Extraordinary Relief and "Existing Law"

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.)

Comments

[David Nieporent]

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.

But Alito misrepresents the facts. He says that "vacating the stay requires a determination that applicants are likely to be able to show that every provision of HB20 is unconstitutional." But the district court did not stay "every provision of HB20." It only stayed Section 2 and Section 7. And if you strike down the provisions of those that interfere with platforms' 1A rights, there isn't anything left. And it's not as if the 5th circuit's stay order presented any analysis in support of staying the injunction or any part of it.

[Scribe]

Maybe he's just jamming Roberts and Kagan for two-facedness?

[EscherEnigma]

Or more likely, Alito is just needling his colleagues. Dissents are full of passive aggressive snipes, and a dissent quoting dissents is a two-fer.

[Stephen Lathrop]

Whatever legal questions Alito proposes to decide, I will always favor an answer on behalf of making it easier for a later court to overturn an Alito decision. In light of that, I must logically grant Alito power to use future law as his basis for answering whether an applicant's likelihood of success is satisfied. It would be paradoxical in the extreme to help Alito bypass stare decisis, only to let him make law to hamper with stare decisis applicants trying to overturn his decision.

[Earnest]

Hey I think I can resolve this ambiguity for you - Alito will vote in any given case in the way that helps conservatives, if the case has any such bearing, rather than on any abstract, consistent procedural philosophy.