LEILA FADEL, HOST:
As Adrian mentioned, the Supreme Court's ruling was part of its emergency docket. Shortly before that ruling was released, Justice Amy Coney Barrett defended the court's use of emergency orders in an interview with Sarah Isgur of SCOTUSblog. Our co-host Steve Inskeep spoke with Isgur about her interview.
STEVE INSKEEP, BYLINE: For those who don't follow this all the time, what is the emergency docket or shadow docket?
SARAH ISGUR: When the Supreme Court decides cases, we're used to them having briefing for a couple months, oral arguments over the course of a few hours, and then we get opinions weeks, sometimes months later. What this emergency docket is is that in-between period. What should the law be between now and when that case may be finally decided a year or two later? So it's the interim, the status quo question that the Supreme Court is deciding on this emergency docket.
INSKEEP: Which sounds minor. But in the Trump administration this year, there've been a number of emergency docket rulings that would seem to have permanent or near-permanent effects, like whether people can be deported right now or not.
ISGUR: That's true. Even the birthright citizenship question - whether someone is a citizen when they are born in the United States - is not really something we think of as simply a status quo question while the case percolates through the courts.
INSKEEP: So are these emergency docket rulings then becoming profoundly important, not just a technical or temporary ruling?
ISGUR: Profoundly important is an understatement at this point. It is the main focus of attention on the Supreme Court, especially in this administration, when you have a president doing so much through executive orders that are then going up through the emergency docket to decide whether those orders will be in effect while cases are pending or not in effect. This includes whether people that Trump has tried to remove from independent agencies like the Federal Trade Commission or the National Labor Relations Board will stay in their jobs in the interim. As we mentioned, birthright citizenship, deportations, all of these things - what is the status quo while these cases are working their way through the courts?
INSKEEP: These are rulings that can be controversial. They often overturn the lower court judge. In many cases, they've been in favor of Trump, and in many cases, they're not explained. Some judges spoke anonymously to NBC and said this puts them in a difficult position. And there's also a judge on the record, Judge Allison Burroughs, who ruled that the Trump administration has illegally withheld money from Harvard University and wrote in a footnote that these emergency rulings, quote, "have not been models of clarity" and that lower court judges must grapple both with existing precedent and also guidance from the Supreme Court that appears to set that precedent aside without much explanation. Wow. How is the court, and particularly Amy Coney Barrett, responding to that?
ISGUR: Well, I interviewed Justice Barrett about her new book, "Listening To The Law," and I asked her specifically about this emergency docket. How are lower courts supposed to grapple with this, and why isn't the Supreme Court writing as much about the reasoning on these decisions?
(SOUNDBITE OF ARCHIVED RECORDING)
AMY CONEY BARRETT: We're figuring out how to think about precedent on the emergency docket. And when you write a lot, there is a lock-in effect. One of the drawbacks of the emergency docket is that there's no opportunity for percolation. There's often not opportunity for a lot of reasoned opinions below. So we are in a position where we might be writing sooner than we want to be or with less information than we want to be. So, you know, sometimes less is more.
INSKEEP: That, Sarah Isgur, is to me a revealing acknowledgment that in many cases, the justices are not yet sure what they think, have not fully reasoned things through, and yet they're making these profound choices.
ISGUR: I think it is very clear that the emergency docket of today is not going to be what it looks like a year from now. I think the Supreme Court justices - this is a multimember court. Nine people don't quite know how to deal with all of these new executive order lawsuits coming through. Remember, coming up, we still have tariffs, questions about whether you can fire a governor on the Federal Reserve. All of that will be coming up on the emergency docket here in just the next few weeks.
INSKEEP: If the justices have not had time to fully think through the case, could they, in some of these instances, actually preserve the status quo, rather than permitting the president to go ahead and fire someone or permitting the government to go ahead and deport people who would have trouble getting back?
ISGUR: Ah. This gets to what it means to have a status quo and what the proper role of the judiciary is - again, very much up for debate. One version is, it should be the status quo before that president came into office. But another version is that this is the politically accountable branch that is only in office for four years and that any time you prevent the government, whether it's state or the president or the federal government, from implementing one of its policies, you are causing irreparable harm to the people's elected branches. And so that's a version of the status quo as well. You saw the Biden administration argue this when it came to the eviction moratorium, student loan debt forgiveness, the vaccine mandate, for instance. All of those also came up in very similar postures.
INSKEEP: Sarah Isgur is the editor of SCOTUSblog and talked with Justice Amy Coney Barrett for a podcast called "Advisory Opinions." Thanks so much.
ISGUR: Thank you, Steve. Transcript provided by NPR, Copyright NPR.
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