My initial reaction is that the Court, as a separate branch of government, is in control of its own processes, including when it will hear an appeal. The federal government has to follow the same rules, just like any other litigant, and does not get to tell the Court what cases to hear or when.
Just my initial reaction, but don’t have any cite to back it up. Hope one of our US law Dopers will be along to reply in detail.
Yes, unlike the President’s express power to call Congress into session, set out in Article II, s 3 of the Constitution. The lack of any equivalent power in relation to the Court is significant.
Wasn’t Bush vs Gore basically decided in an emergency session of SCOTUS? It bypassed the appellate court and the normal scheduling process for the docket.
Bush v Gore certainly got moved to the top of the docket, but the court was already in session as the case arose in December 2000. So perhaps it would be best to say it was heard on an emergency basis even it it did not cause an emergency session?
The Court can decide to hear matters on an emergency basis. A Justice can, for example, put out an emergency stay. It has happened most notably in death penalty cases. But the president cannot order it to do so, which I think is what the OP is asking.
US v Nixon went per saltem from the federal District Court to the Supremes, bypassing the Court of Appeals. But that was by special leave of the Court, not by direction of the Prez.
It went from the Supreme Court of Florida, didn’t it? There can be direct review of the highest state court. An appeal from the highest state court doesn’t have to go through the federal courts first.
In the case of the Temporary Restraining Order issued by Judge Robart, the first place that the Government has to go is to the Ninth Circuit Court of Appeals, which has appellate jurisdiction over Washington (state).
Assuming the Government doesn’t get what it wants, or wishes to try for an extraordinary expedited petition to the Supreme Court of the United States for a stay of the order, that would normally be reviewed by Justice Anthony Kennedy, who is in charge of requests for stays from the Ninth Circuit (probably in part because he used to work at that court). Justice Kennedy has the option of referring the matter to the full Court; this sometimes happens on important matters.
The President of the United States cannot order the Court to do anything. Separation of powers, and all that jazz.
Individual SCOTUS justices can issue an emergency stay. Per the court’s rules, an application for a stay is addressed to a single justice via the office of the Clerk of the Court.
A justice may issue a temporary stay of a lower court’s order and on rare occasions then treat the application as a petition for a writ of certiorari for a ruling on its merits.
It appears that, while the Ninth Circuit was not willing to issue an immediate stay, they did agree to expedite briefing (briefs due on Monday) on the request for the court to overturn the TRO. In light of that, apparently the Government has decided not to try and get anything out of the Supreme Court at this point. I would think that’s because they aren’t sure of J. Kennedy’s viewpoint, and don’t think they have five others who would grant an immediate stay.
