When President Donald Trump’s administration took its fight to end a controversial immigration program directly to the U.S. Supreme Court last month, skipping over a California federal appeals court in the process, Attorney General Jeff Sessions said it was a “rare step” to ensure a quick and fair resolution.
But the fast trip to the nation’s highest judicial body was not the first time the administration took the unusual route of circumventing liberal-leaning lower courts and heading straight to the conservative-majority Supreme Court for relief from legal setbacks.
In the last year, the Justice Department sought to bypass lower courts four times using varying legal procedures in several high-profile cases, most recently to defend the administration’s right to end the Deferred Action for Childhood Arrivals, or DACA, program.
It also skipped the normal legal process in a fight over whether pregnant immigrant teens held in detention can obtain abortions. And it asked the Supreme Court to quickly intervene in its defense of the president’s travel bans, which primarily affected people from several Muslim-majority countries.
“It’s unusual; it is stretching the boundaries,” said Kevin Russell, a Washington, D.C. attorney who has argued frequently before the Supreme Court and worked in both Democratic and Republican administrations.
The strategy makes sense, some legal scholars say, for an administration that has seen so many of its key policy initiatives challenged aggressively by political opponents, who often file in courts where they are likely to find sympathetic judges.
Administration officials “think they’ll do better in the Supreme Court because it is more conservative than the average circuit (appeals) court,” said John McGinnis, a professor at the Northwestern University Pritzker School of Law.
While major, fast-moving cases often reach the Supreme Court quickly through expedited lower court rulings followed by appeals, skipping steps in the process is rare, many legal scholars said.
Precisely quantifying the number of times previous administrations have bypassed lower courts is difficult, given the volume of matters brought to the Supreme Court and the numerous ways in which cases can be appealed. But the last time the high court decided a case officially filed in advance of judgment by an appeals court was in 2005. That case, during the George W. Bush administration, involved a challenge to criminal sentencing guidelines, not a presidential policy.
Attempts to bypass lower courts are generally considered long-shots, as the court only takes up such requests when the case is deemed to be of “imperative public importance” warranting immediate review.
A Justice Department official told Reuters in a statement that the government seeks emergency relief only when necessary. “The bottom line is we are careful in what we ask for,” the official said.
The department has not sought Supreme Court review of every major ruling that went against it in lower courts, including two that allowed transgender recruits to join the military as of Jan. 1.
The Trump administration’s Supreme Court strategy has grown out of repeated setbacks at the district and circuit court levels.
Many of Trump’s most significant executive actions, in areas including immigration, transgender rights, energy and the environment, have been at least temporarily blocked by courts. The rulings have often been applied nationwide, not just where the lawsuits were filed.
In the DACA case, for example, a San Francisco judge issued an order on Jan. 9 that blocked the government from rescinding the program, which had protected from deportation nearly 800,000 young people brought illegally to the United States by their parents. A variety of states, individuals and organizations sued after Trump decided last year to rescind DACA, effective in March.
In explaining the unusual appeal directly to the Supreme Court, Sessions said the lower court ruling defied “both law and common sense.” He questioned how the DACA program could “be mandated nationwide by a single district court in San Francisco.”
The other cases taken directly to the Supreme Court by the administration also came after district courts moved to impede key Trump policies or actions.
In November, the administration asked the high court to halt an order by a Maryland federal judge blocking Trump’s revised travel ban, preempting review by the 4th U.S. Circuit Court of Appeals.
It bypassed the 9th Circuit in asking the Supreme Court to clarify its own ruling from last June over Trump’s previous, now-expired, travel ban.
In the case over whether pregnant immigrant minors in federal custody could get abortions, the administration asked the Supreme Court in November to throw out future claims, even though a Washington, D.C. based trial judge had ruled only on specific teenagers’ abortion bids and not the wider issue.
The Supreme Court at least partially sided with the government in the travel ban cases, allowing the revised version to go into full effect and agreeing to resolve its legality before the end of June. The DACA and immigrant abortion cases are pending.
Trump has frequently lashed out at courts that have blocked his key policies. After the recent DACA ruling he said the system was “broken and unfair.” He has also accused opponents of “judge shopping” by filing in courts where appeals would go to the 9th Circuit.
Others now accuse Trump of doing the same at the Supreme Court. The strategy could backfire, some say, if the public perceives the court as stepping in prematurely to help the administration. It could also backfire with the Supreme Court itself.
”If they maintain this steady stream of requests for the court to take extraordinary actions,” said Russell, “the court may start to take a jaundiced view of those requests.”