When the US Supreme Court announced Monday that it would take up a case challenging UNC-Chapel Hill’s admissions policy, the court made the rare decision to shorten the normal federal appeals process.
Legal observers note that the Justice’s decision to examine trial court decisions labeled “evidence before judgment” in legal shorthand has become increasingly common over the past three years.
“Monday’s grant was the 14th time since February 2019 that judges have pre-certified a decision,” wrote Steve Vladeck, a law professor at the University of Texas at SCOTUSblog.com. “The evidence before the verdict is mounting, and it’s not clear exactly why.”
US District Judge Loretta Biggs ruled last October in favor of UNC-Chapel Hill’s admissions policy. Biggs rejected the argument that the university had used race as unconstitutional when making admissions decisions.
Under normal circumstances, the plaintiffs, a group called Students for Fair Admission, would have appealed that decision in the Fourth U.S. Circuit of Appeals. Anyone who lost the case at that location could seek a review from the country’s Supreme Court.
But Students for Fair Admission filed for the US Supreme Court in November to grant a “writ of certificate before decision.” This is the official name for “certificate before judgment”.
Vladeck wrote, “Since Congress first granted such authority in the Judiciary Act of 1925 as part of a wider expansion of its jurisdiction, … Has used his power.” “As the present version of Rule 11 of the Court emphasizes, the certificate before the judgment shall be given only on showing that the matter is of such imperative public importance as to justify deviation from normal appellate practice and an immediate determination in this Court.” is required.” ,
In past decades, “proof before judgment” was used to deal with cases involving Nazi saboteurs, the wartime seizure of steel mills by the federal government, Watergate and the Iranian hostage crisis, Vladek wrote. “In all those cases, not only were questions of utmost importance presented, but time was also of the essence.”
The practice became “all but dying” in 1988. Between that year and August 2004, according to Vladeck, the justices petitioned for “proof before judgment” just three times. From August 2004 to February 2019, the court did not allow a single such petition.
Now, “whether viewed as a feature or a bug, it can no longer be denied that the unprecedented use of proof prior to the current court ruling is a fact,” Vladeck wrote.
The Fourth Circuit, which handles appeals from federal affairs in North Carolina, is one of just three circuits nationwide to generate multiple “certificate before judgment” petitions since 2019, Vladeck reports. Justices may display “vague animosity” toward certain circuits, he wrote.
John Goose, senior fellow in legal studies at the John Locke Foundation, noted another interesting trend in Vladeck’s work regarding “proof before judgment” petitions.
“Fourteen of them occurred after Justices Neil Gorsuch and Brett Kavanaugh joined the court in 2017 and 2018 and eight after Justices Amy Connie Barrett joined the bench in 2020,” Goose said. “Some court watchers claim that Trump’s appointment has made the conservative wing of the court more assertive and less respectful than before. Maybe the extended use of the certificate before the decision had something to do with it. ,
