Document Type



This short Essay is the first to analyze the Court’s recent emer-gency-docket experiments and discuss their effectiveness. We conclude that the Court’s interventions have real benefits: giving emergency cases greater procedure improves transparency, boosts public confidence in the Court, and gives guidance to litigants and lower courts.

But experiments are often iterative—it is unusual to hit the right result the first time. So too with the Court’s emergency-docket tinkering. In tweaking its stay factors, the Justices have failed to give suffi-cient guidance to litigants about how those factors will apply in the future. Plus, in transferring Ramirez from the emergency docket to the merits docket, the Court made new law in an emergency posture and entered a remedy that the district court had not passed on. Those moves may well have stretched the bounds of the Court’s appellate jurisdiction.

Yet those problems are not insuperable. We suggest that the Court should continue to argue emergency cases or transfer them to its merits docket. But in doing so, it should keep in mind the constraints on its authority and should provide greater guidance to lower courts and litigants.

The remainder of this Essay digs into the Court’s emergency-docket experiments. Part I summarizes criticism of the emergency docket. Part II explains how the Court’s recent experiments address those criticisms. Part III flags questions about these experiments. Finally, Part IV suggests tweaks to those experiments going forward.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.