The Volokh Conspiracy

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Throwing Shade At The Shadow Docket In The Alabama Redistricting Cases

Merrill v. Milligan is the most important shadow docket entry since John Does 1-3 v. Mills


On January 24, 2022, a three-judge panel of the Eleventh Circuit issued an injunction to block Alabama's new electoral maps. The court found that Alabama should have created a second majority-minority district. Alabama appealed that ruling to the Supreme Court, and sought a stay of the injunction. On Monday, the Supreme Court issued an order in Merrill v. Milligan and Merrill v. Caster. The application for a stay was treated as a petition for a writ of certiorari before judgment. The Court granted that petition. The Court also stayed the injunction while it resolves the appeal. Presumably the case will be set for argument next Term.

The Court split 5-4. Justice Thomas, joined by Justices Alito, Gorsuch, Kavanaugh, and Barrett supported the Court's order. Chief Justice Roberts dissented from the grant of the application for stays. But he agreed to grant certiorari before judgment, and would set the case for arguments next Term. Justice Kagan, joined by Justices Breyer and Sotomayor, dissented. They would not have granted the stay. Justice Kavanaugh wrote a concurrence, joined by Justice Alito, that responded to Justice Kagan's dissent. The other members of the majority did not explain their reasoning.

I see this case as the most important shadow docket entry since John Does 1-3 v. Mills. In that vaccine mandate case, Justices Barrett and Kavanaugh explained why they were hesitant to grant injunctions in unargued cases. At the time, I wrote that Barrett and Kavanaugh cut the fuse on the shadow docket. On January 27, Barrett–but not Kavanaugh–declined to grant a stay of an injunction in a capital case. Yet in the Alabama cases, Barrett granted a stay, without explaining her reasoning. How do we reconcile these votes? I think the simplistic answer is that Barrett prefers maintaining the status quo. Or, stated differently, she does not want the Court to enter emergency relief that would alter the status quo. In the vaccine mandate case, the District Court did not grant an injunction, so the status quo remained that the mandate would go into effect. In the capital case, the district court granted a stay of execution, so the status quo remained that the inmate would not be executed. And in the Alabama cases, the district court ordered the state to draw new maps. Granting a stay preserved the old maps, which would continue to remain in effect for the 2022 elections.

Still, Justice Kagan's dissent called out Justice Barrett:

The question whether to accept Alabama's position demands serious and sustained consideration—the kind of consideration impossible to give "on a short fuse without benefit of full briefing and oral argument." Does v. Mills, 595 U. S. ___, ___ (2021) (slip op., at 1) (BARRETT, J., concurring in denial of application for injunctive relief ).

Barrett was not persuaded.

And what about Justice Kavanaugh? I get the distinct sense that he is annoyed at the incessant carping about the shadow docket. Same here. Kavanaugh throws shade on Kagan's shadow docket lamentation:

The principal dissent's catchy but worn-out rhetoric about the "shadow docket" is similarly off target.

The remainder of Kavanaugh's concurrence–which Barrett does not join–provides some more guidance on when he will grant emergency relief for election cases.

First, Kavanaugh repeats over and over and over again that a stay does not resolve the case. Rather, a stay maintains the status quo while the Court resolves the case.

The stay will allow this Court to decide the merits in an orderly fashion—after full briefing, oral argument, and our usual extensive internal deliberations—and ensure that we do not have to decide the merits on the emergency docket. To reiterate: The Court's stay order is not a decision on the merits.

Without question, the old maps will remain in place for the 2022 primaries and general election. But, in theory at least, different maps would apply after 2022.

Second, Kavanaugh explains that the traditional four-factor test for seeking certiorari before judgment does not apply in election cases. Rather, Purcell governs:

As the Court has often indicated, however, that traditional test for a stay does not apply (at least not in the same way) in election cases when a lower court has issued an in-junction of a state's election law in the period close to an election. See Purcell, 549 U. S. 1. This Court has repeatedly stated that federal courts ordinarily should not enjoin a state's election laws in the period close to an election, and this Court in turn has often stayed lower federal court in-junctions that contravened that principle. 

Third, Kavanaugh would extend the Purcell principle to primary elections, at least in this case. We are quite far from the general election in November, but early voting for primaries start sooner.

