The federal courts serve as our first responders in conflicts over constitutional rights and the separation of powers. They are called upon to react—fast—to legal challenges to governmental actions. To avert harm before it’s too late, they may rule within weeks, days, or even hours. They have done so in recent cases about free speech, freedom of the press, election law, independent agencies, federal workers, domestic troop deployments, spending and taxation, due process, search and seizure, and more.
The trial judges and appeals courts of the federal judiciary have long been tasked with this kind of rapid response. Lately, the Supreme Court has also joined the fray, intervening in high-profile cases through interim orders on its emergency docket.
Responding fast like this does not imply skipping over the slower, regular process for deciding a case. When trial judges issue preliminary injunctions, or when the Supreme Court issues interim orders, the whole point is to buy time for the courts to examine the case with more care before making final decisions about the facts or the law. The fast-track ruling is only meant to set a temporary holding pattern while the case continues along the slower track. So the court is not judging fast instead of judging slow. In principle, it will be doing both—judging fast and slow—in the very same case.
In the lower federal courts, this two-stage process is tried and true. But the Supreme Court’s spiraling use of it has been disconcerting, drawing heavy criticism even among the Justices. And it has upended how we think the judicial branch works: What does it mean when the same court that traditionally waits to have the last word is now also jumping in as a first responder?
So far, the Supreme Court’s muddled double role has been confounding for the public and disorienting for other federal judges, threatening both the cohesion and the credibility of the judicial branch. The need for clarity will only grow, as high-profile cases that the Supreme Court addressed earlier in an interim order (judging fast) start to come back for a final decision (judging slow). Seeing this, people may fairly wonder: If the Supreme Court is only now deciding the legal issues for real, then what was it doing the first time around? And what, really, will be different this second time around?
These questions point to a further hazard of a new normal where the Supreme Court rules twice—fast and slow—in high-profile cases: the risk that its final decisions will increasingly be seen as post hoc rationalizations of judicial hot takes.
It should help that a ruling on the emergency docket is supposed to differ in fundamental ways from a final decision on the merits. It’s not just faster. It’s a “different animal,” officially: The purpose is different. The considerations are different. And the shelf life is different, because an interim order evaporates as soon as the case is over.
These contrasts, however, also raise the stakes for disentangling these two judicial functions not only in theory but also in action. Whether the Supreme Court will manage to do so remains to be seen.
In the period ahead, here are things to watch for: First, how forcefully will the Supreme Court disavow any influence from its interim orders when making its final decisions? An interim order is based partly on a short-term guess about the future result in the same case. So it must not become the very basis for that result. That would be circular, confirming the worst.
The short-term guess also doesn’t set legal precedent the way that a final decision does (called stare decisis). It might guide related guesses in other preliminary rulings (call it stare divinatis), but not final decisions needing a conclusive answer. Will the Supreme Court make this clear? Or will it muddle things more?
Most tellingly, how often will the Supreme Court make a final decision where a different side wins than in the interim phase? It’s happened before, as one should expect. Such a decision would come too late for those who suffered meanwhile. Yet everyone would know that its lasting impact—on the law, on future parties, and on our constitutional democracy—is not just the drawn-out echo of a hurried hunch.
The federal courts serve as our first responders in conflicts over constitutional rights and the separation of powers. They are called upon to react—fast—to legal challenges to governmental actions. To avert harm before it’s too late, they may rule within weeks, days, or even hours. They have done so in recent cases about free speech, freedom of the press, election law, independent agencies, federal workers, domestic troop deployments, spending and taxation, due process, search and seizure, and more.
The trial judges and appeals courts of the federal judiciary have long been tasked with this kind of rapid response. Lately, the Supreme Court has also joined the fray, intervening in high-profile cases through interim orders on its emergency docket.
Responding fast like this does not imply skipping over the slower, regular process for deciding a case. When trial judges issue preliminary injunctions, or when the Supreme Court issues interim orders, the whole point is to buy time for the courts to examine the case with more care before making final decisions about the facts or the law. The fast-track ruling is only meant to set a temporary holding pattern while the case continues along the slower track. So the court is not judging fast instead of judging slow. In principle, it will be doing both—judging fast and slow—in the very same case.
