Justice Barrett's concurrence in McCraw will increase the number of emergency appeals on the Shadow Docket

The Shadow Docket giveth, The Shadow Docket taketh away

Justice Barrett's concurrence in McCraw made it less likely that lower courts will grant administrative stays before a merits panel holds oral argument. And, it turns out, the administrative stays from the Fifth Circuit were not coming from the Court's trumpiest judges. Before the ink even dried on the Supreme Court's shadow docket order, the Fifth Circuit panel (Richman, Oldham, Ramirez) swooped into action. First, on Tuesday afternoon, the panel set oral argument for Wednesday morning (it is ongoing as I type). This oral argument is only on the question of whether a stay should be granted pending appeal. A merit-stage oral argument is set for April 3. Second, the panel dissolved the temporary administrative stay over Judge Oldham's dissent. I suspect the writing is on the wall, and this panel will not grant a stay pending appeal. It is possible the en banc court can override this decision. Chief Judge Richman, according to my 2022 count, is far from the median voter on the Fifth Circuit. But the Fifth Circuit may let this one linger for regular en banc review.

Going forward, I'm not sure if Justice Barrett's concurrence will have the effect that she intended. Let's spin out two scenarios. First, where a district court judge in Austin rules against Texas. Second, where a district court judge in Amarillo rules against the federal government. In both scenarios, if Justice Barrett's approach is followed, the courts are less likely to enter administrative stays for any lengthy duration. And, the average Fifth Circuit panel would probably grant a stay in the case from Austin, and deny the stay in the case from Amarillo. What is the effect? More emergency applications arriving at the Supreme Court filed by the Department of Justice. Yes, in an attempt to tighten the screws on the shadow docket, Justice Barrett likely made the shadow docket even more active.

What will the result be? Ironically enough, Circuit Justice Alito will be forced to enter a never-ending series of administrative stays that are extended as needed to digest complicated cases, which is what happened in McCraw. The Justices will be in the same position as the Fifth Circuit judges who are struggling to handle the torrent of emergency litigation. The shadow docket giveth, and the shadow docket taketh away.

Comments

[Lawperson5000]

It is more likely circuit courts will not grant administrative stays for any period longer than necessary to properly consider a motion for a stay pending appeal, as Justice Barrett intended.

Is every analysis of your based on pure judicial realism? Do you ever stop and think whether something is a good policy regardless of the politics? How about this: (1) long administrative stays are generally not great and (2) forum shopping to obtain nationwide injunctions are not great.

[dwb68]

Blackman's analysis is usually based on hair-on-fire drama, not realism, or even originalism.

[dwb68]

"circuit Justice Alito will be forced to enter a never-ending series of administrative stays that are extended as needed to digest complicated cases"... no. The courts will be forced to justify their stays more rigorously, or the S. court will simply deny them.

Blackman has been wrong on so many things, he's bordering on Ilya Somin-level credibility, which is about as low as it gets on this blog.

[MatthewSlyfield]

Stewart Baker.

[dwb68]

I've never questioned Baker's posts. I dont listen to podcasts, so maybe I've missed something epic.

But-- also, Steven Calabresi.

[Rev. Arthur L. Kirkland]

Baker -- Blackman -- Bernstein -- Volokh -- Calabresi *

If this is the best the vestigial conservatives of current legal academia have to offer, the culture war's trajectory and the mainstream's dominance of American legal academia seem to be secure.

* with Barnett -- Kontorovich -- Lindgren -- Zywicki -- Rosenkranz -- Cassell in reserve, waiting for an outbreak of reason, inclusiveness, modernity, science, progress, or education that must be addressed

[John F. Carr]

Nobody really cares except when the cases are political. If a woman in Texas does or does not have an abortion, that is a national catastrophe. If a hospital chain goes bankrupt due to contested changes in reimbursement rates, that is a local misfortune.

[Rev. Arthur L. Kirkland]

You especially don't care if a woman dies, or experiences substantial injury, consequent to backwater, superstition-induced anti-abortion absolutism.

That's why, and because, you are a right-wing culture war casualty.

[MaddogEngineer]

How could you possibly know that about him? Oh, that's right, you're a bigot yourself. That's how bigots think.

[Rev. Arthur L. Kirkland]

I read his comment, which indicated the disdain for women's rights one commonly encounters at a white, male, stale, right-wing blog.

[MaddogEngineer]

No where did his comment indicate a disdain for women's rights. That's your bigotry shining through. He was referring to whether others consider a hypothetical individual woman's plight a national catastrophe, in comparison to other unfortunate events.

