The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Yeshiva University Loses On The Shadow Docket, Wins On The Penumbra Docket

SCOTUS nudges the lower courts and parties into compliance.


Each new entry on the Supreme Court's emergency docket brings twists and turns. The latest lesson comes in Yeshiva University v. YU Pride Alliance. On June 24, the New York Supreme Court (the trial court) entered a permanent injunction, requiring YU to recognize the LGBT club. On August 23, the New York Appellate Division (the intermediate court) denied a motion to stay the trial court's permanent injunction. On August 25, the New York Appellate Division denied an emergency motion for leave to appeal the denial of the stay. That same day, the New York Court of Appeals (the state court of last resort) denied an emergency motion for leave to appeal the denial of the stay. Four days later, on August 29, YU filed an emergency application for a stay with the Supreme Court. This move, as I noted earlier this month, should have come as no surprise. YU's counsel, the Becket Fund, pursued every possible path in the lower court before going upstairs–or did they? (Disclosure: I've collaborated with Becket on several matters over the years.)

On September 14, a five-member majority of the Supreme Court issued an unsigned order, suggesting that YU could make two more moves in the New York judiciary.

The application is denied because it appears that applicants have at least two further avenues for expedited or interim state court relief. First, applicants may ask the New York courts to expedite consideration of the merits of their appeal. Applicants do not assert, nor does the Appellate Division docket reveal, that they have ever requested such relief. Second, applicants may file with the Appellate Division a corrected motion for permission to appeal that court's denial of a stay to the New York Court of Appeals, as the Appellate Division clerk's office directed applicants to do on August 25. Applicants may also ask theAppellate Division to expedite consideration of that motion.

Because YU failed to make those moves, the Court denied relief.

Justice Alito dissented, joined by Justices Thomas, Gorsuch, and Barrett. They were skeptical either of these paths could even work. And they repeated the charge of cowardice–that the Court is unwilling to act when doing so could occasion controversy.

Second—and more to the point—the majority seems to think that it is still possible for the University to persuade the Court of Appeals to grant a stay. Of course, the Court of Appeals has already denied Yeshiva's application for interim relief, but the majority interprets a case comment written by a court clerk employed by the Appellate Division to mean that the Court of Appeals may give Yeshiva a second bite at the apple notwithstanding its previous denial. That interpretation is dubious, yet the majority seizes upon it as dispositive. I doubt that Yeshiva's return to state court will be fruitful, and I see no reason why we should not grant a stay at this time. It is our duty to stand up for the Constitution even when doing so is controversial.

When I first read the Supreme Court's per curiam order, I immediately checked the Respondents' brief to see if they raised these procedural points about how to expedite the appeal. They did not. And they had no amici. And based on my cursory research, Justice Alito is right that these proposals are "dubious." A colleague flagged a 2002 article published in the Journal of Appellate Practice and Process, titled Freestyle Lawyering: Taking An Expedited Appeal In The New York State Courts. The very first paragraph explains how uncertain this process is:

New York's appellate courts normally hear cases on a first come, first served basis. Occasionally, however, when a party can show "urgency or good cause," a court will expedite the appeal process by granting a calendar preference and an expedited briefing schedule. Determining how to obtain that preference and expedited briefing schedule can often be difficult because New York's rules of civil procedure (the CPLR) provide only that "[p]references in the hearing of an appeal may be granted in the discretion of the court to which the appeal is taken." The statutory rules provide no guidance about how to seek a preference or what an application for a preference must show to be successful. Virtually no case law exists on the subject, and even the bible used by New York practitioners, Siegel's New York Practice, does not explain how to expedite an appeal. The sage advice of most experienced appellate attorneys is, then, the most helpful: "Call the clerk's office."

Forget the clerk's office. Better call John!

Where, then, did the majority discover these two procedural moves? It is doubtful that any of the law clerks actually took a class in New York appellate procedure. (I think Yale Law School has a standing policy to avoid any discussion of state courts in class.) Maybe Justice Sotomayor, who practiced law in New York, was familiar with the procedures. Who knows? But as best as I can tell, the Justices simply made it up.