In the lower federal courts, this two-stage process is tried and true. But the Supreme Court’s spiraling use of it has been disconcerting, drawing heavy criticism even among the Justices. And it has upended how we think the judicial branch works: What does it mean when the same court that traditionally waits to have the last word is now also jumping in as a first responder?
So far, the Supreme Court’s muddled double role has been confounding for the public and disorienting for other federal judges, threatening both the cohesion and the credibility of the judicial branch. The need for clarity will only grow, as high-profile cases that the Supreme Court addressed earlier in an interim order (judging fast) start to come back for a final decision (judging slow). Seeing this, people may fairly wonder: If the Supreme Court is only now deciding the legal issues for real, then what was it doing the first time around? And what, really, will be different this second time around?
These questions point to a further hazard of a new normal where the Supreme Court rules twice—fast and slow—in high-profile cases: the risk that its final decisions will increasingly be seen as post hoc rationalizations of judicial hot takes.
It should help that a ruling on the emergency docket is supposed to differ in fundamental ways from a final decision on the merits. It’s not just faster. It’s a “different animal,” officially: The purpose is different. The considerations are different. And the shelf life is different, because an interim order evaporates as soon as the case is over.
These contrasts, however, also raise the stakes for disentangling these two judicial functions not only in theory but also in action. Whether the Supreme Court will manage to do so remains to be seen.
In the period ahead, here are things to watch for: First, how forcefully will the Supreme Court disavow any influence from its interim orders when making its final decisions? An interim order is based partly on a short-term guess about the future result in the same case. So it must not become the very basis for that result. That would be circular, confirming the worst.
The short-term guess also doesn’t set legal precedent the way that a final decision does (called stare decisis). It might guide related guesses in other preliminary rulings (call it stare divinatis), but not final decisions needing a conclusive answer. Will the Supreme Court make this clear? Or will it muddle things more?
Most tellingly, how often will the Supreme Court make a final decision where a different side wins than in the interim phase? It’s happened before, as one should expect. Such a decision would come too late for those who suffered meanwhile. Yet everyone would know that its lasting impact—on the law, on future parties, and on our constitutional democracy—is not just the drawn-out echo of a hurried hunch.
The federal courts serve as our first responders in conflicts over constitutional rights and the separation of powers. They are called upon to react—fast—to legal challenges to governmental actions. To avert harm before it’s too late, they may rule within weeks, days, or even hours. They have done so in recent cases about free speech, freedom of the press, election law, independent agencies, federal workers, domestic troop deployments, spending and taxation, due process, search and seizure, and more.
The trial judges and appeals courts of the federal judiciary have long been tasked with this kind of rapid response. Lately, the Supreme Court has also joined the fray, intervening in high-profile cases through interim orders on its emergency docket.
Responding fast like this does not imply skipping over the slower, regular process for deciding a case. When trial judges issue preliminary injunctions, or when the Supreme Court issues interim orders, the whole point is to buy time for the courts to examine the case with more care before making final decisions about the facts or the law. The fast-track ruling is only meant to set a temporary holding pattern while the case continues along the slower track. So the court is not judging fast instead of judging slow. In principle, it will be doing both—judging fast and slow—in the very same case.
In the lower federal courts, this two-stage process is tried and true. But the Supreme Court’s spiraling use of it has been disconcerting, drawing heavy criticism even among the Justices. And it has upended how we think the judicial branch works: What does it mean when the same court that traditionally waits to have the last word is now also jumping in as a first responder?
So far, the Supreme Court’s muddled double role has been confounding for the public and disorienting for other federal judges, threatening both the cohesion and the credibility of the judicial branch. The need for clarity will only grow, as high-profile cases that the Supreme Court addressed earlier in an interim order (judging fast) start to come back for a final decision (judging slow). Seeing this, people may fairly wonder: If the Supreme Court is only now deciding the legal issues for real, then what was it doing the first time around? And what, really, will be different this second time around?
These questions point to a further hazard of a new normal where the Supreme Court rules twice—fast and slow—in high-profile cases: the risk that its final decisions will increasingly be seen as post hoc rationalizations of judicial hot takes.
