It Takes Four Votes, But Count to Five
Just as rubbernecking at the scene of a car crash is difficult to ignore, appellate advocates find it difficult to ignore the path from the trial courts to the Supreme Court for the various challenges to the new administration’s claims of executive authority that go well beyond the unitary executive theory. Some of it will unquestionably be held illegal or unconstitutional; some of it upheld. Friends will ask what the courts are doing, or what they might rule. Consider this an orientation on one set of cases and why casual observers might not see the full picture of the courts’ slow and tentative approach to what is unfolding.
For its unusual path to the Supreme Court and likely return, I want to focus on two separate cases that became one and challenged the administration’s freeze on foreign aid. Federal District Court Judge Amir Ali issued a temporary restraining order very quickly, as those types of injunctions usually occur. The plaintiffs soon returned to court asking for an enforcement order, claiming that the government had not complied with the order by releasing any money. The order was issued, and the administration was required to file a status report about its compliance with the order.
The government appealed to the DC Circuit, which turned the appeal down because it has no jurisdiction to hear an appeal from a TRO and that the requirements for seeking a writ of mandamus had not been met. The government petitioned Chief Justice Roberts, as the circuit judge, for a stay pending appeal and an administrative stay of the impending deadline set by Judge Ali’s order. The chief justice granted the administrative stay while the full Court considered further action.
Meanwhile, the government filed its status report with the district court, asserting that it had conducted a careful review of the thousands of State Department and USAID grants, contracts, and cooperative agreements in the course of a couple of days and found that all were subject to immediate termination. In other words, compliance with the TRO was not necessary. The plaintiffs returned to court asserting the report demonstrated the administration’s defiance of the court’s order requiring the restoration of foreign aid. Judge Ali issued a limited order requiring that, within 48 hours, the government pay all invoices and letters of credit drawdowns for work already completed before the TRO was issued and otherwise take all necessary actions to ensure “prompt payment of appropriate foreign-assistance funds going forward” without a deadline.
The Supreme Court then acted, issuing a 5-4 per curiam decision that treated the government’s application as too late given that the 48-hour deadline for paying already obligated funds had passed, but nonetheless ordering the district court to clarify the government’s obligations to comply with the TRO, taking the feasibility of mustering the funds into account. Justice Alito authored a comparatively lengthy dissent, characterizing the order upheld by the majority as a $2 billion burden on taxpayers “not because the law requires it, but simply because a District Judge so ordered.” Of course, the district court emphasized that the order was compelled by congressional spending mandates and contractual obligations that were legally binding so it hard to reconcile Justice Alito’s complaint about judicial overreach on behalf of four justices with what had occurred.
What makes the action by the Supreme Court even more interesting than what each side said is the likelihood that the case will return for a merits review. Four justices dissented. The Court grants certiorari upon the vote of four justices. The number of dissenting justices seems to guarantee that the merits will be decided by the full Court. Justice Brennan, however, used to say that, while four justices can vote to take a case, you should not supply the fourth vote unless you can court to five. That means that the four dissenters who reached the merits will want to know that their vote to grant certiorari will not be in vain and that there is a vote to be picked up from the majority. A petition for certiorari is likely coming, with a request for a stay pending its disposition. What the Court does with it will test that theory – and one other. There is a tradition at the Court to grant a stay when a petition is granted, so that a fifth justice, even if not supporting certiorari, usually joins the four as a courtesy to hold the “status quo” while the case receives review.
It pays to understand the Court’s traditions and unwritten rules. When some of this occurs in the near future, those who take what the Court is doing at face value may misinterpret those actions as signaling a change in positions from someone in the majority. Those who understand will know whether the Court is following its own norms – or departed from them. It will be too early to predict an outcome.