When President Donald Trump’s administration took its fight to end a controversial immigration program directly to the U.S. Supreme Court last month, skipping over a California federal appeals court in the process, Attorney General Jeff Sessions said it was a “rare step” to ensure a quick and fair resolution.
But the fast trip to the nation’s highest judicial body was not the first time the administration took the unusual route of circumventing liberal-leaning lower courts and heading straight to the conservative-majority Supreme Court for relief from legal setbacks.
In the last year, the Justice Department sought to bypass lower courts four times using varying legal procedures in several high-profile cases, most recently to defend the administration’s right to end the Deferred Action for Childhood Arrivals, or DACA, program.
It also skipped the normal legal process in a fight over whether pregnant immigrant teens held in detention can obtain abortions. And it asked the Supreme Court to quickly intervene in its defense of the president’s travel bans, which primarily affected people from several Muslim-majority countries.
“It’s unusual; it is stretching the boundaries,” said Kevin Russell, a Washington, D.C. attorney who has argued frequently before the Supreme Court and worked in both Democratic and Republican administrations.
The strategy makes sense, some legal scholars say, for an administration that has seen so many of its key policy initiatives challenged aggressively by political opponents, who often file in courts where they are likely to find sympathetic judges.
Administration officials “think they’ll do better in the Supreme Court because it is more conservative than the average circuit (appeals) court,” said John McGinnis, a professor at the Northwestern University Pritzker School of Law.
While major, fast-moving cases often reach the Supreme Court quickly through expedited lower court rulings followed by appeals, skipping steps in the process is rare, many legal scholars said.
Precisely quantifying the number of times previous administrations have bypassed lower courts is difficult, given the volume of matters brought to the Supreme Court and the numerous ways in which cases can be appealed. But the last time the high court decided a case officially filed in advance of judgment by an appeals court was in 2005. That case, during the George W. Bush administration, involved a challenge to criminal sentencing guidelines, not a presidential policy.
Attempts to bypass lower courts are generally considered long-shots, as the court only takes up such requests when the case is deemed to be of “imperative public importance” warranting immediate review.