In a speculative piece, I outline a mechanism by which six Justices could compel the expedited release of any unresolved case.
On July 27, 2026, the Solicitor General filed an emergency application in Trump v. California. The dispute centered on proposed rules for mail-in voting. The government submitted its reply brief on August 12. After a rapid sequence of proceedings in the lower court, and renewed actions by the government, the Supreme Court ultimately resolved the matter on August 24. This emergency ruling spanned almost an entire month.
The majority opinion, compact at ten pages, concluded that the District Court lacked jurisdiction because the matter was not ripe. Additionally, any claimed harms were speculative under Clapper. The per curiam opinion carries a strong echo of Justice Kavanaugh’s voice. I appreciate the word “concretize.” Justice Kavanaugh has assumed a leading role in drafting some of the Court’s more consequential jurisdictional opinions. One might expect that a former professor of federal courts would guide these issues, but apparently that expectation did not pan out.
Justice Sotomayor’s concise dissent covers all the bases in a mere four pages.
Then there is Justice Jackson. She authored a solo twenty-page dissent that weighs the case on its merits, even though the majority’s discussion centered on jurisdiction. She also warns that the Court’s precedents are generating a “Kafkaesque nightmare.” The real nightmare here is that the Court allowed KBJ to take nearly a month from the filing to craft this dissent.
It appears that all of the Justices were ready to proceed soon after the briefing ended. Yet Jackson prolonged the process to the point that the posture in the lower court shifted. Some critics faulted the Court for not addressing the latest developments. But how could they? Any shift by the majority might provoke another two-week delay from Justice Jackson.
Justice Jackson has demonstrated that she sees little urgency when the Trump Administration submits an emergency petition, particularly when the case originates from the First Circuit. She slow-walked the petition in Libby v. Fectau. My nickname, the Laborious KBJ, still fits.
I will offer a preview of a forthcoming installment from my SCOTUSBlog series on Court Reform. I call it the “Release-6.”
For any matter, six Justices can force the immediate release of an opinion. This rule would apply to both merits and emergency dockets. The majority opinion could be published right away, with a note indicating a dissent is forthcoming. A super-majority of the Court can bring a pending matter to a swift conclusion. If a Justice wishes, the dissent can be issued later, or not at all, while the Court’s business moves forward.
There are some emergency matters where an immediate resolution is essential for the government or the private parties. It may also be impractical to maintain an administrative stay for an extended period. With Release-6, six members of the Court can render their judgment, and the dissent can arrive later, or possibly never.
Trump v. California stood as a prime example. There were six clear votes to grant a stay, and a single dissenter held things up for weeks. Release-6. The Supreme Court delivered a ruling in A.A.R.P. v. Trump before Justices Alito and Thomas could finish their dissents. Cooper v. Aaron was decided before Justice Frankfurter could complete his concurrence. In an emergency case, the Court can act before the separate writings are ready. Justice Jackson should receive the same treatment.
