on capital habeas petitioners – requiring them to all-but describe the merits of their ineffective-assistance claims in order to obtain funding to prove those claims. Assuming the Supreme Court has jurisdiction to answer that question (an issue raised by the state of Texas), the answer could have enormous consequences for the ability of indigent death-row inmates to use federal habeas petitions to challenge the effectiveness of their trial lawyers.

I. Background

The petitioner, Carlos Manuel Ayestas, was convicted and sentenced to death by a Texas state court in 1997 for his role in the 1995 murder of 67-year-old Santiaga Paneque during an apparent robbery. After unsuccessfully appealing his conviction and pursuing state collateral review, Ayestas filed a federal habeas petition in 2009, raising a series of claims – including that, under Wiggins v. Smith, his trial counsel failed to conduct a reasonable mitigation investigation, and therefore violated Ayestas’ Sixth Amendment right to the effective assistance of counsel. Although that claim was initially rejected, it was resurrected when the Supreme Court ruled in Trevino v. Thaler that ineffective assistance of state post-conviction counsel could excuse a federal habeas petitioner’s failure to raise the ineffective assistance of his trial lawyer in the state post-conviction proceeding in states like Texas. In light of Trevino, the Supreme Court granted certiorari, vacated the decision below and remanded the case for further proceedings.

Back in the district court, Ayestas moved (for a second time) for funding under Section 3599(f) to hire a mitigation specialist to investigate his Wiggins claim. That motion described Ayestas’ trial counsel’s modest mitigation investigation, including their failure to consult with any mental health expert, notwithstanding Ayestas’ known history of severe substance abuse and other apparent indicators that Ayestas had mental health issues. The district court denied the motion concomitantly with its denial of Ayestas’ habeas petition on the merits (and its denial of a certificate of appealability). The 5th Circuit denied Ayestas’ application for a certificate of appealability, and affirmed the district court’s denial of his Section 3599(f) motion on the merits, holding that Ayestas could not show how a mitigation investigation would be “reasonably necessary,” because, “in light of the brutality of the crime,” “any evidence of ineffectiveness, even if found, would not support relief.”

II. The briefs

As it did in opposing certiorari, the state of Texas leads with the argument that the district court’s denial of funding is an “administrative function and not an exercise of Article III judicial power.” Given that the Supreme Court granted certiorari without asking the parties to address the matter, it’s unlikely that the jurisdictional issue will figure prominently in Monday’s argument, particularly because, as Ayestas points out in his reply brief, it seems to run headlong into a number of settled propositions concerning Article III judicial power.

On the merits, Ayestas’ argument focuses on the claim that the 5th Circuit’s “substantial need” test unduly cabins the scope of what Congress intended to authorize – and interferes with the ability of federal habeas counsel meaningfully to provide the “representation” contemplated by the Criminal Justice Act by imposing an obstacle to the investigation and development of even colorable constitutional claims. An important amicus brief by the American Bar Association echoes this conclusion, stressing that “the Fifth Circuit’s approach will make it extraordinarily difficult or impossible for counsel representing federal habeas petitioners to meet their professional responsibilities and will jeopardize the ability of federal habeas litigation to ensure the integrity, fairness, and reliability of capital convictions and sentences.”

Texas, for its part, saves its defense of the “substantial need” test for last. After arguing against the Supreme Court’s jurisdiction (an argument that, if valid, would also undermine the 5th Circuit’s jurisdiction to rule on the Section 3599(f) motion), the state offers a distinct argument based on the Anti-Terrorism and Effective Death Penalty Act, and its ban on the admission of new evidence in a federal habeas proceeding that was not presented to a state court. How could a mitigation investigation be “reasonably necessary,” the state argues, if any evidence it uncovered would be inadmissible in support of habeas relief? (Fifteen states, led by Arizona, filed an amicus brief in support of Texas largely endorsing this argument.)

