In the present day, a divided panel of the Fifth Circuit granted a writ of mandamus in a dying penalty case. On this case, the district courtroom improperly exercised jurisdiction over a clearly moot case, after which refused to dismiss the case. Mandamus appears plainly warranted.
Decide Ho wrote a concurrence that speaks on to controversies of the day:
Our dissenting colleague asks: What is the rush? Even assuming that the district courtroom erred, the dissent contends that there isn’t any want for rapid reduction—simply let issues play out via “[t]he typical appellate course of.” Submit, at _ (Haynes, J., dissenting).
However that is chilly consolation to the thousands and thousands of voters who took the time to take part within the democratic course of, solely to see their respectable efforts unlawfully undone by a single district choose.
If a district choose abuses the authorized course of in a hurried effort to thwart the lawful political decisions of the voters, appellate courts are effectively inside their proper to intervene and grant emergency reduction.
The Supreme Court docket did simply that final week in Trump v. J.G.G., _ U.S. _ (2025). There (as right here), a district courtroom presumed to grab management over a case of profound public curiosity that it had no lawful enterprise deciding, as a result of it belonged in one other courtroom. So the Supreme Court docket intervened and took the case away from the district courtroom. See id. at _ (“Challenges to removing beneath the [Alien Enemies Act] . . . have to be introduced in habeas. . . . [J]urisdiction [in habeas cases] lies in just one district: the district of confinement. The detainees are confined in Texas, so venue is improper within the District of Columbia.”) (cleaned up).
Like our dissenting colleague right here, the dissenting Justices in J.G.G. urged delay. The dissent agreed with the bulk that the one factor at stake was deciding which district courtroom had the authority to determine the case. See id. at _ (Sotomayor, J., dissenting) (noting that the dispute merely involved “which procedural car is greatest located for the Plaintiffs’ injunctive and declaratory claims”). However the dissent maintained that there was no want for appellate courts to “rush” in and “determine the difficulty now”—simply look ahead to an attraction within the “abnormal course.” Id. at _ (Sotomayor, J., dissenting).
The Supreme Court docket rejected the dissent’s plea for delay. The bulk understood that ready for an attraction within the “abnormal course” would inadequately shield the federal government from the indignity of litigating within the incorrect continuing—to not point out unduly delay the expressed will of the folks. Because the Court docket put it, “[w]e see no profit in such wasteful delay.” Id. at _.
I most actually concur. When a district choose acts rapidly, but appellate courts are instructed to not “rush in,” that is not a plea for judicial sobriety—it is a recipe for district choose supremacy.
I made comparable factors in a submit final month, titled Article III Inverted: The Supreme Court docket Surrenders to Inferior Court docket Supremacy.
But, in current weeks, there was a change: District Court docket judges are in cost. In case after case, federal district courtroom judges have issued a collection of non-appealable orders, whether or not styled as “administrative stays” or momentary restraining orders. Courts of appeals have then declined to disturb these rulings, discovering that TROs can solely be challenged via mandamus, and administrative stays are unappealable altogether. At that time, the federal authorities is pressured to run to the Supreme Court docket looking for emergency reduction. And what has the Supreme Court docket accomplished? They’ve kicked the difficulty again right down to the decrease courtroom, hoping that another person makes the robust choices. Who’s operating the present right here?
Jack Goldsmith calls these techniques “temporizing.” That’s, the Supreme Court docket is solely making an attempt to bide its time to search out different methods of resolving the problems. Which may be proper within the brief run, however I believe we’re witnessing an inversion of Article III. The Supreme Court docket is not Supreme. Quite, the federal authorities is now topic to inferior courtroom supremacy. Decrease courtroom judges at the moment are assured they’ll problem any order they need in opposition to the chief department, and the Supreme Court docket won’t cease them. That is the judiciary run amok.
It’s usually joked that being a District Court docket Decide is the closest factor to being a god. I believe federal judges within the beltway ought to learn Decide Ho’s concurrence just a few occasions.
