Introduction
The U.S. Supreme Court regularly insists that it is “a court of review, not of first view.”1 This sentiment, which has been invoked dozens of times in the last decade alone, is usually deployed as justification for the Court’s refusal to consider arguments not raised by the parties in the lower courts;2 questions not answered by the lower courts;3 new issues that have arisen only as a result of what the Justices have held in the case at hand;4 or taking up a discretionary appeal in the first place.5 Among other things, the logic goes, such restraint insulates the Justices from unnecessarily resolving legally or politically fraught questions — all while conserving their finite resources for those issues that are, at least in their view, truly ripe for consideration.6
Historically, the “court of review” mantra has been more than just a post hoc rationalization for kicking cans down the road; at its most well theorized, it has also been defended as vindicating two deeper principles relating to the Court’s function. The first involves the constitutional and statutory role of the Court — which is, as Justice Harlan explained in a 1971 majority opinion, primarily to serve as an appellate tribunal, hearing and resolving only those disputes that have been fully and fairly fleshed out below.7
The second is the related but distinct idea that reserving any decision until the underlying factual and legal issues have been exhaustively vetted by lower courts tends to raise the quality of the Justices’ decisionmaking, too. As Justice Ginsburg once put it, “when frontier legal problems are presented, periods of ‘percolation’ in, and diverse opinions from, state and federal appellate courts may yield a better informed and more enduring final pronouncement by this Court.”8 Justice Gorsuch recently echoed this theme, noting that “the crucible of adversarial testing on which we usually depend, along with the experience of our thoughtful colleagues on the district and circuit benches, could yield insights (or reveal pitfalls) we cannot muster guided only by our own lights.”9 In other words, the Supreme Court is not good at going first, and whether that is better understood as the cause or the effect, it is not supposed to go first.
And yet, even as the Court has continued to regularly invoke the “court of review” mantra in recent years, its behavior has increasingly departed from it. Consider Biden v. Nebraska10 — the June 2023 decision invalidating President Biden’s student loan debt forgiveness program on the ground that it was not authorized by the HEROES Act of 2003.11 In the lower court proceedings leading up to the Supreme Court’s review, that important and disputed question of statutory interpretation had received exactly one word of analysis. The district court (which had denied a preliminary injunction and dismissed the suit after concluding that the plaintiff States lacked Article III standing) said nothing at all about the statutory basis for the program;12 and the Eighth Circuit (which granted an emergency nationwide injunction pending appeal based mostly on disagreement with the district court’s standing analysis) noted only that the statutory interpretation question was “substantial.”13
Biden v. Nebraska may be an especially pointed example, but it is hardly alone. Even as the total number of cases the Supreme Court is deciding after plenary review has declined (significantly) in recent Terms, the number of cases in which the Court is reaching and resolving the merits in some kind of preliminary procedural posture has grown — in absolute terms and, thus, in even more significant proportional terms.14
Three categories, in particular, stand out.15 First, the Court is reaching the merits on appeals from the grant or denial of a preliminary injunction with far more regularity — a practice it has previously suggested is (and ought to be) rare.16 Second, it is granting “certiorari before judgment”17 (bypassing the federal courts of appeals to hear appeals directly from U.S. district courts) more often than ever before — also a practice that, on the Justices’ own telling, is supposed to be “an extremely rare occurrence.”18 Third, it is addressing the merits in resolving applications for emergency relief both more often, and in disputes that have broader statewide or nationwide impacts, than at any prior point in the Court’s history — in contexts in which, by both tradition and settled doctrine, it is supposed to only balance the equities.19
During the October 2022 Term, for instance, five of the Court’s fifty-eight “opinions of the Court” came through one of these truncated processes.20 There were eight such decisions during the Court’s October 2021 Term;21 and six during the October 2020 Term.22 In contrast, there were no such rulings as recently as the October 2016 Term. The October 2017 and October 2018 Terms each had one such ruling.23 And there were three during the October 2019 Term.24 Although the difference between the low and high single-digits may not seem noteworthy at first blush, this uptick is coming at the same time as the total annual number of decisions after plenary review from the Court has fallen from the mid-eighties as recently as a decade ago to below sixty — a floor the Court had not previously dipped below since the Civil War.25 Against that backdrop, the difference between one ruling in a preliminary procedural posture and eight is the difference between less than two percent of the Court’s merits docket and as much as fifteen percent of it.
