The Supreme Court finally stood athwart the single-party district courts running riot and yelled “STOP!” In a case involving the termination of various Department of Education DEI grants, the Court stayed the temporary restraining order (TRO) from the District of Massachusetts requiring the government to pay its past-due and continuing grant obligations. Or, as the Court called it, “what [the district court] styled as a temporary restraining order.”
These Lilliputian TROs are, of course, no such thing. They are preliminary injunctions (PIs) dressed up as TROs to avoid appealability. Here, for example, the goal was clearly to force money out the door that the government would never see again, without any possibility of appeal. As the Court noted in its brief opinion, “No grantee ‘promised to return withdrawn funds should its grant termination be reinstated,’ and the District Court declined to impose bond.”
Furthermore the Court observed correctly that the district court didn’t even have clear jurisdiction to hear the case. This is so because “the Tucker Act grants the Court of Federal Claims jurisdiction over suits based on ‘any express or implied contract with the United States.’”
The decision was 5-4 with the Chief Justice noting generally his agreement with Justices Sotomayor, Kagan, and Jackson in the judgment, without providing any explanation as to why. One is left to guess.
This means, then, that the conservative caterwauling about Justice Barrett was perhaps premature and misplaced.
As I explained recently at some length, Justice Barrett’s jurisprudence needs to be understood for what it is: process-formalist originalism. That is, “an apolitical preference for established formal processes by which deliberative, originalist jurisprudence can ultimately be issued if warranted.” While this view may, at first blush, counsel in favor of following the rules, letting TROs convert into PIs, and waiting for them to percolate through the circuits with due deliberation, that misapprehends what’s actually happening in these cases. As I argued, “it’s the district courts that are being overtly political, and allowing them to do so by standing on legal formalities is itself a political choice, while restraining them—far from being political—would be consistent with sound process theory.”
The acting solicitor general made just these kinds of appeals to process formalism in her petition to the Court. She pointed out that “[u]nless and until this Court addresses” the question of government by TRO, “federal district courts will continue exceeding their jurisdiction by ordering the Executive Branch to restore lawfully terminated grants across the government, keep paying for programs that the Executive Branch views as inconsistent with the interests of the United States, and send out the door taxpayer money that may never be clawed back.”
She pointed out that the case doesn’t belong in this court anyway which is wreaking process havoc around the country because “[d]istrict-court judges in a handful of forums across the country are now pervasively reimagining contract and grant-termination claims as Administrative Procedure Act (APA) suits, vesting themselves with jurisdiction that Congress has withheld from them.” Along these lines she laid out the shenanigans of the First Circuit saying it was authorizing plaintiffs to “circumvent federal sovereign immunity and obtain orders opening federal funding spigots just by dressing up their contract or grant-termination claims as assertions of ‘arbitrary and capricious’ decisionmaking.” The First Circuit which, of course, “took a full week after the completion of briefing on the government’s emergency motion for a stay pending appeal” thus compounding the irregularity of the case.
So, per the acting Solicitor General, you have jurisdictional hijinks leading to significant ex ante confusion. You have procedural chicanery in the district court and the circuit designed to impede timely review of the order. And you have an order from the district that is designed to get money out the door to be lost in time, like tears in the rain.
Is it any surprise that a process-formalist like Justice Barrett would see that the correct disposition in maintaining an orderly judicial process is to put a stop to it? As St. Paul said, “the law is not made for the just man, but for the unjust and disobedient.” It applies to district courts, too.
Hopefully other districts and circuits will take the lesson on offer from the Supreme Court and embrace process formalism themselves. Otherwise they may end up giving MAGA more reasons to cheer Justice Barrett.