The Exception, Not the Practice

In March, granting emergency relief in a California schools case, the Supreme Court did something unusual enough that one of the justices stopped to explain the explanation. “The Court has chosen to accompany today’s order with a per curiam opinion that explains its reasoning,” Justice Barrett wrote in Mirabelli v. Bonta, joined by the Chief Justice and Justice Kavanaugh. Interim applications, she said, “routinely require the Court to balance the lock-in risk of saying too much against the transparency cost of saying too little. In my judgment, the benefits of explanation win out here.”

Three months later, dissenting in Trump v. Cook, Justice Alito made a stronger claim, and a factual one. “If a majority had desired, we could have issued a statement explaining our decision,” he wrote. “That is exactly how we have handled nearly all our stay applications in recent years.”

That sentence is testable. The Court publishes everything it does on applications, and the term now ending is a complete record. Counted against it, the claim is not close to true.

Eight, against about a hundred

In the term that began last October the Court issued eight opinions of the Court on an emergency application. Seven were per curiams; the eighth, Trump v. Cook, was signed by the Chief Justice after full argument. Five of the eight arrived between 24 August and 25 September, which is what has produced the impression of a new practice. In the four preceding terms the same count runs four, zero, two, four.

Now the denominator. Across the same term the full Court disposed of roughly a hundred and two further emergency applications in the ordinary way: a single sentence granting or denying, sometimes with a note that a justice or three would have ruled otherwise, and no reasons at all. Of the term’s eighty-three miscellaneous orders, exactly one contains anything resembling an explanation — a line in Margolin v. National Association of Immigration Judges observing that “the Government has not demonstrated that it will suffer irreparable harm without a stay.” One.

Add in five dispositions where the Court’s reasoning sits at the head of a PDF filed among separate writings rather than as a slip opinion, and the term’s explained emergency rulings come to thirteen. Against roughly a hundred and fifteen dispositions, that is about eleven per cent. Stephen Vladeck’s tally for the previous term counted 140 full-Court rulings on emergency applications and 31 grants of relief, which is the same order of magnitude. “Nearly all” it is not.

The page everyone counts is the wrong page

Part of the confusion is bibliographic, and worth spelling out because it inverts the answer. The natural place to look is the Court’s “Opinions Relating to Orders” listing. This term it holds forty-six entries; last term sixty-seven; before that thirty-nine, thirty-seven and fifty. It looks like the obvious ledger of judicial explanation.

It contains no per curiams at all. Not one, in any of those five terms. Every entry names an individual justice, because that page exists to collect separate writings — dissents, concurrences and statements — while opinions of the Court go onto the slip-opinion list with the merits decisions. Of this term’s forty-six entries, thirty-two are dissents, nine are statements respecting a denial, five are concurrences, and only eighteen concern an emergency application at all.

So the table that appears to measure the Court explaining itself measures the opposite: occasions on which a justice wrote because the Court did not. A rising number there would be evidence of dissatisfaction, not of reasoning. And it does not rise. Fifty, thirty-seven, thirty-nine, sixty-seven, forty-six.

Two orders, fifteen days apart

The clearest evidence that explanation is a choice rather than a practice is that the same litigation can be handled both ways inside a fortnight. On 10 September the Court granted a stay in People Not Politicians v. Onder, the Missouri redistricting fight, in a hundred and thirty words of pure form: the application, referred to the Court, is granted. No reasons. On 25 September, in the same case under a new number, it issued a five-page per curiam with no noted dissents, which explained at length why its earlier order had meant what it said.

The same thing happened on a single night in March. Mirabelli drew a nineteen-page per curiam and Justice Barrett’s defence of writing it. Malliotakis v. Williams, decided hours apart, drew a hundred-odd words of boilerplate, and Justice Sotomayor counted them: “The Court’s 101-word unexplained order can be summarized in just 7: ‘Rules for thee, but not for me.’”

This magazine noted on Thursday that the SAVE stay came with reasons attached, and said so because it is worth saying when many emergency grants arrive with none. The point survives the arithmetic. What the arithmetic adds is that the reasons were a favour, not a rule.

What follows from a habit that is not one

The objection is not aesthetic. An order that decides who wins while a case runs is, in practical effect, a ruling, and lower courts have to work out what it requires of them. Justice Kagan, dissenting in Mirabelli, described the machinery: briefing “scant and, frankly, inadequate,” no argument, no conference, “a short fuse — a matter of weeks,” and then relief “by means of a terse, tonally dismissive ruling designed to conclusively resolve the dispute.” Justice Alito himself, in a mifepristone case in May: “The Court’s unreasoned order granting stays in this case is remarkable.”

Alito’s two positions are not in tension so much as they are the whole problem. He is right that the Court could explain itself whenever it wanted; he is wrong that it does. The Chief Justice, writing in Cook, gave the honest version of the standard: in that extraordinary case, with argument and months of deliberation behind it, “we see no reason to leave the public in limbo.” Which concedes that in the ordinary case there is a reason, and does not say what it is.

Eight opinions in a term is double the usual, and four consecutive explained grants over the summer is a real change in behaviour, worth noticing and worth encouraging. But a practice is something a court does by default and departs from for cause. On this docket the default is still a sentence, and the explanations are the exception — issued when a justice is willing to spend a paragraph defending the decision to write at all.