The Volokh Conspiracy

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Supreme Court Affirms Stay of District Court Injunction Against Wisconsin Election Law

This time, the justices explain themselves.


This evening, while the Senate was preparing to vote on the nomination of Amy Coney Barrett to be the 103rd Associate Justice, the Supreme Court affirmed a stay of a district court order enjoining enforcement of Wisconsin election laws. The vote was 5-3 along ideological lines.

Unlike with other recent election-related order, the Justices explained themselves. The Chief Justice, Justice Gorsuch and Justice Kavanaugh each wrote opinions concurring in the denial of the application to vacate the stay. Justice Kagan dissented, joined by Justices Breyer and Sotomayor.

The Chief Justice's opinion is particularly interesting, because it explains why he voted to affirm a stay here, but refused to vote for a stay of an order of the Pennsylvania Supreme Court, leading to a 4-4 split. At the time, I suggested the Chief joined the liberals in that case "because he does not like judicial intervention or the unnecessary granting of stays." His opinion in Democratic National Committee v. Wisconsin State Legislature suggests I was correct:

In this case, as in several this Court has recently addressed, a District Court intervened in the thick of election season to enjoin enforcement of a State's laws. Because I believe this intervention was improper, I agree with the decision of the Seventh Circuit to stay the injunction pending appeal. I write separately to note that this case presents different issues than the applications this Court recently denied in Scarnati v. Boockvar and Republican Party of Pennsylvania v. Boockvar. While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes. Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin.

The Chief Justice is not a fan of preliminary injunctions as a general matter, and has sought to curtail their use by federal district courts in a range of contexts. In the case of elections, he has embraced a strong form of the Purcell principle, which counsels that, as elections approach, federal courts should err on the side of non-intervention. As the Supreme Court oversees the lower federal courts, the Chief Justice is ready to enforce this principle against federal district courts. When state courts, state agencies, or state legislatures intervene late in the process, however, the Chief Justice does not think this is his concern. Thus the burden to convince the Chief to overturn a state-level decision is much higher.

There are serious arguments for and against the Chief Justice's approach. Whatever the underlying merits, there is a method to the Chief Justice's madness.