Page:EO 14023 Commission Final Report.pdf/209



Many people associate the work of the Supreme Court with its “merits cases.” These are cases in which the Court grants review and the parties then conduct established rounds of briefing and participate in oral argument. The Court may also receive briefs from interested non-parties called amici curiae. In these cases, the Court eventually issues a decision with a reasoned, written opinion and discloses the votes of all Justices. These robust procedures are intended to ensure that the Court’s decisions are well informed, fair to the parties, and attentive to implications for the broader legal system. The opinions in these merits cases generally carry the full weight of precedent and thus are written in a manner that not only binds lower courts but also aspires to guide them, all while limiting the likelihood that the Court will dramatically change its own positions in the near future.

Yet the Court’s business goes beyond its merits cases. As the Court explains on its website, the “vast majority of cases filed in the Supreme Court are disposed of summarily by unsigned orders.” The most common orders—there are thousands of these each year—are those in which the Court declines to review cases by denying the parties’ petitions for certiorari.

In another category of unsigned orders, the Court responds to parties’ emergency requests by issuing an injunction, vacating a lower court’s injunction, granting or lifting a stay of a lower court ruling, or denying such emergency relief. Because these emergency orders often concern legal challenges to governmental decisions and practices, they can have substantial effects on the rights and obligations of governments, private institutions, and broad segments of the American public.

In contrast to its merits cases, however, the Court issues emergency orders without the same regularized rounds of full briefing, amicus participation, and oral argument; without much time for deliberation; often without a written opinion speaking for the Court and explaining its reasoning; and often without disclosing how each of the Justices voted. Many of these orders respond to requests from parties in the early stages of litigation and thus are issued before the lower courts have completed their adjudication and appellate review of the case.

The Court’s use of various truncated procedures has at times attracted public scrutiny. Beginning in the 1950s, some commentators criticized its use of summary decisions on grounds of procedural inadequacy and lack of guidance for the lower courts. Others argued