De Facto Denials on the Shadow Docket: When the Circuit Justice Slow-Walks The Call For Response

Justice Alito effectively denies Pennsylvania emergency appeal by calling for response after Electoral Count Act "Safe Harbor Date"

Generally, the Circuit Justice plays a minimalist role. He can deny frivolous emergency applications without referral to the full Court–often without even calling for a response. For meritorious emergency applications, the Circuit Justice can call for a timely response, and then refer the matter to the full Court. But there is a third path for the Circuit Justice that is less obvious: de facto denial by delay.

The Court will not grant emergency relief without hearing from the other side. Sometimes, the Circuit Justice will enter an "administrative" stay that preserves the status quo while briefing concludes. But that stay will usually only last a few days.

Some emergency applications need relief by a certain date. For example, the state schedules an execution date and time. The Court must decide the pending application before the execution date and time. If the Court waits too long, the prisoner will be executed, and the application becomes moot. Recently, this frantic briefing schedule has created public schisms on the Court. Another example might concern an election. The Court may have to issue a ruling before an election is held so administrators know what rules to apply. Indeed, the so-called Purcell principle was used consistently this year to avoid last-minute changes to election rules.

This year, post-election litigation is facing a pressing deadline. December 8 is the so-called "safe harbor" date. Under the Electoral Count Act, elections settled by this date will be treated as presumptively valid by Congress. On December 3, a congressional candidate from Pennsylvania filed an emergency application with the Court. For this appeal to have any chance of succeeding, the Court would have had to resolve the application before December 8. The Court could have easily ordered a 24-hour briefing schedule. Sucks for the parties, but the Court seldom considers the burden of tight deadlines. But Circuit Justice Alito ordered a response by December 9. Generally, six days is the standard reply time for an emergency application. And, apparently, Justice Alito did not think the case warranted faster consideration.

By slow-walking the response, Justice Alito effectively denied the application. Election Law professor Rick Hasen explained, "By setting the deadline for a response as December 9, this means that the Supreme Court won't act until well after the safe harbor deadline has closed, making it even less likely that the Supreme Court would overturn the results in Pennsylvania."

Another aspect of shadow docket litigation: de facto denial through by granting the full six days for a call-for-response.