Indeed, I think the votes may have flipped in this case. Here, the emergency application was filed on August 29, and the briefing concluded on September 3. On September 9, Justice Sotomayor entered a stay of the injunction "pending further order" of the Court. Why would she take this step if the Court was going to ultimately deny the stay? The Court could have done nothing. I think at that point, there was a majority prepared to stay the injunction, and a dissent was in the works. The majority did not want to wait any longer for the dissent to be written, so they settled on a single-Justice stay. But, then the votes flipped. Maybe the Chief persuaded Kavanaugh to agree to the procedural punt. Maybe it was Justice Kagan. Or maybe Kavanaugh came up with the idea himself. But something changed. And the votes ended up where they were.

Why would the Justices make up some random procedural steps? I think the answer lies in the final sentence of the Court's per curiam order:

If applicants seek and receive neither expedited review nor interim relief from the New York courts, they may return to this Court.

Let me translate that sentence for you to English from SCOTUSese. First, Becket, go ahead and file these motions with the state courts. Second, New York courts, if you don't grant the expedited relief we suggested, the Supreme Court will stay your ruling. Third, YU Pride Alliance, you are going to lose, so settle this case to avoid a landmark First Amendment ruling. In this way, the Supreme Court ruled in favor of Yeshiva University, even though it ruled against Yeshiva University. Or, as Ian Millhiser observed, "The justices, in other words, appear to be delivering a thinly veiled threat to New York's appeals courts: Grant Yeshiva the relief it seeks, or else the Supreme Court will." I would say "nudge," instead of threat, but Ian's point is well-taken.

I think we have a new facet of the Supreme Court's emergency docket. You've all heard of the "shadow docket," a term Will Baude coined nearly a decade ago. There is also the "rocket docket," a term that I think I coined. Let's try another term. The penumbra docket: when the Supreme Court uses the emergency docket to nudge the lower court, or the parties, to reach a certain result, without actually ordering any shadow docket relief. The Court lurks in the area outside the shadow docket–as Justice Douglas would explain, the penumbras emanating from the shadow docket.

The penumbra docket is consistent with the Chief Justice's so-called doctrine of one last chance (to use Richard Re's framing): I'm not actually going to rule for the conservatives, but I am going to make it absolutely damn clear what I will do in the next case, so you better fix this mess so I don't have to. (This doctrine doesn't actually work.) And in another prominent emergency case, Justice Kavanaugh has employed the penumbral approach. In Alabama Association of Realtors I, Justice Kavanaugh all but concluded that the eviction moratorium was unlawful, but declined to grant emergency relief because the policy was winding down. Then, when the Biden Administration extended the policy, Kavanaugh ruled against the policy in Alabama Association of Realtors II. Kavanaugh, like Roberts, was hoping that someone–anyone!– would fix the mess. Alas, the Biden Administration called Kavanaugh's bluff, and got burned.

But in the Yeshiva University case, the penumbra docket worked. Four justices in dissent stated they would rule in favor of YU right away. And at least one member of the per curiam opinion signaled he would rule in favor of YU if the lower courts did not timely intervene–why else include the bit about returning to the Court? Four plus one equals stay.

What happened after the Court's nudge? Suddenly, the YU Pride Alliance agreed to a stay. A few weeks ago, the organization told the Court that a stay would expose them to "significant dignitary, social, emotional, and educational harm." Yet, after months of litigation, the organization decided that immediate recognition was not so important, and stipulated to a stay. The plaintiffs no doubt saw the writing on the wall. They would much rather let the case linger in New York state court for a few years, than generate a Supreme Court order finding that the First Amendment protects YU's right to exclude the club.

In this regard, the penumbra docket can be very effective. The Chief Justice, and perhaps Justice Kavanaugh, were able to reach the result they wanted to reach, without having to actually order that relief. In this regard, the penumbra docket is an antidote to the incessant criticism of the shadow docket: You don't like us ordering relief? Fine. We'll just nudge relief.