The Volokh Conspiracy

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A Deeper Dive On Justice Barrett's Concurrence in Does v. Mills

I think ACB is laying down a flag to instruction litigants how to obtain an emergency stay.


In an earlier post, I wrote about Justice Barrett's concurrence in Does 1-3 v. Mills. In that opinion, she directly linked the "discretionary judgment" for certiorari under Rule 10 with the first factor for a stay, "likelihood of success on the merits."

When this Court is asked to grant extraordinary relief, it considers, among other things, whether the applicant "'is likely to succeed on the merits.'" Nken v. Holder, 556 U. S. 418, 434 (2009). I understand this factor to encompass not only an assessment of the underlying merits but also a discretionary judgment about whether the Court should grant review in the case. See, e.g., Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam); cf. Supreme Court Rule 10.

I wrote that she added a "new gloss to the first Nken factor." As best as I can tell, no Supreme Court opinion has expressly made this linkage between likelihood of success on the merits and Rule 10. In other words, the decision to grant an injunction did not expressly incorporate the rough-and-tumble rules of the cert pool

Hollingsworth v. Perry, which Barrett cited, offered this test:

To obtain a stay pending the filing and disposition of a petition for a writ of certiorari, an applicant must show (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay.

Several colleagues wrote that the first Hollingsworth factor supports Barrett's linkage between Rule 10 and likelihood of success on the merits. I read Hollingsworth a bit differently, and added an update to my prior post:

Update: The first Hollingsworth factor states, "a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari." I think this standard is distinct from what Justice Barrett wrote above. Specifically, Hollingsworth focused on whether a case is "sufficiently meritorious to grant certiorari." Emphasis on "meritorious." But there are many, many discretionary factors to decide whether certiorari is appropriate, beyond the merits. Here, Justice Barrett cited Rule 10, which explains that "certiorari will be granted only for compelling reasons." And Rule 10 references several of those factors, including circuit splits. Also, Justice Barrett referenced the lack of percolation, as this is the first case to arrive at the Court. As we all know, too well, a case that is "sufficiently meritorious" may not warrant cert. The move from Hollingsworth ("sufficiently meritorious") to Rule 10 (many factors) is the gloss I referred to above. It is novel.

Here, I'd like to dive in a bit deeper. In recent years, the Court has become far more parsimonious with cert grants. And at the same time, the Court has been far more willing to grant emergency stays and injunctions. Many of the cases in which emergency relief is granted would likely not be good vehicles for certiorari. To use COVID as an example, by Summer 2020, the lower courts were (arguably) following binding Supreme Court precedent. And after South Bay, there were no circuit splits. Under traditional principles, Roman Catholic Diocese should have been denied cert. But that case was granted to change how the lower courts reviewed COVID restrictions. Justice Barrett cast the deciding vote. And Tandon shifted free exercise clause doctrine altogether.

I think Justice Barrett is planting a flag. She wants the Court to only grant emergency relief where a case would be granted cert under traditional guidelines. And Justice Barrett, as well as Justice Kavanaugh, has already shown themselves parsimonious with cert grants. Justices Thomas, Alito, and Gorsuch have charged the two newest members with lacking "fortitude."

Barrett's concurrence is something of a rebuke of Justices Gorsuch, Thomas, and Alito. And, Justice Barrett is telling litigants to thoroughly argue the Rule 10 factors in all shadow docket litigation. But in the absence of a circuit split, percolation, or other traditional factors for certiorari, do not expect relief from Justices Barrett and Kavanaugh.

Ironically enough, two Justices have significantly curtailed the shadow docket on the shadow docket with only a few sentences.