Federal Courts May Be Able To Receive Filings 24/7, But There Is No Expectation To Review Unanticipated Filings Overnight

In Trump v. CASA, Justice Kavanaugh extolled the power of the Supreme Court as a supreme institution. In the process, he took a not-so-subtle shot at the inferior courts:

But district courts and courts of appeals are likewise not perfectly equipped to make expedited preliminary judgments on important matters of this kind. Yet they have to do so, and so do we. By law, federal courts are open and can receive and review applications for relief 24/7/365. See 28 U. S. C. §452 (“All courts of the United States shall be deemed always open for the purpose of filing proper papers . . . and making motions and orders”).

When I read this passage, I suspected it was a response to Judge Ho’s concurrence in AARP v. Trump. Jon Adler read it the same way.

I first saw this statutory argument made by Adam Unikowsky. But I’m not sure it works.

First, as a threshold matter, the statute is limited to filing papers, not for the court to review or rule on those papers. Congress has established the Civil Justice Reform Act which tracks how many motions are pending for longer than six months. But there is no congressional deadline to actually decide cases.

Second, we should determine the original meaning of the statute when it was enacted. A version of this statute was passed back in 1948 (62 Stat. 907). Another version was passed in 1963 (77 Stat. 248). At either time, it would have been impossible to file papers overnight, unless special arrangements were made to keep the clerk’s office open. There were no cell-phones, emails, or faxes. Even to this day, the Supreme Court closes in the evening according to the building regulation one. I don’t think a pro se litigant can walk up to the Supreme Court a midnight an hand a brief to a Supreme Court police officer.

Thankfully, ECF allows late-night filings. But again, unless there is some way that judges are to be notified that important filings will be made overnight, there can be no expectation that judges can review those filings. Surgeons will keep pagers to alert them about emergency procedures. But Judges do not wear pagers that alert when a TRO is filed.

I will repeat the facts in AARP as many times as needed. The ACLU made a filing after midnight, and there was no notice in advance when the filing would made. There is no reasonable expectation that a judge will sit at his computer all night in anticipation of a possible filing. Judge Hendrix began to resolve the motion the next morning. Yet, the Supreme Court charged him with failing to respond to a motion filed overnight while he was sleeping. Facts are stubborn things.

Third, the Supreme Court has proven that it does not review emergency applications in a timely fashion. Justice Jackson let the emergency application in Libby v. Fectau sit several days without calling for a response.  Eventually she called for a response, and the Court ultimately granted the application. Other justices have taken time to call for responses. Judge Hendrix’s prompt attention was admirable. Justice Jackson’s dilatory tactics were questionable. Even then, the Court can still sit on emergency petitions for weeks at a time.

Justice Kavanaugh observed:

On top of that, this Court has nine Justices, each of whom can (and does) consult and deliberate with the other eight to help the Court determine the best answer, unlike a smaller three-judge court of appeals panel or one-judge district court.

Whatever the timeline is for a single district court judge with a busy docket to rule, the timeline should be accelerated for nine Supreme Court Justices with a full complement of law clerks to decide.

I realize the thrust of CASA is that different rules apply to lower courts than to the Supreme Court. But if the Supreme Court wants to rebuke lower courts for not acting promptly enough, the Justices should police their own conduct.

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