An Important Intervention by the Supreme Court

Steve Vladeck: “First, the full Court didn’t wait for the Fifth Circuit—or act through the individual Circuit Justice (Justice Alito). Even in other fast-moving emergency applications, the Court has often made a show out of at least appearing to wait for the lower courts to rule before intervening—even if that ruling might not have influenced the outcome. Here, though, the Court didn’t wait at all; indeed, the order specifically invites the government to respond once the Fifth Circuit weighed in—acknowledging that the Fifth Circuit hadn’t ruled (and, indeed, that the government hadn’t responded to the application in the Supreme Court) yet. This may seem like a technical point, but it underscores how seriously the Court, or at least a majority of it, took the urgency of the matter…”

“Second, the Court didn’t hide behind any procedural technicalities…. Here, though, the Court jumped right to the substantive relief the applicants sought—again, reinforcing not just the urgency of the issue, but its gravity.”

“Third, and perhaps most significantly, the Court seemed to not be content with relying upon representations by the government’s lawyers.”