After noting that Texas did not make this argument below (and therefore forfeited it), Ayestas offered two substantive responses in reply: First, even if AEDPA’s bar on new evidence applied, it is still distinctly possible that a proper mitigation investigation would help demonstrate, even based on the existing record, that Ayestas has a valid Wiggins claim. (Such a mitigation investigation might also uncover evidence that falls into the exceptions to AEDPA’s bar on new evidence, and so it would put the cart before the horse to hold that, as a result of AEDPA, the investigation could not be “reasonably necessary.”) Second, how AEDPA’s bar on new evidence applies to ineffective-assistance claims after and under Trevino is an open question, and one that the Supreme Court ought not be the first court to answer.

III. Conclusion

What all of this suggests is that Monday’s argument is likely to center on the question the justices granted – whether the 5th Circuit’s construction of Section 3599(f) is overly restrictive, or instead properly cabins the ability of state prisoners to use federal habeas petitions to bring substantial, rather than merely non-frivolous, claims that their trial counsel provided ineffective assistance of counsel. Although Ayestas is likely to find significant support on the bench for the problems that the 5th Circuit’s approach poses, the outcome may depend upon whether the justices agree that there is a workable definition of “reasonably necessary” that is more generous than the 5th Circuit’s approach, but that still ensures that, to qualify for funding under Section 3599(f), an ineffective-assistance claim will be more than just not frivolous (as Rule 11 of the Federal Rules of Civil Procedure already requires).

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Symposium: How the acting solicitor general (sort of) saved the travel ban

Symposium: How the acting solicitor general (sort of) saved the travel banSteve Vladeck is a professor of law at the University of Texas School of Law. In her contribution to this symposium, Leah Litman writes that “it’s likely we’ve already heard the court’s last and only words (which were no words at all) on the merits [of the travel ban] . . . because the case will likely be moot […]

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Symposium: How the acting solicitor general (sort of) saved the travel ban

Steve Vladeck is a professor of law at the University of Texas School of Law.

In her contribution to this symposium, Leah Litman writes that “it’s likely we’ve already heard the court’s last and only words (which were no words at all) on the merits [of the travel ban] . . . because the case will likely be moot by the time the court hears argument in the fall, or reaches a decision.” Whoever else claims victory in that scenario (hint: everyone), it seems to me that the real winner will be Acting Solicitor General Jeffrey Wall — who, in retrospect, may have understood how to maximize the government’s chances before the Supreme Court better than anyone else (including, perhaps, the justices themselves).

I

I’ve written (well, tweeted) before about some of the procedural quirks in exactly how the government brought the travel-ban litigation to the Supreme Court. Three, in particular, stand out:

First, although the U.S. Court of Appeals for the 4th Circuit issued its 10-3 en banc decision affirming a nationwide injunction of the key provision of the travel ban on Thursday, May 25, the government waited a full week before applying to Chief Justice John Roberts for a stay of that decision (pending the Supreme Court’s disposition of the government’s contemporaneous cert petition). That may not sound like a lot, especially since half of that week was Memorial Day weekend, but both legally and optically, any delay could have been seen as undermining the argument for such emergency relief — which was itself predicated on the claim that the Maryland and Hawaii injunctions were causing irreparable harm to the government every moment that they remained in force. Indeed, let’s not forget that the government could have asked the Supreme Court to step in two months earlier, had it sought certiorari before judgment in the 4th Circuit.

Second, and far more significantly, once the government finally did file its stay applications and cert petition, it requested expedited briefing but not expedited argument. In other words, the government asked the Supreme Court to decide whether it would take up an appeal from the 4th and, later, 9th Circuit’s decisions by the end of June, but didn’t want the justices actually to hear such an appeal until October. As with the delay in the filing itself, not asking for expedited argument seemed a risky gambit, because it put that much more pressure on the stay applications — asking the court, in effect, to reinstate the entire executive order for at least four months.

Especially given the precedent for emergency, end-of-term arguments and decisions that Lyle Denniston reminded everyone about, not seeking similar treatment seemed, at the time, a perplexing move on the government’s part. And even if the government was of the view that an immediate, emergency argument would actually be to its detriment (on the theory that, in such a circumstance, the justices would be more inclined to defer to the status quo), it could at the very least have sought an off-schedule September argument — as seen most recently with the reargument of Citizens United v. Federal Election Commission back in 2009. The difference between a September and October argument may not seem like much in the abstract, but if the executive order runs its course by the end of September (as now it seems it will), that could be the whole ballgame for the reasons Litman set out in her post.

