Does Steel Co. Apply to the Interim Docket?

Meditations On Part III-A of Mullin v. Doe

There is much to say about yesterday’s immigration cases, but consider a specific jurisdictional problem that arose in Mullin v. Doe.

There is a question about whether the federal courts have been stripped of jurisdiction over constitutional challenges to the termination of Temporary Protected Status. There is also a question about whether the Trump administration’s termination of Haiti’s status is unconstitutional in light of the racist things that the President and Secretary of Homeland Security have said about Haiti and Haitians.

Justice Alito’s opinion decides to resolve the case on the second ground, leaving the first undecided. This would ordinarily be an unremarkable instance of judicial discretion to order the questions presented. But there is a special rule, famously expounded by Justice Scalia’s opinion for the Court in Steel Co. v. Citizens for a Better Environment, that courts have no such discretion when the first question is about jurisdiction. “[S]uch an approach,” Justice Scalia wrote, “carries the courts beyond the bounds of authorized judicial action and thus offends fundamental principles of separation of powers.”

There had been practical reasons that courts of appeals had countenanced the exercise of “hypothetical jurisdiction.” If the claimant is going to lose anyway, why not pick the easier or simpler ground for them to lose? The Steel Co. Court responded:

Hypothetical jurisdiction produces nothing more than a hypothetical judgment—which comes to the same thing as an advisory opinion, disapproved by this Court from the beginning. Much more than legal niceties are at stake here. . . . For a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires.

In Mullin, however, Justice Alito distinguishes Steel Co. with the fascinating argument that it does not apply to the interim docket:

It is a cardinal rule that a federal court may not consider the merits of a claim without first making a firm determination that it has jurisdiction. Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 93–94 (1998).

When interim relief is sought, however, a court does not make a final decision on any matter necessary to the ultimate judgment. Instead, the court makes only a predictive—not a final—decision about the outcome of the case. And the likelihood that the court has jurisdiction over a claim and the likelihood that the claim is meritorious both bear on the claim’s ultimate prospects. See Arizona v. Biden, 31 F. 4th 469, 479 (CA6 2022) (Sutton, C. J.). So in evaluating the likelihood-of-success question for the purpose of ruling on a request for interim relief, courts may consider both the likelihood that they have jurisdiction and the likelihood that the claim will succeed on the merits. If they conclude that a claim fails on either ground, they must deny interim relief. Similarly, a court with appellate jurisdiction may reverse on either jurisdictional or merits grounds a lower court order that granted interim relief. But courts need not always start with the jurisdictional ground if the claim for interim relief would also fail on the merits.

Here, we review the District Court’s award of interim relief. Thus, in evaluating Miot respondents’ likelihood of success on their equal protection claim, we may reverse the District Court’s grant of interim relief on either jurisdictional or merits grounds.

Now I get the intuition. But does it really work? Much of what Justice Alito writes here could have been written on the other side of Steel Co. The point that might distinguish the two is that decisions about interim relief “make[] only a predictive—not a final—decision about the outcome of the case.” So is the idea that “hypothetical jurisdiction” is enough to issue “predictive decisions” but not “final decisions”? But why not demand at least “predictive jurisdiction” to issue predictive decisions? Wouldn’t hypothetical jurisdiction produce only a hypothetical prediction?

A simpler way to put the objection is that interim relief is still relief. It is true that it is a different kind of relief than a final judgment, and it is true that the denial of interim relief does not have the same preclusive effect as a final judgment on the merits. But in this case, the lower courts had granted interim relief, and the Supreme Court treated those grants as judgments and reversed them, on non-jurisdictional grounds. That is a form of appellate relief for the government, which the Court issued by pronouncing on the merits of the claim.

Now maybe this distinction would make more sense if we concluded that Supreme Court decisions about interim status had no precedential status. But in recent cases the Court has explicitly upped the precedential status of interim docket decisions, and it appears that the Justices expect lower courts and litigants to treat interim docket decisions from the Supreme Court as functionally conclusive about the legal issues they decide. That runs squarely into Steel Co.’s formalist concern that a Court with no jurisdiction to make precedent might do so anyway.

[We might also wonder what Justice Alito thinks about the inverse situation. Suppose a lower court thinks that is probably, but not definitely, has jurisdiction; and it thinks that the plaintiff is probably, but not definitely, is right on the merits. (If you care, make both probabilities 71% so that even multiplied as independent probabilities the product is greater than 50%.) Is that sufficient ground to issue interim relief, or should the court actually have to assure itself that it does have jurisdiction? I am not sure what Justice Alito would say.]

Now interestingly, and I guess hearteningly, this portion of Mullin is the one portion that does not command a majority. Justices Gorsuch and Barrett declined to join it, so there is no binding precedent for the proposition that the interim docket can be used to issue hypothetical precedents notwithstanding Steel Co.

But this does raise a further puzzle — Justices Gorsuch and Barrett nonetheless went on to join the Court’s resolution of the merits! Does this mean that they implicitly accept the plurality’s conclusion about Steel Co. but don’t want to tell us why? Or does this mean that they actually think that the Court does have jurisdiction, either because the jurisdiction-stripping provision is unconstitutional or because they believe strongly in the quasi-constitutional clear statement rule? Both of these latter conclusions would be surprising — though not unthinkable — in light of Justice Gorsuch’s and Barrett’s other jurisprudential commitments.

Or perhaps Justices Barrett and Gorsuch peeled off without explanation primarily as a way to avoid establishing any precedent on this issue. Hopefully, they have their reasons, and it may be that failing to establish a precedent on this point is the wiser course for now. At the same time, it is yet another example of uncertainty about the rules for adjudication of important cases on the shadow docket — a problem that has not gone away even as the number of such cases increases.