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Supreme Court pre-empting appeals process to hear cases

The high court’s justices have been reluctant to address the partisan winds beating on their backs, but the evidence of the strain caused by these influences is beginning to show as the court turns an extraordinary measure into a more common occurrence.

“Monday’s grant was the 14th time the justices have granted cert before judgment since February 2019, after having gone more than 14 years without granting it once,” Steve Vladeck, a law professor at the University of Texas School of Law, wrote last week in an article for SCOTUSblog.

Vladeck was referring to the latest in a string of cases to go before the high court concerning race-based affirmative action in higher education.

Because the justices have full control over the cases they hear, the Supreme Court can bypass the normal appeals process when adding cases to its docket before lower courts have the chance to rule on them. While this practice used to be exceedingly rare, it is now becoming more commonplace.

Vladeck did not respond to requests for an interview on the topic but his article notes that the court granted certiorari before judgment only three times between 1988 and August 2004. After a period of 14 years in which the justices did not take up any cases before the lower courts had ruled, just the past three years have seen the justices grant 14 writs of certiorari for cases where there has not been a judgment.

There are some explanations for why the justices interfere before lower courts have the chance to rule. Sometimes the issues presented in a case may be too pressing for the long and arduous legal process that would inevitably land it on the court’s docket anyway. This was the case when the justices took up challenges to the most restrictive abortion ban in the country earlier this year.

Some of the uptick in cases can also be explained away as the court bundles cases together. The affirmative action case fits this bill. While the justices are taking a case about the University of North Carolina straight from the district court, they plan to consolidate arguments with another challenge to affirmative action at Harvard University that had gone through the normal appeals process.

Other cases — known as GVRs — are granted certiorari by the court, have their judgments vacated, and then sent back to the lower court for reconsideration in light of recent precedent. This offers a very strong nudge to the lower courts, but ultimately the case is sent back down to them instead of skipping over them.

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While all of these reasonings stand to explain circumstances that might be rife for the justices to wield their power to bypass lower courts, it doesn’t explain why cert-before-judgment cases are becoming more common now than they were for decades.

What could explain that increase is the increasingly partisan nature of the court.

“This is a sign of what's happening to the court,” Aziz Huq, a Frank and Bernice Greenberg professor of law at the University of Chicago, said in a phone call. “It's not that this is driving something. … What’s moving the court is partisan polarization not just of petitions but of constitutional law and the demand for the court to kind of step in, particularly from the right, which have the majority on the court to resolve questions on which the policy is polarized.”

Since 2019 — when the uptick in these cases started — the more conservative Justice Brett Kavanaugh replaced the swing vote of Anthony Kennedy giving the conservatives a majority on the court. This was then followed by the replacement of the late Justice Ruth Bader Ginsberg with Amy Coney Barrett in 2020, cementing the conservative supermajority.

The justices and litigants appealing to them are involved in a constant give and take. Litigants try to gauge what the court wants to do while the court can signal what issues it may be willing to tackle. Justice Clarence Thomas has been known to do this in many of his dissents.

The rise in cert-before-judgment cases demonstrates the growing impatience of both the litigants and the justices as they tee up issues for the court to take on.

“What you're seeing now is acceleration and impatience on both sides to tee up issues, oftentimes they’re kind of issues that are flashpoints of partisan controversy,” Huq said. “That acceleration, which I think is subtly coming out here … a way to think about that is that that is evidence for or a sign of the more general polarization of the politics and the partisan conflict reaching the court.”

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Affirmative action are among the issues the U.S. Supreme Court is wading into before a ruling is issued at the trial or appeals court.