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Stephen Vladeck: Bring Back the Second Part of FDR's SCOTUS Reform Plan

When the Supreme Court hears oral arguments on Friday in two pairs of challenges to Biden administration rules regarding Covid vaccinations, it will do something it hasn’t done since 1970. Usually, the court conducts formal sessions only for cases that have been appealed all the way through the lower courts (or for the rare disputes between states that begin and end in front of the Supreme Court).

On Friday, though, the justices are to hear arguments on four emergency applications on whether two administration rules relating to vaccine requirements should be blocked or allowed to go into effect before the normal appeals process.

Whatever happens in these cases, they are emblematic of an undeniable — and problematic — trend: Controversial new state or federal policies are being instantly challenged in court. The losing side immediately asks appellate courts for emergency relief. And then the losing side in the appeals courts asks the Supreme Court to intervene at the beginning of the case, rather than the end.

The volume of emergency relief cases — like the vaccine mandates, Donald Trump’s dispute with the congressional committee looking into the Capitol riot and challenges to Texas’ abortion law — has skyrocketed. What used to be the exception to ordinary legal process has become the new normal of government by injunction, i.e., court order.

In these circumstances, opponents of the party in power look to squelch policy they don’t like not through the democratic process but through the courts. They shop for a district court with an ideologically sympathetic judge who, in turn, is asked to decide important policy questions on the fly, with truncated briefing, with very little opportunity to develop a factual record and with national impact.

After these rulings, appeals courts, including the Supreme Court, are usually deciding only what the status quo should be while these cases run their course — whether lower-court injunctions should be paused or whether appellate courts should reach out to block policies that lower courts refused to. This litigation is wildly confusing to policymakers and stakeholders as the law changes seemingly every minute, and it takes place at the expense of “ordinary” litigation, which is pushed to the back burner while courts devote more of their finite resources to these “emergency” appeals.

It doesn’t have to be this way. Congress should take a page from Franklin Delano Roosevelt’s infamous court-packing plan — not the part about expanding the Supreme Court, but the part that Congress for a time actually adopted: requiring special three-judge panels, rather than outlier district judges, to hear cases seeking to throw out state or federal rules. Roosevelt warned about courts becoming a “third house of the national legislature.” History is on the verge of repeating itself, and Congress can, and should, step in.

Read entire article at New York Times