It should help that a ruling on the emergency docket is supposed to differ in fundamental ways from a final decision on the merits. It’s not just faster. It’s a “different animal,” officially: The purpose is different. The considerations are different. And the shelf life is different, because an interim order evaporates as soon as the case is over.
These contrasts, however, also raise the stakes for disentangling these two judicial functions not only in theory but also in action. Whether the Supreme Court will manage to do so remains to be seen.
In the period ahead, here are things to watch for: First, how forcefully will the Supreme Court disavow any influence from its interim orders when making its final decisions? An interim order is based partly on a short-term guess about the future result in the same case. So it must not become the very basis for that result. That would be circular, confirming the worst.
The short-term guess also doesn’t set legal precedent the way that a final decision does (called stare decisis). It might guide related guesses in other preliminary rulings (call it stare divinatis), but not final decisions needing a conclusive answer. Will the Supreme Court make this clear? Or will it muddle things more?
Most tellingly, how often will the Supreme Court make a final decision where a different side wins than in the interim phase? It’s happened before, as one should expect. Such a decision would come too late for those who suffered meanwhile. Yet everyone would know that its lasting impact—on the law, on future parties, and on our constitutional democracy—is not just the drawn-out echo of a hurried hunch.
The federal courts serve as our first responders in conflicts over constitutional rights and the separation of powers. They are called upon to react—fast—to legal challenges to governmental actions. To avert harm before it’s too late, they may rule within weeks, days, or even hours. They have done so in recent cases about free speech, freedom of the press, election law, independent agencies, federal workers, domestic troop deployments, spending and taxation, due process, search and seizure, and more.
The trial judges and appeals courts of the federal judiciary have long been tasked with this kind of rapid response. Lately, the Supreme Court has also joined the fray, intervening in high-profile cases through interim orders on its emergency docket.
Responding fast like this does not imply skipping over the slower, regular process for deciding a case. When trial judges issue preliminary injunctions, or when the Supreme Court issues interim orders, the whole point is to buy time for the courts to examine the case with more care before making final decisions about the facts or the law. The fast-track ruling is only meant to set a temporary holding pattern while the case continues along the slower track. So the court is not judging fast instead of judging slow. In principle, it will be doing both—judging fast and slow—in the very same case.
In the lower federal courts, this two-stage process is tried and true. But the Supreme Court’s spiraling use of it has been disconcerting, drawing heavy criticism even among the Justices. And it has upended how we think the judicial branch works: What does it mean when the same court that traditionally waits to have the last word is now also jumping in as a first responder?
So far, the Supreme Court’s muddled double role has been confounding for the public and disorienting for other federal judges, threatening both the cohesion and the credibility of the judicial branch. The need for clarity will only grow, as high-profile cases that the Supreme Court addressed earlier in an interim order (judging fast) start to come back for a final decision (judging slow). Seeing this, people may fairly wonder: If the Supreme Court is only now deciding the legal issues for real, then what was it doing the first time around? And what, really, will be different this second time around?
These questions point to a further hazard of a new normal where the Supreme Court rules twice—fast and slow—in high-profile cases: the risk that its final decisions will increasingly be seen as post hoc rationalizations of judicial hot takes.
It should help that a ruling on the emergency docket is supposed to differ in fundamental ways from a final decision on the merits. It’s not just faster. It’s a “different animal,” officially: The purpose is different. The considerations are different. And the shelf life is different, because an interim order evaporates as soon as the case is over.
These contrasts, however, also raise the stakes for disentangling these two judicial functions not only in theory but also in action. Whether the Supreme Court will manage to do so remains to be seen.
In the period ahead, here are things to watch for: First, how forcefully will the Supreme Court disavow any influence from its interim orders when making its final decisions? An interim order is based partly on a short-term guess about the future result in the same case. So it must not become the very basis for that result. That would be circular, confirming the worst.
The short-term guess also doesn’t set legal precedent the way that a final decision does (called stare decisis). It might guide related guesses in other preliminary rulings (call it stare divinatis), but not final decisions needing a conclusive answer. Will the Supreme Court make this clear? Or will it muddle things more?
Most tellingly, how often will the Supreme Court make a final decision where a different side wins than in the interim phase? It’s happened before, as one should expect. Such a decision would come too late for those who suffered meanwhile. Yet everyone would know that its lasting impact—on the law, on future parties, and on our constitutional democracy—is not just the drawn-out echo of a hurried hunch.
