Presidential Commission on the Supreme Court of the United States
effect on lower courts,[65] or to specify which aspects of individual rulings should or should not be construed as precedent, these are welcome developments.
3. Existing Norms of Deference
A committee of regular advocates before the Court, including several former Solicitors General and Deputy Solicitors General, provided testimony highlighting established principles that the Court has endorsed and yet may not be regularly applying.[66] These principles, if applied more consistently, might relieve pressure on the Court to intervene early in at least some lower court proceedings. For example, their testimony pointed to “the Supreme Court’s traditional ‘two-court rule,’” which places an especially heavy thumb on the scale against reversing findings of fact that have been made by the trial court and affirmed by a court of appeals.[67] Also, “when the Court of Appeals sets an expedited schedule to address an important constitutional issue, the interest in ordinary process weighs against Supreme Court intervention.”[68] One potential cost of more regular adherence to such principles might arise from privileging lower court rulings that turn out to be erroneous. An additional limitation is that these principles are relevant only to a subset of cases. The reach of both principles may be expanded, however, by the greater use of expedited scheduling in the federal appeals courts for cases likely qualifying as emergencies.[69]
4. Nationwide Injunctions
Another approach would aim to eliminate or reduce the number of “nationwide” or other defendant-oriented injunctions in the lower courts, some of which give rise to emergency applications to the Court.[70] Recommendations along these lines, including proposed legislation, have been primarily motivated not by concerns about the Court’s emergency orders but by considerations about the power of the lower courts; such proposals have inspired extensive debate among commentators and policymakers, which we do not rehearse or evaluate here.[71] A witness before the Commission proposed the alternative of legislation allowing the government to “transfer all civil suits seeking ‘nationwide’ injunctive relief to the D.C. district court—to avoid the concern of overlapping (or diverging) ‘nationwide’ injunctions.”[72] Funneling litigation involving the federal government into a single court, however, would only affect the subset of cases in which federal law or policy is at issue—and perhaps only the still-smaller subset in which there is a realistic risk of conflicting injunctions.
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