The District Court's order would require heroic efforts by those state and local authorities in the next few weeks—and even heroic efforts likely would not be enough to avoid chaos and confusion.

I'm not exactly sure how Kavanaugh counts a "few weeks." Early voting for the primaries begins on March 30–about six weeks from now, and more than two months from the District Court's order. Then again, remember when Justice Kavanaugh wrote that the CDC eviction moratorium would wind down "in a few weeks." At the time, 31 days remained on the calendar. Times moves funny in the Kavanaugh chambers.

On the topic of the timing, Justice Kagan included this powerful sentence:

Alabama is not entitled to keep violating Black Alabamians' voting rights just because the court's order came down in the first month of an election year. 

I immediately thought of the McConnell rule–Justice Scalia died in the second month of an election year, but close enough. I suspect the thought crossed Justice Kagan's mind as well.

Fourth, in a footnote, Kavanaugh provides some guidance on when Purcell kicks in:

How close to an election is too close may depend in part on the nature of the election law at issue, and how easily the State could make the change without undue collateral effects. Changes that require complex or disruptive implementation must be ordered earlier than changes that are easy to implement.  

Fifth, Kavanaugh provides a framework to explain how the Plaintiffs can rebut the Purcell presumption:

I would think that the Purcell principle thus might be overcome even with respect to an injunction issued close to an election if a plaintiff establishes at least the following: (i) the underlying merits are entirely clearcut in favor of the plaintiff; (ii) the plaintiff would suffer irreparable harm absent the injunction; (iii) the plaintiff has not unduly delayed bringing the com-plaint to court; and (iv) the changes in question are at least feasible before the election without significant cost, confusion, or hardship.

All four of these elements must be satisfied. The Purcell presumption will be very tough to rebut.

Sixth, Kavanaugh recognizes that the District Court did a really thorough job here, but so what. Conscientious rulings are not insulated from appellate review.

The principal dissent disagrees and emphasizes the thoroughness of the District Court's opinion. But if careful District Court consideration sufficed for an appellate court to deny a stay, then appellate courts could usually end the stay inquiry right there. That is not how stay analysis works. Contrary to the dissent's implication, the fact that the District Court here issued a lengthy opinion after considering a substantial record is the starting point, not the ending point, for our analysis of whether to grant a stay. 

This point is significant. In many cases, the Supreme Court has put a lot of weight on the District Court's factual findings. For example, in Whole Woman's Health v. Hellerstedt, Justice Breyer spent page-after-page recounting the District Court's finding. Indeed, those findings served as the basis for the constitutional ruling. I think Justice Kavanaugh is now signaling that the labor of the lower courts is appreciated, but is only the "starting point." As the saying goes, Okay, we'll take it from here, goodbye.

(We don't talk about Nino, no no.)

Finally, Kavanaugh repeats his claim that Kagan's rhetoric was "mistaken," and adds a curious aside:

Contrary to the dissent's mistaken rhetoric, I take no position at this time on the ultimate mer-its of the parties' underlying legal dispute. And I need not do so until the Court receives full briefing, holds oral argument, and engages in our usual extensive internal deliberations.

I can't recall any opinion where a Justice references "internal deliberations." And not just any internal deliberations–"extensive internal deliberations." What is Kavanaugh getting at here? After the case is argued, the Justices will discuss the case at conference, assign a majority opinion, and if necessary, a dissent. Of course, we all know that deliberations do not conclude at the conference. Opinions go through revisions, and in some cases, votes flip. When Kavanaugh writes "extensive internal deliberations," is he referring to the conference on Friday afternoon? Or the long, slogging process by which a majority is shaped and formed and reformed?  Why is this passage here? What is Kavanaugh saying? That he is open to being persuaded on the matter through extensive internal deliberations–with Justice Kagan? Indeed, he hints that he is open to persuasion on the merits in Footnote 2:

Even under the ordinary stay standard outside the election context, the State has at least a fair prospect of success on appeal—as do the plaintiffs, for that matter.  

Perhaps I am making too much of three words, but after an otherwise meticulous concurrence, this parting thought jumped out at me.

Till next term.