The Volokh Conspiracy
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The Supreme Court's Mifepristone Stay
Last night the Supreme Court entered a short but important order staying an order issued by the Northern District of Texas in the mifepristone litigation "pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought." This means that the case now has time to proceed in a more orderly fashion, with merits consideration by the Fifth Circuit and a less compressed timeline for cert. briefing before the Supreme Court.
Like everybody else, I've been forced to learn about the legal issues on a very compressed timeline, but the Supreme Court's stay seems correct to me. At a minimum, I don't think plaintiffs have shown that they are likely to succeed on the argument that they have standing in light of Summers v. Earth Island Institute (see Adam Unikowsky for this point and more). And given the importance of the case, it seems obviously certworthy if the Fifth Circuit continues to uphold the district court's rulings against the FDA.
Two justices publicly noted their dissent. (This being the shadow docket, it is possible that there are 1-2 other justices who did not vote for a stay, but chose not to publicly note their votes once they lost.) Justice Thomas noted without further explanation that he "would deny the applications for stays." (I can imagine both defensible and indefensible reasons for this, though as I note, I think the stays should have been granted.)
Justice Alito also would have denied the stays, but offered a longer and more interesting explanation:
In recent cases, this Court has been lambasted for staying a District Court order "based on the scanty review this Court gives matters on its shadow docket," Merrill v. Milligan, 595 U. S. ___, ___ (2022) (KAGAN, J., dissenting) (slip op., at 2). In another, we were criticized for ruling on a stay application while "barely bother[ing] to explain [our] conclusion," a disposition that was labeled as "emblematic of too much of this Court's shadow-docket decisionmaking— which every day becomes more unreasoned." Whole Woman's Health v. Jackson, 594 U. S. ___, ___–___ (2021)(KAGAN, J., dissenting from denial of application for injunctive relief) (slip op., at 1–2). And in a third case in which a stay was granted, we were condemned for not exhibiting the "restraint" that was supposedly exercised in the past and for not "resisting" the Government's effort to "shortcut" normal process. Barr v. East Bay Sanctuary Covenant, 588 U. S. ___, ___ (2019) (SOTOMAYOR, J., dissenting) (slip op., at 5). Cf. Does 1–3 v. Mills, 595 U. S. ___, ___ (2021) (BARRETT, J., concurring in denial of application for injunctive relief) (slip op., at 1) (warning that the Court should not act "on a short fuse without benefit of full briefing and oral argument" in a case that is "first to address the questions presented").
I did not agree with these criticisms at the time, but if they were warranted in the cases in which they were made, they are emphatically true here. As narrowed by the Court of Appeals, the stay that would apply if we failed to broaden it would not remove mifepristone from the market. It would simply restore the circumstances that existed (and that the Government defended) from 2000 to 2016 under three Presidential administrations. In addition, because the applicants' Fifth Circuit appeal has been put on a fast track, with oral argument scheduled to take place in 26 days, there is reason to believe that they would get the relief they now seek—from either the Court of Appeals or this Court—in the near future if their arguments on the merits are persuasive.
At present, the applicants are not entitled to a stay because they have not shown that they are likely to suffer irreparable harm in the interim. The applicants claim that regulatory "chaos" would occur due to an alleged conflict between the relief awarded in these cases and the relief provided by a decision of the United States District Court for the Eastern District of Washington. It is not clear that there actually is a conflict because the relief in these cases is a stay, not an injunction, but even if there is a conflict, that should not be given any weight. Our granting of a stay of a lower-court decision is an equitable remedy. It should not be given if the moving party has not acted equitably, and that is the situation here. The Food and Drug Administration (FDA) has engaged in what has become the practice of "leverag[ing]" district court injunctions "as a basis" for implementing a desired policy while evading both necessary agency procedures and judicial review. Arizona v. City and County of San Francisco, 596 U. S. ___, ___ (2022) (ROBERTS, C. J., concurring) (slip op., at 2).
The Washington District Court enjoined the FDA from altering its current practice regarding mifepristone—something that the FDA had never hinted it was contemplating.
The FDA did not appeal that appealable order, and when seven States that might take such an appeal asked to intervene, the FDA opposed their request. This series of events
laid the foundation for the Government's regulatory "chaos" argument.
Once this argument is put aside, the applicants' argument on irreparable harm is largely reduced to the claim that Danco could not continue to market mifepristone because the drug would be mislabeled and that distribution could not resume until Danco jumped through a series of regulatory steps that would be largely perfunctory under present circumstances. That would not take place, however, unless the FDA elected to use its enforcement discretion to stop Danco, and the applicants' papers do not provide any reason to believe the FDA would make that choice.
The FDA has previously invoked enforcement discretion to permit the distribution of mifepristone in a way that the regulations then in force prohibited, and here, the Government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases, much less that it would choose to take enforcement actions to which it has strong objections.
For these reasons, I would deny the stay applications. Contrary to the impression that may be held by many, that disposition would not express any view on the merits of the question whether the FDA acted lawfully in any of its actions regarding mifepristone. Rather, it would simply refuse to take a step that has not been shown as necessary to avoid the threat of any real harm during the presumably short period at issue.
On the merits, I think Justice Alito makes some good points and some less good ones. I think he is right that in any individual case, the existence of two conflicting district court orders can be the result of gamesmanship, whether by the courts or the parties, and so it is probably a mistake to let that gamesmanship force the Supreme Court's hand. (Of course, taking a broader view, the Court might want to think about whether it has adopted or tolerated legal rules that make those conflicts and games more prevalent, such as overbroad injunctions and vacatur in the administrative law context . . . .)
But as to irreparable injury, the Justices have repeatedly invoked a principle that whenever the government is enjoined from enforcing its policies, it has suffered irreparable injury. (In fact, I wrote about this principle in The Supreme Court's Shadow Docket and it is the best explanation for many of the emergency orders sought and received by the Solicitor General during the Trump administration.) If that principle does not exist or does not apply any more, I am not sure why.
As for Justice Alito's more meta-level critique about criticisms of the so-called shadow docket, again I think he both makes a good point and misses some others. He is right that there are lay and folk complaints about the shadow docket that are inconsistent or miss the point (perhaps even opportunistic complaints by other Justices as well). Often it is a bad idea for the Supreme Court to intervene too often and too quickly outside the more regular course of its business—but sometimes it should, and when those times are depends on the facts and the merits, making it difficult or even impossible to prescribe truly neutral principles for the shadow docket. That is not a reason to abolish the shadow docket. But that also does not mean that we should accept that shadow docket decisions will be arbitrary, or worse, systematically skewed.
The more serious concern about the shadow docket, however, is that these are not the circumstances in which the Court does its best work. These are also not the circumstances in which the Court puts its best face forward. Justice Alito's failure to grapple with the governmental irreparable injury presumption is one example. Similarly, the point he raises about conflicting injunctions, government gamesmanship of injunctions, etc., is a complicated and important one. Indeed it is so complicated that the Court had to DIG the case it had about this issue last term (Arizona v. San Francisco, the concurrence to which Alito cites). A vote on whether or not to grant a stay pending appeal to the Solicitor General, with one week's consideration, does not seem like the best place to resolve them. And the fact that those principles are so unclear is itself an artifact of the shadow docket.
For that reason, I think the Court was wise to simply preserve the status quo and allow the case to proceed in the more regular course of business, where they can give it their best attention when the time comes.