Third, and a bit further into the weeds, when the 9th Circuit issued its own ruling on the travel ban on June 12, the government sought to extend the ongoing briefing on its stay application for an additional week — ostensibly to allow time to respond fully to the more recent ruling. This move may seem entirely technical, but it came while the Supreme Court’s press corps was awash with speculation that the justices might take the exact step to which Denniston had alluded, and hold an expedited hearing to resolve the case on the merits before recessing for the summer. However well-founded — or not — such speculation might have been, the government’s request, combined with the justices’ own travel schedules, necessarily ran out the clock on such a possibility.

And although the government did not get what it asked for substantively when the Supreme Court issued its interim ruling on June 26 (with a majority leaving the injunctions in place as applied to those with a “bona fide connection” to the United States), it got exactly what it asked for procedurally. The court granted the stays (in part), granted certiorari, and set the case for argument during its first scheduled sitting in October (and not a moment sooner). As the per curiam opinion notes on page 9, with a parenthetical explaining (and perhaps reflecting the justices’ own surprise) that “[t]he Government has not requested that we expedite consideration of the merits to a greater extent,” the cases will be heard “during the first session of October Term 2017.”

II

So why, exactly, would the lawyers in the Office of the Solicitor General, the very last people who would make tactical litigation mistakes before the Supreme Court, take three such seemingly unorthodox steps in presenting such important cases to the court? I’m only speculating, of course, but imagine that the lawyers in that office, who have an ethical and legal obligation to defend the official acts of the U.S. government to the fullest extent supported by law, had become convinced of the following three propositions:

(1) The district courts’ injunctions are overbroad in significant respects;

(2) If and when they reach the merits, at least five of the justices are likely to vote to invalidate the travel ban as applied to a large number of individuals – and thereby to affirm the injunctions to a significant extent; and

(3) Such a merits decision should be avoided if at all possible.

In that scenario, the goal would have been to structure the litigation to allow the Supreme Court to narrow the injunctions before holding oral argument and issuing a decision on the merits, and then to make the case go away before such an argument could happen. The court’s own summer recess provided the perfect cover for exactly such a maneuver, because it’s the only time all year that the justices go more than 90 days without a scheduled sitting.

Of course, this could all be a coincidence. Indeed, of the three quirky moves I highlighted above, two could have completely plausible alternative explanations. But the request for an October argument, specifically, indicates most strongly to me that these moves were all made by design. If so, then I think it’s worth admiring just how well-conceived that design was, at least thus far.

III

Besides providing an interesting back story, the above discussion brings up several larger points that I believe are worth considering.

For starters, the government’s apparent litigation strategy suggests that not even the administration’s own lawyers believe (or, at the very least, are reasonably confident) that the Supreme Court will uphold the entire executive order on the merits. Although many have suggested that the court’s interim June 26 ruling is proof that the justices are likely to side with the government on the merits if and when the time comes, the fact that a majority voted to leave the injunctions in place as applied to any non-citizen with a “bona fide connection” to the United States strongly implies the opposite. Simply put, the government’s lawyers may well have been on to something, and therefore fully justified in not pressing the matter more aggressively.

The strategy also enabled the acting solicitor general and his colleagues to accomplish as much as could reasonably have been expected under the circumstances. Getting the Supreme Court to put even portions of the executive order back into effect — in a part of the ruling from which no justice apparently dissented — was a modest victory legally, but a significant victory optically, especially if it stemmed from a skeptical assessment of the government’s chances on the merits.

Finally, and most importantly for present purposes, the apparent strategy to date is predicated on a fact not yet in evidence — that the controversy actually will become moot before the justices reconvene in October. That depends, to a large degree, on President Donald Trump. When the 90-day review contemplated by the executive order runs its course in September, does the president leave well enough alone (which might moot the case before the Supreme Court hears argument), or does he issue another executive order seeking to extend the “temporary pause” on entry from the six designated countries, which would certainly give the justices something to decide?

We’ll have to wait and see, of course. But the government’s litigation strategy thus far suggests that at least some of the Justice Department’s top lawyers may well be rooting, whether for personal or professional reasons (or both), for the former.

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