Nor are these decisions coming in a randomly distributed subset of the Court’s plenary dispositions. The five October 2022 Term decisions in accelerated procedural postures would have topped anyone’s list of the most significant rulings of the Term — including both student loan cases;26 the affirmative action ruling;27 both cases consolidated into the single decision in the Alabama redistricting dispute;28 and Texas’s challenge to the Biden Administration’s immigration enforcement priorities.29 The same can be said for almost all of the accelerated decisions in the October 2020 and October 2021 Terms, as well. The Court is thus not just reaching the merits at very early stages of a growing percentage of cases resolved through opinions of the Court; it is doing so in many of its biggest and most legally and/or politically consequential decisions. However one considers these developments, then, the most basic point is that we ought to consider them.30
The first goal of this Article is to do exactly that — to describe and document these developments so that, at the very least, they are out in the open. For better or worse, law professors (and, to a lesser degree, political scientists) have gotten out of the habit of assessing the Court’s docket on such a holistic basis — focusing instead on specific doctrinal or methodological developments in particular substantive areas of the Justices’ workload. I have criticized this homogenous focus elsewhere and won’t belabor the point here.31 But it does not take especially careful scrutiny to see fairly significant shifts in at least some aspects of the cases the Supreme Court is deciding — including the three categories on which this Article focuses.32 Thus, Part I introduces each of these classes of disputes and then documents how they have recently become a more significant part of the Court’s docket, in both absolute and relative terms.
Part II offers a normative critique of these developments. Accepting that there will always be some subset of cases in which the Justices are called upon — and feel impelled — to short-circuit ordinary judicial processes, Part II sketches out some of the costs, to both the Supreme Court and the legal system more generally, of having the Justices engage in what is supposed to be extraordinary review on an increasingly ordinary basis. Some of those critiques sound in legal considerations — including difficult questions about the constitutional line between the Court’s original and appellate jurisdiction; confusion over the precise nature of (and standard for) the review that the Justices are supposed to be conducting in these postures; and inconsistency when it comes to the relevance vel non of factual findings made by lower courts to the Court’s nonfinal appellate review.
But some of the critiques are more prudential — including the hypothetical nature of at least some of the questions the Justices end up deciding; the need to rely upon extra-record evidence and arguments when the record below is so spare; the appearance of jumping the gun to reach high-profile issues; the inconsistency with respect to which cases receive such treatment and which do not; the risk that the Court is expending resources better directed elsewhere; and the extent to which this behavior suggests that the “court of review” mentality is applied with increasingly subjective — if not incoherent — selectivity. Looking beyond the Supreme Court itself, the Justices’ willingness to reach out to decide early-stage merits questions (and their disregard for statutory and prudential limits on their authority to do so) necessarily invites similar aggressiveness by lower courts, even though the federal appeals courts, at least, are supposed to be guided by the same considerations strongly disfavoring (and in some cases prohibiting) interlocutory appellate review.33
To suggest that these developments are a problem is not to suggest that the Supreme Court is wholly responsible for it. Instead, Part III opens by considering what might be causing the developments identified and critiqued in Parts I and II, before pivoting to how the Justices (and, indeed, Congress) both could and should take steps to reduce the incidence of such cases and mitigate the costs of having so many preliminary-stage decisions on the Court’s docket. Using the examples of cases from the last few Terms, Part III suggests that, while some of the Court’s behavior can be traced to the proliferation of “nationwide injunctions,” much of it can’t be. Instead, a meaningful subset of these interventions can be attributed to a combination of (1) doctrinal shifts and litigation behavior that have made it easier for broad-based challenges to new state and federal policies to be quickly directed to sympathetic district judges; and (2) unwillingness on the part of particular courts of appeals to push back against those rulings — which in turn exerts significant pressure on the Justices to intervene quickly. And, perhaps predictably, as criticism of the Justices’ growing use of emergency applications to address at least some of these cases has grown, the Court has gravitated toward other means of expediting its plenary consideration of the underlying issues — without pausing to consider whether there are good reasons why those other means have historically been, and are supposed to be, “rare.”34
But even though the Justices may not be directly responsible for such behavior by lower courts, they are hardly powerless to do anything about it. To the contrary, as Part III concludes, there are any number of ways to reduce the number of cases in which the Justices might feel compelled to step in at such a preliminary posture — so long as the Justices or Congress (or both) believe that such a reduction is worthwhile. Some of those reforms can come from the Court’s bully pulpit, its holdings, and its behavior; some can come from Congress. The first step, though, is to acknowledge that this is a problem worth a solution.
There is nothing inherently “conservative” about a Court that is deciding a greater number of cases in a preliminary procedural posture — just as there is nothing inherently “liberal” about a preference for more finality below before exercising appellate review. Nor is there a necessary correlation between the bottom lines the Justices are reaching in the cases coming to them in these truncated forms and the current ideological division of the Court; as the October 2022 Term suggests, these cases are not uniformly dividing the Justices into their usual, ideological camps. Rather, the critique offered in this Article is about the institutional costs of the Court’s behavior — costs that the Justices would do well at the very least to acknowledge, if not also to seek to ameliorate.
But whatever (or whoever) is responsible for these developments, and however they might be addressed, the critical takeaway for present purposes is that there has been a quietly significant shift in the last few Terms not just in the shape of the Supreme Court’s docket, but in the nature of the Justices’ decisionmaking. Reasonable minds may well disagree about both the causes and costs of that shift — and perhaps even whether these developments in the main are a feature or a bug. The point on which there ought to be consensus, though, is that the Court is increasingly (if inconsistently) a court of first view — and that, so long as that remains true, it will have a series of downstream (and understudied) effects that go beyond simply undermining the Justices’ regular insistence to the contrary.