The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court has just vacated the Fifth Circuit's stay of a district court's preliminary injunction against HB20, Texas's new social media law by a 5-4 vote. Justice Alito (joined by Justices Gorsuch and Thomas) wrote a dissent. (Justice Kagan also noted that she would deny the stay, but did not say why.) I'm sure that these issues will go to the Supreme Court reasonably soon and that others will have much to say on the merits. (I note that the dissent cites Eugene's recent article on social media companies as common carriers.) But I wanted to flag a little procedural question about how the Court handles these applications.
When the Supreme Court grants these applications, one of the things it is supposed to consider is the likelihood that the applicant will eventually succeed before the Supreme Court. This is especially tricky because the Supreme Court has a lot of degrees of freedom. It can overturn and distinguish its own precedents in a way that lower courts don't feel free to do. How should that factor in? Should the Court consider the cases under "existing law" or under what it thinks the law should look like after it decides the case?
Here is what Justice Alito says:
I cannot agree with the Court's disposition. To be entitled to vacatur of the stay, applicants must show, among other things, a "substantial likelihood of success on the merits." Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 5). Members of this Court have argued that a determination regarding an applicant's likelihood of success must be made under "existing law," Merrill v. Milligan, 595 U. S. ___, ___ (2022) (ROBERTS, C. J., dissenting) (slip op., at 1); Wisconsin Legislature v. Wisconsin Elections Commission, 595 U. S. ___, ___ (2022) (SOTOMAYOR, J., dissenting) (slip op., at 1) ("existing precedent"). And whether applicants are likely to succeed under existing law is quite unclear. . . . .
There is a funny ambiguity here. Justice Alito does not come out and say that you should judge these cases under "existing law." Instead he just cites other Justices who have said so. And what's more, he is citing dissents in cases where he was in the majority. In those earlier cases (especially Merrill v. Milligan, which is likely to dramatically change the standard for suits under Section 2 of the Voting Rights Act), Justice Alito did not seem to think he should judge the cases under existing law.
But in Netchoice, Justice Alito goes on to judge the case only under existing law. Is he concluding that the dissents were right, at least on that point about the legal standard? Or is the idea that a Justice can choose whether to judge the case under existing precedent, or under anticipated future precedent? (If so, we can add yet another example to Precedent and Discretion.) It's curious.
(I know I said I'd leave the merits to others, but since it is a hobbyhorse of mine I will add that I think Justice Alito makes a fair point about severability, elsewhere in his dissent. It seems at least plausible that what the Supreme Court should have done is lift the stay as to Section 7's anti-censorship provisions, while leaving the stay in place as to some of the other provisions. It's unclear to me whether a majority of the Court concluded that there was a likelihood of success as to all of the challenges, or whether it just didn't want to think about severability for some reason.)