Introducing the Interim Docket Blog

I am pleased to introduce SCOTUSblog readers to the Interim Docket Blog, where Will Baude, Dan Epps, I, and surely others, will comment on Supreme Court interim orders and related matters.

An interim order is a non-final judicial decision that determines which party’s position controls in the interim between the filing of a lawsuit and its final resolution. That sounds boring and technical – and it is. But interim orders are where much of the action has been at the Supreme Court this year and for the last decade.

Consider executive power. The court has a few important presidential powers cases on its merits docket. But it has issued dozens of interim orders this year related to presidential power, the vast majority of which the Trump administration has won. (Many of the wins did not turn on the scope of presidential power but rather ruled that executive action was being challenged in the wrong venue or by the wrong plaintiffs; but these rulings have supercharged the administration’s efforts to incapacitate the federal bureaucracy nonetheless.) 

Interim orders are not decisions on the merits. But they can be hugely consequential.  Continuing with the presidency example, they determine whether an executive branch program can operate, or not, during the months or years it takes for final resolution of a case.  They often indicate the justices’ views of the merits and thus preview how the case will eventually be decided. Sometimes they resolve an issue finally as a practical matter.  And they can exert a magnifying stare decisis influence on lower federal courts despite typically containing very little explanation.

In short, interim orders – especially but not exclusively for issues of executive power – have emerged as a track parallel to merits decisions for the practical resolution of important federal questions. Yet interim orders tend to be harder to understand than merits decisions due to the paucity of explanation, the technical rules that govern their issuance, and their underlying complexity.  

When a plaintiff challenges a presidential executive order, for example, it typically seeks an injunction in the district court. If the court grants the injunction, the government typically asks the court of appeals to “stay” it – that is, to suspend the order’s enforceability. If the court of appeals grants the stay, the plaintiff can ask the Supreme Court to vacate the stay; if it declines to grant it, the government may ask the court to do so. Many other sequences can occur – for example, the district court denies injunctive relief, the court of appeals grants it, and the Supreme Court then stays the injunction.

One aim of this blog is to make interim orders more accessible and to situate them in the larger context of the court’s work.

A final word on terminology. Interim orders are sometimes referred to as “emergency” orders. I explained in a recent essay why I thought this was misleading:

The “emergency” label, which connotes an urgent need for decision, misleads. Applicants sometimes characterize a request for a stay or injunction as an “emergency.” But often they do not. The tests for granting or vacating a stay or injunction do not fluctuate depending on how quickly the parties claim to need resolution. And the Court is under no compulsion to resolve the applications quickly. Sometimes it does, but often it takes a long time.

An example of the court taking its time: The solicitor general applied for a stay of the Illinois federal court’s National Guard injunction on Oct. 17. After receiving an initial set of responses, Justice Amy Coney Barrett requested a round of supplemental briefing on Oct. 29.  That briefing closed on Nov. 17.  And as of this posting, there is still no decision – though it should come any day.

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