Solicitor general uses ‘leapfrog’ strategy to hasten Supreme Court review of Trump agenda

February 11, 2019

Often referred to as the “10th justice,” President Donald Trump’s Supreme Court lawyer is using an “unusual” method to expedite his boss’ cases to the highest court.

Solicitor General Noel Francisco has attempted to “leapfrog” past federal appeals courts to get Trump’s policies on transgenders in the military, Deferred Action for Childhood Arrivals (DACA), and the citizenship question on the 2020 census before the highest court in the land as soon as possible.

Critics say that the maneuver is unusual and ineffective, but the Trump administration is eager to push past judicial obstruction of the president’s agenda.

Leaps and bounds

President Trump has been fighting numerous court battles against liberal “activist judges” to implement his agenda on immigration and other issues since he entered office, starting with a nation-wide injunction against his travel ban that was eventually overturned by the SCOTUS. In recent months, appeals courts have continued to block Trump’s executive orders on immigration and other issues, prompting him to attack “Obama judges” and the reliably liberal Ninth Circuit Court of Appeals for obstructing his agenda.

“You cannot win if you’re us, a case in the Ninth Circuit, and I think it’s a disgrace when people file, every case gets filed in the Ninth Circuit,” Trump lamented in November after a federal judge blocked his asylum ban on illegal immigrants.

To work around this relentless judicial obstruction, Francisco has taken to short-circuiting the ordinary appeals process by requesting that the Supreme Court look at cases reviewed by lower federal courts before they have gone before a regional appeals court. Francisco has issued the requests and called petitions for a writ of certiorari before judgment eight times, twice in the same case.

The strategy has had partial success. The SCOTUS allowed the Trump administration to temporarily enforce its transgender military ban while declining to expedite the case, which is still winding its way through the courts. But the Supreme Court did not agree to expedite the Trump administration’s DACA case last month, all but guaranteeing that the Obama-era executive order to protect illegal immigrants will remain in place until at least October, when the court’s next term starts.

“The court has found ways so far to split the difference,” said Stephen Vladeck, a professor at the University of Texas School of Law.

Extraordinary or necessary?

Francisco has also asked the high court to intervene in the dispute over commerce secretary Wilbur Ross’ decision to include a citizenship question in the 2020 census, which was set to be considered by the SCOTUS in February before Ross was blocked by a federal district court judge last month. If Francisco is successful in “leapfrogging” the census case, it would be the first time that a case skipped to the Supreme Court in 15 years.

Francisco has argued that appealing directly to the SCOTUS is unusual but not unprecedented, pointing to instances when the high court broke with the normal judicial procedure in the past to resolve pressing policy questions, in 1952, 1974, and 1981. The SCOTUS also took up a case in 2004 that had not been reviewed by an appeals court, although a parallel case had gone through the ordinary process.

The census question may have a timeliness issue that will play in Francisco’s favor. The White House advocate is arguing that the census needs to be addressed right away before the forms are printed in June, the same month that the court’s nine-month term ends. Francisco has made similar arguments for the transgender military ban, for example, arguing that blocking the transgender ban undermines the readiness of the armed forces.

“In the census case there is a pure timing implication that creates an extraordinary circumstance unrelated to the merits,” said Vladeck. However, law professors told The Hill that they aren’t sure how effective Francisco’s strategy will prove to be. “There’s a really interesting and strange equipoise in how the justices have responded to this strategy so far,” Vladeck said. “I’m just not sure how it’ll hold.”

Shooting past judicial obstruction

A number of media reports on Francisco’s “leapfrogging” have scrutinized the method in recent months. Critics describe the practice as a break from precedent that undermines the rule of law and credibility of the judicial system, which is supposed to be nonpartisan.

“I can tell you, seeking cert. before judgment in the lower court is quite rare, and the court taking cert. before judgment in the court of appeals is even rarer,” Georgetown law professor Brian Wolfman told The Hill.

On the one hand, it’s certainly important for the court system to appear nonpartisan and follow procedural rules. But complaints about Francisco’s “unusual” maneuver also echo recent, partisan complaints about judicial “integrity” from the left, which has increasingly been challenging the “credibility” — and even the structure — of the Supreme Court ever since President Trump added two conservative judges to the bench.

The left’s sudden interest in judicial neutrality and process is curious, to say the least. For all their concern about precedent and procedure, the left has floated proposals to pack the court by expanding the number of SCOTUS judges. It seems that the left is more worried about Trump winning in the courts now that the SCOTUS has shifted to the right than they are concerned about upholding the integrity of the court system.

Francisco is banking on hopes that Trump’s agenda will fare better before the Supreme Court, where conservatives have a 5-4 majority, than in the judicial quagmire where his priorities have so far been stuck. Pushback against Trump and Francisco seems to be motivated in part by a desire to keep Trump’s agenda languishing in judicial gridlock.

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Matthew Boose

Matthew Boose is a staff writer for Conservative Institute. He has a Bachelor's degree from Stony Brook University and has contributed to The Daily Caller and The Stony Brook Press.