There are only a few circumstances in which the Supreme Court has traditionally granted certiorari before judgment, i.e. petitions related to a case they’re already hearing so they can consider them together. Historically, they’ve also taken some cases involving international relations and presidential authority before judgment. Finally, and most relevant, the court sometimes grants certiorari before judgment simply because it’s asked to do so by the federal government.
It’s DOJ that’s threatening to ask SCOTUS to hear its case before the Ninth Circuit rules, so their request would technically fall into one of categories of petition the court sometimes grants. But this isn’t the type of case that qualifies to be expedited.
“This case is nothing like the rare and unique circumstances that have previously justified certiorari before judgment,” the Gibson Dunn brief said. “Skipping the courts of appeals may be appropriate where necessary to protect the national defense during wartime; prevent a treaty breach; or speed grand jury proceedings naming the sitting President as an unindicted co-conspirator in defrauding the United States. But there is no comparable urgency here.”
DOJ’s request is a power play. Appalling as a threatening letter from the executive to the judiciary is, it’s surprising that DOJ notified the Ninth Circuit at all. The administration would rather not risk another appellate tear-down from the Ninth Circuit—and they’ve shown little regard for judicial traditions. Perhaps they’re not ready to concede that they’ve no intention of respecting appellate courts yet. More likely, they’re sending a much bigger message.
The warning DOJ’s issued has implications well beyond the Ninth Circuit. They’re reminding us that not only can they ask SCOTUS to hear a case before the appeals court, they can be almost certain that SCOTUS will grant the request.
It only takes four votes to grant certiorari. Republicans have those locked down, at least when it comes to hot-button issues: Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. Whenever they like, the four can pluck cases they deem important, wish to resolve quickly, or prefer not to have scrutinized by a lower court out of the lower courts. If cert before judgment became routine, trust in the judiciary would be yet further imperiled.
Looking ahead, the foursome can also force issues Chief Justice John Roberts would let lie. Roberts can do his damnedest to rule for “one nation” and dodge hyper-divisive cases, but, ultimately, what the court hears isn’t up to him. Roberts is a conservative—we know how he’ll rule when push comes to shove. If used to upset swathes of precedent, this, too, could create a pattern deeply damaging to the judiciary.