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.