Supreme Court's ‘10th justice’ favors unusual tactic for Trump cases

Over the past year, the federal government’s lead Supreme Court litigator has repeatedly attempted to expedite Trump administration cases by using an unorthodox maneuver, one that legal experts say is rarely successful.

Solicitor General Noel Francisco has requested on eight separate occasions, twice in the same case, that justices bypass a regional federal appeals court and instead review a ruling by a lower district court.

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Those requests, known as petitions for a writ of certiorari before judgment, stemmed from challenges to President TrumpDonald John TrumpGillibrand backs federal classification of third gender: report Former Carter pollster, Bannon ally Patrick Caddell dies at 68 Heather Nauert withdraws her name from consideration for UN Ambassador job MORE’s restrictions on transgender people serving in the military, its decision to wind down the Deferred Action for Childhood Arrivals (DACA) program and its move to add a citizenship question to the 2020 census.

Court watchers say that in addition to being unusual, the strategy to leapfrog normal judicial order is aggressive and may undermine the solicitor general’s credibility with the justices. Legal scholars also fear that Francisco may be forcing the court to wade into political disputes before they are ready, a move that could make the public view the court as just another political institution.

“I can tell you, seeking cert. before judgment in the lower court is quite rare, and the court taking cert. before judgement in the court of appeals is even rarer,” said Brian Wolfman, a professor at Georgetown Law.

The solicitor general is employed by the Justice Department and often referred to to as the "10th justice," because they have the dual responsibility of serving the executive branch as a key advocate and helping the court as a kind of counselor develop the law that reflects the country’s long-term interests.

The court often asks for the solicitor general's views in cases where the federal government is not a party, and often allows the solicitor general to participate in oral arguments as what’s known as a friend of the court.

The justices grant and hear oral arguments in only 80 or so cases out of the 7,000 to 8,000 petitions they receive during each nine-month term. They prefer to see the rulings from appeals courts before taking up a case, and competing views by regional circuit courts is typically a prerequisite for review at the Supreme Court.

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Only four justices need to agree to take up a case for it to be heard by the Supreme Court, and Trump has shifted the balance of the court to the right with the successful nominations of Justices Neil Gorsuch and Brett KavanaughBrett Michael KavanaughConstitutional conservatives need to oppose the national emergency Kavanaugh shows his stripes on Supreme Court's 'shadow docket' Ginsburg back at Supreme Court MORE.

But Trump hasn’t had a winning record at the appellate level, with the California-based 9th Circuit being a particular annoyance for the president.

"You cannot win if you’re us, a case in the 9th Circuit, and I think it’s a disgrace when people file, every case gets filed in the 9th Circuit," he said in November after a federal district court judge in California blocked his administration’s effort to prevent people who cross the border illegally from seeking asylum.

That case was appealed to the 9th Circuit, which upheld the lower court’s ruling.

That appellate court was one that Francisco asked the Supreme Court to skip over to review the injunction against the transgender military restrictions and the lawfulness of rescinding DACA.

“The solicitor general, as the chief advocate for the administration, clearly disagrees with some or all of these lower court decisions and may believe he is more likely to find a sympathetic audience in front of the Supreme Court,” said Joshua Matz, a constitutional law professor at Georgetown Law and publisher of the Take Care blog, which provides legal analysis of Trump’s constitutional duty to ensure laws are faithfully executed.

But is Francisco’s strategy paying off?

The justices last month refused to review whether district courts erred in blocking the administration from enforcing its restrictions on transgender military service. The appeals courts hadn’t weighed in yet, but the Supreme Court granted the administration’s emergency request to enforce its policy while the matter is being litigated.

Legal experts deemed that outcome a partial victory, adding that if the goal is to get something instead of nothing, Francisco’s tactics may be working.

“The court has found ways so far to split the difference,” said Stephen Vladeck, a professor at the University of Texas School of Law.

“I think it can be read both as not endorsing what the solicitor general is doing, but also not slapping him on the wrist,” he added.

The Justice Department declined to comment for this story.

The court has not taken action on the DACA disputes and likely won’t during this term, which will come to a close near the end of June. If the justices agree to take up those cases, arguments won’t be heard until the fall, delaying any potential ruling until 2020.

Experts, however, say the court could agree to hear the census case this term ahead of the 2nd Circuit Court of Appeals.

The justices initially agreed to hear arguments over whether Commerce Secretary Wilbur RossWilbur Louis RossSupreme Court to hear census citizenship case this term Hillicon Valley: Lawmakers press officials on 2020 election security | T-Mobile, Sprint execs defend merger before Congress | Officials charge alleged Iranian spy | Senate panel kicks off talks on data security bill Apple, IBM, Walmart join White House advisory board MORE can be forced to answer questions under oath about his decision to add the citizenship question to the decennial population count. But they later removed arguments from the court’s February calendar after a federal district court judge barred the Commerce Department from including the question.

Francisco then notified the justices that he plans to seek their review of the district court ruling ahead of any action by the 2nd Circuit Court. He also said he plans to ask for an expedited briefing to allow for oral arguments and a decision this term.

If the Supreme Court takes the case before the 2nd Circuit rules, it will be the first time in 15 years that the court has jumped an appeals court.

Vladeck said the Supreme Court hasn’t taken that step since 2004 in U.S. v. Fanfan, a case that challenged the constitutionality of federal sentencing guidelines. But the justices reviewed that case alongside a separate, similar dispute that had already gone through a review by the 7th Circuit Court of Appeals.

In his petitions to the court, Francisco acknowledges his requests are rare, but argues the court’s immediate intervention is necessary to promptly resolve these policy disputes.

“Even if a losing party were immediately to seek certiorari from a decision of one of the courts of appeals, this court would not be able to review that decision in the ordinary course until next term at the earliest,” he argued in one request for review of a lower court’s decision on DACA.

Francisco noted in his filings that the court made similar exceptions to resolve important and time-sensitive disputes in 1952, 1974 and 1981.

And the justices might agree that the circumstances surrounding the census case warrant this extraordinary action.

“In the census case there is a pure timing implication that creates an extraordinary circumstance unrelated to the merits,” said Vladeck.

The government has to finalize the census questionnaire by the end of June to make sure it is printed on time, Francisco said in one filing.

“There’s a really interesting and strange equipoise in how the justices have responded to this strategy so far,” Vladeck said. “I’m just not sure how it'll hold.”