In a rare and perhaps unprecedented ruling, the Supreme Court on Wednesday took control of a federal trial court’s management of the flow of documents in the pre-trial stage of a pending case. It did so in a high-profile case challenging the legality of the Trump Administration’s decision to end the program that has protected some 800,000 young undocumented immigrants from being deported. (That is the “DACA” program – Deferred Action for Childhood Arrivals.)
In a four-page ruling the Justices – without any announced dissents – barred a San Francisco judge from demanding any more papers from the Trump Administration that would bear on how the September decision on DACA’s demise was made. The decision made clear, though, that the Justices were not interfering with a hearing the judge is set to hold this Friday on key pre-trial motions – including a plea by the Administration to end without a trial the challengers’ case against the rollback of the five-year-old DACA program. DACA originated in the Obama Administration to protect young immigrants who had illegally entered the U.S. as children and have grown up in this country.
Congress has been pondering a potential legislative rescue of DACA, but the lawmakers are likely to adjourn the current session without acting on the issue.
In the Justices’ Wednesday decision, they gave specific instructions on how both the trial judge and the U.S. Court of Appeals for the Ninth Circuit are to proceed over the next several days or weeks in the heated controversy over access to internal government documents. Document disputes are a common part of pre-trial maneuvering in many if not most high-stakes lawsuits, but they are usually left to the trial judges, who have wide discretion to sort the dueling demands for disclosures.
When the Supreme Court stepped briefly but temporarily into the DACA documents controversy earlier this month, four Justices dissented, protesting that the majority “abandons the practice of non-intervention in this kind of discovery-related disputes.” Those four – Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor – did not dissent Wednesday although their support for the unsigned opinion cannot be assumed.
The ruling relieves the Administration of submitting to the California judge – U.S. District Judge William Alsup – potentially a long list of government papers and notes about just why the Administration ended DACA after claiming that that the program could not withstand a threatened court challenge to it. Judge Alsup had demanded that those files be handed in by Friday’s hearing date, for his inspection on whether they should be shared with the challengers for use in their case. The documents were to have come from the Departments of Justice and of Homeland Security, and at least some of them might have originated in the Trump White House.
The judge presumably will now go ahead with the hearing, at which lawyers will argue two motions: the Administration plea to dismiss the case because, the government argues, the decision to end DACA is not subject to any review by the courts because it came as a result of the use of official discretion about policy, and the challengers’ plea for the judge to block the DACA termination from taking effect, as now planned, on March 5, because – they argue – the decision was not reached by a proper procedure and, in any event, is unconstitutional.
The judge, supported by the Ninth Circuit Court, had concluded that the files that the Administration chose – on its own – to submit for use in the case were not the “complete record” on the policy shift, so had to be supplemented.
Those rulings, by the trial judge and the appeals courts, were the ones that the Justices on Wednesday agreed to review, leading then to the ruling that spelled out what is now to happen on the documents controversy. The opinion said that the government “makes serious arguments” that “at least portions” of the judge’s demand “are overly broad.”
As a result, the new ruling said, Judge Alsup “should have granted” a government request to put off any further document disclosure until after deciding the two key motions from the opposing sides. If the government were to grant the government’s arguments against court review of the DACA decision, that probably would have ended the need for any further turnover of documents, the opinion said.
The Ninth Circuit Court was instructed to take steps to assure a ruling by Judge Alsup on the government’s case-ending plea, the judge was instructed to rule and then set up an immediate chance for the government or the other side to appeal such a ruling, and the lower courts were both instructed to consider whether narrowing the document demands might be “necessary and appropriate.”
In no event, the decision added, may the trial judge order the government to disclose any document which it claims is confidential until the government has a chance to argue against its disclosure.
Finally, the ruling stressed that the Justices were not taking a position on who should win the case in the end, and were not taking any action to delay Friday’s hearing in the San Francisco court.
There is no way anyone outside the Court could know for certain why the Court appeared to be unanimous in taking this rare action, but the dissenters from earlier in the month might have become convinced that this was a one-time intervention by the Court rather than an open invitation for others in disputes over trial documents to bring their controversies to the Court rather than working them out in lower courts. It is also possible that the four Justices who had dissented earlier made the record that they wanted, and concluded that the votes were there for the Court to take charge of the dispute. It took at least five votes to approve the new decision and, as indicated, there were no recorded dissents..
While the decision is highly detailed, and quite specific to the facts that unfolded in the dispute before Judge Alsup, the order does amount to a precedent-setting decision, reached after only preliminary briefing and without holding a hearing (technically, a summary ruling).
Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.
