The Court-Packing Plan of F.D.R. was divided into two parts. We must reintroduce the second.
Professor Vladeck teaches constitutional law and federal courts at the University of Texas School of Law. He also co-hosts a national security law podcast.
The Supreme Court will do something it hasn’t done since 1970 when it hears oral arguments on Friday in two sets of objections to Biden administration guidelines regarding Covid vaccinations. Formal sessions are usually held only for matters 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).
However, the justices will hear arguments on four emergency applications on whether two administration rules concerning vaccine mandates should be stopped or allowed to take effect before the normal appeals process begins on Friday.
Whatever happens in these cases, is symbolic of an indisputable — and troubling — trend: new state or federal rules are being challenged in court very immediately. The losing party quickly seeks emergency relief from the appellate courts. The losing side in the appeals courts then petitions the Supreme Court to intervene at the outset of the case rather than at the conclusion.
The number of emergency relief cases has risen dramatically, including vaccination mandates, Donald Trump’s feud with a congressional committee investigating the Capitol brawl, and challenges to Texas’ abortion statute. What was formerly the exception to the rule of law has now become the new normal of government by injunction, i.e., judicial order.
In these conditions, opponents of the ruling party turn to the courts rather than the democratic process to overturn policies they don’t like. They look for a district court with an ideologically sympathetic judge who will be required to make critical policy decisions on the fly, with little time to prepare a factual record and with national ramifications.
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Following these decisions, appeals courts, including the Supreme Court, usually decide only on the status quo for the duration of the cases, such as whether lower-court injunctions should be paused or whether appellate courts should intervene to block policies that lower courts have refused to block.
This litigation is extremely perplexing to policymakers and stakeholders since the law appears to change every minute, and it occurs at the expense of “regular” litigation, which is pushed to the back burner as courts dedicate more of their limited resources to these “emergency” appeals.
This does not need to be the case. Congress should take a page from Franklin Delano Roosevelt’s controversial court-packing plan — not the bit about growing the Supreme Court, but the part about requiring special three-judge panels to hear lawsuits attempting to overturn state or federal rules, rather just eccentric district judges. Roosevelt forewarned that the courts may become a “third house of the national legislature.” History is about to repeat itself, and Congress has the power to intervene.
The administration is asking the Supreme Court in one of the cases filed on Friday to clear the way for a federal regulation requiring all Medicare and Medicaid providers to be fully vaccinated, a condition that was previously barred by two federal district courts.
In the other case, plaintiffs from 26 states are asking the court to put a hold on the Occupational Safety and Health Administration’s demand that all large-company employees be vaccinated or tested on a regular basis. (This lawsuit came out of a federal appeals court in Cincinnati, which refused to block it in December.)
The Supreme Court has been far more receptive to these emergency relief pleas. The justices granted 20 such requests during the most recent full term, the most of any term on record. The vaccination cases will be the fourth and fifth times this term that the justices have heard argument at such an early stage of the lawsuit, after three other cases in identical situations were pushed to the merits docket.
Meanwhile, the justices are making fewer decisions in full-fledged cases than at any time since the Civil War, with only 53 in the Covid-shortened October 2019 term and 56 in the (full) October 2020 term. The justices like to declare that they’re “a court of review, not first instance,” but that’s becoming increasingly incorrect in the most important cases.
Some argue that the courts are just responding to real-world emergencies. The trend lines, on the other hand, show otherwise. The Supreme Court’s emergency docket began expanding qualitatively and quantitatively in the early 2010s, far before Covid.
Similarly, the increase of court rulings prohibiting federal policies may be traced back to the middle of that decade. And, because of the federal judiciary’s rising polarization, unsatisfied plaintiffs in some states (including the states themselves) may endeavour, properly or wrongly, to persuade a neighbouring district judge to frustrate a president of the other party’s domestic agenda.
This pattern also occurred during Roosevelt’s first term, prompting him to complain that court orders “issued almost automatically” brought the government to a halt, preventing important statutes from taking effect “against any individual or organization with the means to employ lawyers” and forcing laws to go through “the entire hierarchy of the courts.”
After failing to persuade Congress to increase the number of seats on federal courts (not only the Supreme Court), he persuaded Congress to approve a bill that limited the powers of individual district judges and expedited appeals to the Supreme Court in 1937.
Any suit seeking an injunction against a federal statute or policy was required to be heard by a special three-judge district court panel, with at least one judge from the Court of Appeals. Any decision made by such a panel could be automatically and instantly appealed to the Supreme Court, allowing the merits of the disagreement to reach the justices rapidly (by combining the functions of the two lower federal courts) but on a full record.
The idea was to cut down on the number of outlier lower-court decisions and speed up the examination of cases that proceeded through these three-judge panels. Returning to this technique would limit cherry-picking of outlier judges because finding three (or two) such judges is more difficult than finding one. We should also expect more consistent decision-making and a faster road to full merits review by the Supreme Court with three-judge panels.
The federal dockets had swelled during (and as a result of) the civil rights movement, and there was a widespread sense that individual judges could be trusted to handle the same cases, therefore Congress abolished these statutes in 1976.
The arguments on Friday — and the broader tendencies of which they are a symptom — highlight why the other component of Roosevelt’s judicial reform agenda should be revisited. Reasonable minds will disagree about which cases should be heard by such panels, but it’s becoming increasingly evident that many should — and that the current state of affairs is unhealthy, stupid, and unsustainable from both the courts’ and our perspectives.
Stephen I. Vladeck (@steve vladeck) is a federal court and constitutional law expert at the University of Texas School of Law. He also co-hosts the podcast “The National Security Law Podcast.”
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