The Circuit Justices don’t apply uniform guidelines on the subject of emergency purposes. Justice Jackson, for instance, refused to promptly name for a response in Libby v. Fectau, a case the place the bulk finally granted emergency docket reduction.
I’ve additionally been protecting my eye on Trump v. AFGE. On Could 9, A federal district courtroom issued a TRO towards the Trump Administration to dam the removing of sure staff. On Could 16, the Solicitor Normal utilized for an emergency keep with Circuit Justice Kagan. And Kagan did completely nothing. She did not even name for a reply.
On Could 22, the District Court docket entered a preliminary injunction, which the federal government promptly appealed. On Could 23, the Solicitor Normal filed a letter with the Supreme Court docket, withdrawing the keep utility. The quick letter states:
On Could 16, 2025, we filed within the above-captioned case an utility for a keep of an order issued on Could 9, 2025, by america District Court docket for the Northern District of California. Labeled as a short lived restraining order, that order barred quite a few executive-branch businesses from taking varied actions associated to an govt order and steering memorandum regarding federal businesses’ reductions in power. The order additionally directed the disclosure of sure deliberative executive-branch planning paperwork. Yesterday, Could 22, the district courtroom issued a preliminary injunction succeeding its short-term restraining order. Immediately, america filed a movement in america Court docket of Appeals for the Ninth Circuit to remain that new order pending attraction. In mild of these developments, america withdraws its Could 16 keep utility on this Court docket.
I believe I discovered what occurred right here. Justice Kagan realized that the District Court docket would nearly actually substitute the unappealable TRO with an appealable PI. So she did not carry a finger. She would slightly look ahead to the conventional appellate course of to play out within the Ninth Circuit. Apparently, Justice Kagan didn’t suppose a lot of the federal government’s pressing want for a ruling.
As a sensible matter, Kagan’s delay extends by not less than a month how lengthy the federal government can be topic to an injunction. There is not even the possibility for an administrative keep. This case illustrates how a lot energy and discretion the Circuit Justice has.
Certainly one of my proposals for bilateral judicial reform is to rotate the circuit justices yearly. How is it truthful that Justice Kagan at all times has authority over the Ninth Circuit whereas Justice Alito at all times has authority over the Fifth Circuit? Neither Justice has any geographic ties to the realm. These ought to shift yearly. And whereas I am on the subject, the Court docket ought to contemplate an ordinary timeline for responses with emergency purposes. It appears unfair that particular person Circuit Justices can recreation the system.
