After I posted last week’s article Juliana v. US: For Children of All Ages/The Last Hurrah? the plaintiffs filed an Urgent Motion For a Preliminary Injunction. The motion asks the US Court of Appeals for the Ninth Circuit to enjoin the federal government from authorizing the following activities through leases, permits, or other federal approvals:
The motion alleges much of what their original petition accused the federal government of doing in contravention of the plaintiffs’ rights to a habitable environment. The youthful plaintiffs in this instance are not asking the Court to enjoin the government from engaging in the enumerated activities permanently—but for a time that coincides with the Court’s decision on the government’s interlocutory appeal.
In lay terms, the plaintiffs are pushing back on the government’s continued efforts to prevent the case from going to trial. The Administration’s strategy these days is to go around trial and appellate court rulings by directly seeking relief from an increasingly conservative Supreme Court.
The strategy is being put into play by the US Solicitor General, who is the Administration’s Supreme Court litigator. The Solicitor General is appointed by the President with the consent of Congress and is the fourth highest position in the Department of Justice. The current Solicitor General is Noel Francisco.
The maneuver is unusual, although not improper from a legal perspective. In the written response to an earlier request of the High Court to dismiss the case, Juliana’s attorneys stated:
A stay of trial in the district court will disrupt the integrity of the judiciary’s role as a check on the political branches and will irreparably harm these children. The independence of the judiciary, free from pressure by the political branches, is instrumental in preserving our democratic institutions and the people’s respect for them.”
Juliana is not the only case in which the Administration has sought a summary dismissal. The tactic has been used in immigration cases as well. Like so many other things these days opinions vary on the basis of party, with Republicans generally in favor and Democrats opposed.
Justice Breyer calls the request for a mandamus dismissal a “drastic and extraordinary remedy reserved for really extraordinary causes.” The other liberals on the High Court bench, Ginsburg, Sotomayor, and Kagan have agreed with Breyer in immigration cases.
For the government, short-circuiting the system not only gets the case off the books, it means no embarrassing trials, no introduction of substantive evidence subject to cross-examination, and preempts the trial court from fashioning—or even discussing—possible remedies.
For the Juliana plaintiffs, the court response to the motion offers some insights into the court’s thinking on the interlocutory appeal. The motion to enjoin the government was structured such that it lays out key issues that will determine where the Court of Appeals is likely to come down on the interlocutory appeal.
For example, the motion to enjoin speaks to conditions that must be met for an injunction to be issued. One of the conditions is that plaintiffs establish they are likely to suffer irreparable harm to their physical and psychological health. It is a question that must also be answered in the affirmative for the plaintiffs to have standing to sue.
If the Court grants the injunction, then it is likely also to rebuff the government’s dismissal motion as a portion of it claims the plaintiffs haven’t met that standing requirement. If, however, the court denies the injunction, it may still indicate in its explanation of the denial what it is thinking on that and other questions raised in the government’s interlocutory appeal.
The request for injunctive relief is also time constrained in that it identifies leasing actions that the government has planned for towards the end of March. It accounts for the word “Urgent” in the title of the motion request. If the court sees no urgency, then it may be signaling that the decision will be for the government.
I think the aggressiveness of the Juliana plaintiffs as a strategic matter is a good thing—whether it makes any difference in the outcome of the case is another matter. It shows grit and continues to build out the record of the case not only for the appeals of the appeals but for future cases.
Joel B. Stronberg
Joel Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.