The federal courts serve as our first responders in conflicts over constitutional rights and the separation of powers. They are called upon to react—fast—to legal challenges to governmental actions. To avert harm before it’s too late, they may rule within weeks, days, or even hours. They have done so in recent cases about free speech, freedom of the press, election law, independent agencies, federal workers, domestic troop deployments, spending and taxation, due process, search and seizure, and more.
The trial judges and appeals courts of the federal judiciary have long been tasked with this kind of rapid response. Lately, the Supreme Court has also joined the fray, intervening in high-profile cases through interim orders on its emergency docket.
Responding fast like this does not imply skipping over the slower, regular process for deciding a case. When trial judges issue preliminary injunctions, or when the Supreme Court issues interim orders, the whole point is to buy time for the courts to examine the case with more care before making final decisions about the facts or the law. The fast-track ruling is only meant to set a temporary holding pattern while the case continues along the slower track. So the court is not judging fast instead of judging slow. In principle, it will be doing both—judging fast and slow—in the very same case.
In the lower federal courts, this two-stage process is tried and true. But the Supreme Court’s spiraling use of it has been disconcerting, drawing heavy criticism even among the Justices. And it has upended how we think the judicial branch works: What does it mean when the same court that traditionally waits to have the last word is now also jumping in as a first responder?
So far, the Supreme Court’s muddled double role has been confounding for the public and disorienting for other federal judges, threatening both the cohesion and the credibility of the judicial branch. The need for clarity will only grow, as high-profile cases that the Supreme Court addressed earlier in an interim order (judging fast) start to come back for a final decision (judging slow). Seeing this, people may fairly wonder: If the Supreme Court is only now deciding the legal issues for real, then what was it doing the first time around? And what, really, will be different this second time around?
These questions point to a further hazard of a new normal where the Supreme Court rules twice—fast and slow—in high-profile cases: the risk that its final decisions will increasingly be seen as post hoc rationalizations of judicial hot takes.
It should help that a ruling on the emergency docket is supposed to differ in fundamental ways from a final decision on the merits. It’s not just faster. It’s a “different animal,” officially: The purpose is different. The considerations are different. And the shelf life is different, because an interim order evaporates as soon as the case is over.
These contrasts, however, also raise the stakes for disentangling these two judicial functions not only in theory but also in action. Whether the Supreme Court will manage to do so remains to be seen.
In the period ahead, here are things to watch for: First, how forcefully will the Supreme Court disavow any influence from its interim orders when making its final decisions? An interim order is based partly on a short-term guess about the future result in the same case. So it must not become the very basis for that result. That would be circular, confirming the worst.
The short-term guess also doesn’t set legal precedent the way that a final decision does (called stare decisis). It might guide related guesses in other preliminary rulings (call it stare divinatis), but not final decisions needing a conclusive answer. Will the Supreme Court make this clear? Or will it muddle things more?
Most tellingly, how often will the Supreme Court make a final decision where a different side wins than in the interim phase? It’s happened before, as one should expect. Such a decision would come too late for those who suffered meanwhile. Yet everyone would know that its lasting impact—on the law, on future parties, and on our constitutional democracy—is not just the drawn-out echo of a hurried hunch.
The federal courts serve as our first responders in conflicts over constitutional rights and the separation of powers. They are called upon to react—fast—to legal challenges to governmental actions. To avert harm before it’s too late, they may rule within weeks, days, or even hours. They have done so in recent cases about free speech, freedom of the press, election law, independent agencies, federal workers, domestic troop deployments, spending and taxation, due process, search and seizure, and more.
The trial judges and appeals courts of the federal judiciary have long been tasked with this kind of rapid response. Lately, the Supreme Court has also joined the fray, intervening in high-profile cases through interim orders on its emergency docket.
Responding fast like this does not imply skipping over the slower, regular process for deciding a case. When trial judges issue preliminary injunctions, or when the Supreme Court issues interim orders, the whole point is to buy time for the courts to examine the case with more care before making final decisions about the facts or the law. The fast-track ruling is only meant to set a temporary holding pattern while the case continues along the slower track. So the court is not judging fast instead of judging slow. In principle, it will be doing both—judging fast and slow—in the very same case.
