Supreme Court has Reinstated Trump Termination of NIH Grants

I don’t think the Court is ok, you guys.  This shadow docket order is a fascinating read.  This dispute amongst the justices is also quite a jarring contrast to the Trump v. CASA order on universal or nationwide injunctions (and definitely not birthright citizenship).  I thought I’d share a few reactions with this group, since I was coincidentally presenting to colleagues today about universal injunctions.

 

1. Justices Gorsuch and Kavanaugh seemingly are chastising lower court judges in this case who “may sometimes disagree with this Court’s decisions, but are never free to defy them.”  They say the lower court actions “wish anarchy to prevail within the federal judicial system” by “casting California aside” because they did not see a different case with different claims and facts the same way that Gorsuch and Kavanaugh did  They felt compelled to speak out about this defiance in light of similar claimed defiance in Boyle and Dep’t of Homeland Security v D.V.D.  But only these two justices, tellingly.  To them, apparently reasonable minds cannot differ and their earlier pronouncement was clear.  I know Adrian Vermeule has also argued similarly about some of these cases.
2. These are quite bold pronouncements, especially when 4 of 5 other justices thought that the earlier shadow docket order in Dep’t of Ed. v. California was distinguishable.  What was clear to Gorsuch and Kavanaugh was not clear to Justice Barrett, who in her controlling opinion grants a stay of the order vacating termination of the relevant grants, but doesn’t vacate the rest of the lower court order.  And it wasn’t clear to Chief Justice Roberts or the 3 liberal justices who distinguished this case based on vacatur of the challenged directives under the APA rather than only seeking payment under the grants.  But even though 5 Justices disagreed with Gorsuch and Barrett, they accuse the lower courts of defying their prior order for similarly disagreeing.  Something is not right here.  I’m sure they were irritated that the lower courts did not do what they wished, but calling this defiance seems like a bridge too far, in my view.
3. Kavanaugh also took the opportunity, this time joined by Thomas, Alito, and Gorsuch, to assert the duty of the Supreme Court to make “the interim forum-challenging decision.”  But he doesn’t explain why, other than ipse dixit.  He notes the divergent views among the 4-1-4 split in this case, and says for the Court, “there is no way to avoid deciding the application.”  If someone can explain to me what he means here, I’d appreciate it.  I don’t see why, as Justice Jackson argued, the Court could not simply deny the emergency application from the Trump administration and let the lower courts proceed to resolve the issues in the first instance, so then the Court could review their work on appeal in the normal course.

1. This portion of today’s shadow docket order really echoes Kavanaugh’s position in Trump v. CASA that SCOTUS has to be the “ultimate decider of the interim legal status of major new federal statutes and executive actions.”  I always thought this part of Kavanaugh’s concurrence really stood out in Trump v. CASA, where he otherwise signed on to the decision saying that federal courts (including presumably the Supreme Court) should generally not issue universal injunctions.  Maybe he’s making some unexplained distinction between nationwide and universal injunctions that eludes me.  But Justice Kavanaugh clearly seems to think the Supreme Court should ensure national uniformity with respect to major new laws and actions, even though other courts must limit their equitable relief to only benefit the plaintiffs in individual cases.
2. The other connection to Trump v. CASA that I noted was how Kavanaugh went out of his way to dismiss the worries of “some” that “an early or rushed decision on an application could ‘lock in’ the Court’s assessment of the merits and subtly deter the Court from later making a different final decision.”  I don’t know who Justice Kavanaugh had in mind here as he didn’t cite any of these nebulous critics, but I am someone who wrote a whole article about The Lock-In Effect of Preliminary Injunctions.  Maybe Justice Kavanaugh is keeping an open mind himself on the merits of these cases.  But he makes clear that lower court judges even in different cases should not disagree with his early and rushed pronouncements on the merits in these shadow docket cases.  If the Supreme Court’s shadow docket rulings are now to be controlling on the merits in other cases, at least when the merits are necessarily considered as preliminary relief is requested, that sure seems like lock in to me.  All these cases accumulating, with huge irreparable harms being imposed on the unfortunate losing parties, will make it harder, I maintain, for the Supreme Court to eventually admit it was wrong and that all that harm should never have occurred after all.  But Kavanaugh does manage to cite one case from 1943 where the Court changed its mind on the merits, so I suppose there is that.

4. On the point of whether shadow docket orders are precedential, I found today’s order really interesting in light of the debate over the Boyle case from a month ago about removal of federal officers protected from removal by law.   As Steve Vladek pointed out in his excellent substack One First, the Court’s explanation of the precedential value of shadow docket orders was not very persuasive.  There, the Court said “Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases.”  It then went on to explain its view of the balance of harms in these types of cases, saying the balance favors the President removing an official notwithstanding contrary laws passed by Congress and as-yet unrepealed Supreme Court precedent.  Steve argued, compellingly in my view, that the paucity of reasoning and faithless application of the standards for equitable relief in these orders makes it an impossible mind-reading exercise.  Today order highlights the challenge of figuring out not just what the order meant, but what 5 of the justices will think the order meant as applied to different circumstances. 

1. I think actually the assertion from today’s order is even worse than the one in Boyle.  Boyle at least disclaimed that its interim rulings on the merits were conclusive, and today’s order starts out the same, at least the Gorsuch+Kavanaugh concurrence does.  It says “Of course, decisions regarding interim relief are not necessarily ‘conclusive as to the merits’ [citing Boyle], because further litigation may follow.”  So at least the Supreme Court, and perhaps even lower courts, might change their assessment of the merits as the litigation continues.  But in today’s order, Justice Gorsuch goes beyond that to explain that the reasoning of shadow docket orders nevertheless “carries precedential weight in ‘future cases.’”  That sure sounds to me as if decisions regarding interim relief are actually conclusive as to the merits, and even in different cases with different facts and different legal claims.  Gorsuch and Kavanaugh sure do not seem to think their shadow docket orders are not precedent, and they expect faithful compliance by lower courts rather than defiance.  What a world we live in!