The Supreme Court’s emergency docket is seeing new life.
After a lull in activity, requests for quick action on redistricting, abortion and Big Tech have landed on the justices’ desks.
It’s dominating the agenda as decision season fast approaches for the Supreme Court’s normal docket, a time the justices typically spend working on drafting those opinions.
Here are some big cases to watch.
Louisiana’s congressional map
Last week’s blockbuster Supreme Court decision abating a central Voting Rights Act provision struck down Louisiana’s congressional map. But it left questions as to whether the state had time to redistrict before the midterms.
A massive emergency docket battle was rapidly born, leaving Justice Samuel Alito and Justice Ketanji Brown Jackson locking horns.
On Monday night, Alito and the majority agreed to forego the Supreme Court’s normal 32-day wait before formally releasing a case upon handing down the opinion – in essence, speeding up the process to send the case back to the lower court. In legalese, that final step is called “sending down the judgment.”
Normally, no one bats an eye. The wait just gives the losing side time to ask the justices to rehear the case. (The last time we’re aware of the court agreeing to do so was 1965, but if you know of a more recent time, we’re all ears: email us!)
But in Louisiana, time was of the essence. Overseas ballots were already going out for the primary.
With state Republicans wanting to redistrict immediately, the high court agreed to speed things up.
It left Jackson fuming.
In a four-page solo dissent, the junior liberal justice said the majority “unshackles itself” so that its “principles give way to power.”
“To avoid the appearance of partiality here, we could, as per usual, opt to stay on the sidelines and take no position by applying our default procedures,” she wrote.
No other justice joined her.
Alito, joined by Justices Clarence Thomas and Neil Gorsuch, felt compelled to respond in remarkable terms. The conservative justices called Jackson’s argument a “groundless and utterly irresponsible charge.”
“The dissent offers two reasons for its proposed course of action. One is trivial at best, and the other is baseless and insulting,” Alito wrote.
The order removes a potential roadblock to Louisiana Republicans’ plans to immediately redraw their map and potentially give the party a pickup opportunity for the midterms.
Separate lawsuits challenging Louisiana’s primary delay remain in the lower courts, but even civil rights groups acknowledged the inevitability of the Supreme Court’s influence.
“How the Supreme Court behaves is definitely relevant in this circumstance,” Sarah Brannon, deputy director of the American Civil Liberties Union’s Voting Rights Project, told reporters ahead of the justices’ emergency order.
She declined to say if the group would drop its case following the justices’ intervention.
“I think it's fair to say, I don't think this is a confidential or sophisticated legal opinion, that the Supreme Court has made a mess and let a mess run amok.”
Mail-order abortion pill
Louisiana’s big Monday at the Supreme Court wasn’t just on redistricting.
Hours earlier, Alito intervened in a new emergency case over the state’s lawsuit concerning mifepristone, one of two pills used in medication abortion.
It has become one of the prominent legal battlefronts on abortion after the Supreme Court overturned Roe v. Wade.
The Supreme Court fight was sparked by a Friday opinion from the U.S. Court of Appeals for the 5th Circuit. It agreed to Louisiana’s request to block a Biden-era regulation that allows mifepristone to be prescribed through telehealth, the mail and in pharmacies.
Over the weekend, brand-name manufacturer Danco Laboratories and generic maker GenBioPro raced to the Supreme Court.
Alito has paused the ruling for one week as the court takes a look.
It’s called an “administrative stay” and is not an indication of how the case will shake out. Alito handles emergency matters arising from the 5th Circuit by default, and major cases are ultimately often referred to the full court for a vote.
Danco has warned an emergency intervention is needed to alleviate the “immediate uncertainty, with no transition period and no practical guidance.”
It also has a dramatic, alternate suggestion.
Rather than sending the case back to the 5th Circuit, Danco suggested the justices could leapfrog the lower court and take up the case on their normal docket to resolve the issues fast.
It’s a big ask. Danco proposed the justices could convene a special argument session to hear the case and race to write a full-fledged, final opinion on a hot-button issue before their summer recess begins in July.
That’s quite a contrast from the Supreme Court lawyers we told you about last week, who joked about the justices’ disappearing time window as they argued some of the final regularly scheduled cases.
Alito’s timetable sets up some potential action in a matter of days. Look out for a ruling between when Louisiana submits its written response on Thursday afternoon and Monday at 5 p.m. EDT, when Alito’s one-week pause expires.
Apple’s contempt fight
Apple added to the pileup on Monday by bringing its dispute with Epic Games to the justices’ emergency docket.
For years, the Fortnite developer has battled with the iPhone maker over antitrust accusations concerning its in-app payment processing. Apple earns a 30 percent cut and hoped to make it the exclusive system for its millions of users.
A judge ruled against most of Epic’s claims. But the judge did issue an injunction requiring Apple to allow developers to offer external payment systems for users.
Now at the center of the battle is Apple’s up-to-27-percent commission on those external purchases. Lower courts found the company in contempt of the ruling.
Without the Supreme Court’s intervention, a judge is set to soon mull what percentage the tech giant can legally charge. Apple says it shouldn’t have to fight that battle until after it finishes appealing the contempt finding.
“A stay is now needed before Apple is forced to litigate its commission rate under an erroneous and prejudicial contempt label—in proceedings that could reshape the global app market,” Apple wrote in its emergency appeal.
Like the abortion battle, Apple has alternatively suggested the Supreme Court could move the case from their emergency to normal docket to resolve the issues with finality. Apple isn’t going full-tilt boogie like the abortion pill manufacturer, however; it seems fine with letting the case spill into next term.
There are two issues for the justices to decide, Apple says.
Contempt standard: Apple notes the injunction never mentioned the word “commission.” Lower courts said the company could still be held in contempt because it violated the “spirit” of the injunction. Apple says the Supreme Court should rebuke that looser standard.
Universal injunctions: Last summer, the Supreme Court clawed back federal judges’ ability to issue universal injunctions that provide relief to anyone, even those who haven’t sued or part of a class-action. Apple says the judge here violated that rule by applying the injunction against all developers worldwide, not just Fortnite.
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