In the lower federal courts, this two-stage process is tried and true. But the Supreme Court’s spiraling use of it has been disconcerting, drawing heavy criticism even among the Justices. And it has upended how we think the judicial branch works: What does it mean when the same court that traditionally waits to have the last word is now also jumping in as a first responder?
So far, the Supreme Court’s muddled double role has been confounding for the public and disorienting for other federal judges, threatening both the cohesion and the credibility of the judicial branch. The need for clarity will only grow, as high-profile cases that the Supreme Court addressed earlier in an interim order (judging fast) start to come back for a final decision (judging slow). Seeing this, people may fairly wonder: If the Supreme Court is only now deciding the legal issues for real, then what was it doing the first time around? And what, really, will be different this second time around?
These questions point to a further hazard of a new normal where the Supreme Court rules twice—fast and slow—in high-profile cases: the risk that its final decisions will increasingly be seen as post hoc rationalizations of judicial hot takes.
It should help that a ruling on the emergency docket is supposed to differ in fundamental ways from a final decision on the merits. It’s not just faster. It’s a “different animal,” officially: The purpose is different. The considerations are different. And the shelf life is different, because an interim order evaporates as soon as the case is over.
These contrasts, however, also raise the stakes for disentangling these two judicial functions not only in theory but also in action. Whether the Supreme Court will manage to do so remains to be seen.
In the period ahead, here are things to watch for: First, how forcefully will the Supreme Court disavow any influence from its interim orders when making its final decisions? An interim order is based partly on a short-term guess about the future result in the same case. So it must not become the very basis for that result. That would be circular, confirming the worst.
The short-term guess also doesn’t set legal precedent the way that a final decision does (called stare decisis). It might guide related guesses in other preliminary rulings (call it stare divinatis), but not final decisions needing a conclusive answer. Will the Supreme Court make this clear? Or will it muddle things more?
Most tellingly, how often will the Supreme Court make a final decision where a different side wins than in the interim phase? It’s happened before, as one should expect. Such a decision would come too late for those who suffered meanwhile. Yet everyone would know that its lasting impact—on the law, on future parties, and on our constitutional democracy—is not just the drawn-out echo of a hurried hunch.
About the Author
Bert I. Huang
Bert I. Huang is the Harold R. Medina Professor of Procedural Jurisprudence at Columbia University, where he has been recognized for excellence in teaching. He has served on the Presidential Commission on the Supreme Court of the United States and on the advisory committee on appellate rules for the Judicial Conference of the United States.
About the Author
Bert I. Huang
Bert I. Huang is the Harold R. Medina Professor of Procedural Jurisprudence at Columbia University, where he has been recognized for excellence in teaching. He has served on the Presidential Commission on the Supreme Court of the United States and on the advisory committee on appellate rules for the Judicial Conference of the United States.
About the Author
Bert I. Huang
Bert I. Huang is the Harold R. Medina Professor of Procedural Jurisprudence at Columbia University, where he has been recognized for excellence in teaching. He has served on the Presidential Commission on the Supreme Court of the United States and on the advisory committee on appellate rules for the Judicial Conference of the United States.
About the Author
Bert I. Huang
Bert I. Huang is the Harold R. Medina Professor of Procedural Jurisprudence at Columbia University, where he has been recognized for excellence in teaching. He has served on the Presidential Commission on the Supreme Court of the United States and on the advisory committee on appellate rules for the Judicial Conference of the United States.
About the Author
Bert I. Huang
Bert I. Huang is the Harold R. Medina Professor of Procedural Jurisprudence at Columbia University, where he has been recognized for excellence in teaching. He has served on the Presidential Commission on the Supreme Court of the United States and on the advisory committee on appellate rules for the Judicial Conference of the United States.
About the Author
Bert I. Huang
Bert I. Huang is the Harold R. Medina Professor of Procedural Jurisprudence at Columbia University, where he has been recognized for excellence in teaching. He has served on the Presidential Commission on the Supreme Court of the United States and on the advisory committee on appellate rules for the Judicial Conference of the United States.
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