[John F. Carr]

If an abortion ruling goes either way, one side will consider it a national catastrophe.

[MaddogEngineer]

Indeed.

Obviously opposition to abortion is based on a desire to oppress women. That explains all the women who are pro-life. /sarcasm

[Rev. Arthur L. Kirkland]

People who figure women should die rather than receive medically indicated care . . or need to be adjudged a step or two from death before permitted to receive that care . . . are lousy people who deserve everything that is coming to them (or has already been imposed on them) in the culture war. People who scoff at the plight of such women -- whether because of right-wing partisanship or because of silly fucking fairy tales suitable for children rather than gullible, ostensible adults -- are lousy assholes, too.

I don't expect many people at a disaffected conservative blog with an on-the-spectrum misfit fan base to apprehend these points.

[Longtobefree]

"that is a local misfortune"

More likely, it is another consequence of Trump still being alive.

[Rev. Arthur L. Kirkland]

.

If a hospital chain goes bankrupt due to contested changes in reimbursement rates, that is a local misfortune.

Is this a reference to economically inadequate medical facilities in can't-keep-up communities seeking redistribution in the form of big-government handouts rather than letting the market determine winners and losers?

[Rev. Arthur L. Kirkland]

.

And, it turns out, the administrative stays from the Fifth Circuit were not coming from the Court's trumpiest judges.

A commenter has asserted that Josh Blackman used cherry-picked decision (a non-exhaustive list) to support this claim. I do not know whether the commenter is right, but I know no reasonable observer (or anyone familiar with the level of scholarship exhibited by Today in Supreme Court History) would rely on Prof. Blackman's assertion, especially after a challenge.

[windycityattorney]

I don't quite understand why the 5th cir granted the stay of the injunction in the first place. The statute at issue obviously suffers from serious constitutional questions (supremacy clause etc...), the district court found that Texas was unlikely to succeed on the merits and all factors to impose an injunction were met.

Is there no deference to the district court who made the initial ruling? It seems to me the precedent is clear, the US GOVT enforces immigration regulations including accepting or removing aliens. The Texas law directing its own agents to arrest illegals and deport them - regardless of what the federal government is doing in immigration court - is a flagrant violation of the supremacy clause.

I don't practice in immigration and it seems obvious to me that this was the only logical result (the statute is unconstitutional or preempted by federal immigration law). So what was the 5th cir panel thinking?

[Dilan Esper]

I think that's exactly why they were trying to get away with an "administrative" stay and exactly why Justice Barrett's and Kavanaugh's move was so brilliant.

If you have to analyze the stay under the 4 factor test, well, there's a controlling SCOTUS case and you just can't stay the District Court's injunction. But "administrative" stays have no rules at all, so they just figured they would do that, and then put in a waiting period of 7 days to let SCOTUS tell them they couldn't do that.

And this pissed ACB and BK off. Because it was the sort of thing that, if it worked, would encourage lower courts to dress up everything as "administrative" and would encourage people to seek SCOTUS review of "administrative" stays on top of all the other stay litigation they now handle on the shadow docket.

ACB and BK told the 5th Circuit to knock it off, and they did.

[MaddogEngineer]

Saw your tweet about this, agree with your initial analysis. It seems like ACB and BK are trying to close loopholes here, not widen them, to cut down on game playing opportunities. Maybe it will work, maybe it won't. She has a track record on the Court of being against gaming the shadow docket.

Most everyone is being too quick to choose up partisan sides interpreting the ramifications. Especially Blackman, because he’s not being an honest observer and has his own axe to grind. At least he’s not whining about the chief.

[MatthewSlyfield]

"It seems like ACB and BK are trying to close loopholes here, not widen them, to cut down on game playing opportunities."

What they are trying to do, and what they actually accomplish could be very different things.

I have no particular idea how this particular instance will work out in the long run.

[MaddogEngineer]

"Most everyone is being too quick to choose up partisan sides interpreting the ramifications."

We will see whether they accomplish it. We won't know today, or even tomorrow, which is what I just said. It appears they've moved the needle in one particular case immediately. Not yet a trend.

[ReaderY]

Justice Barrett had nothing against administrative stays. She was simply against administrative stays of indefinite duration, and particularly ones lasting longer than than their purpose requires, i.e. longer than is reasonably necessary to reach a deliberative merits-based decision such as whether to grant a stay pending appeal.

[ReaderY]

Justice Barrett leaves lower courts with complete discretion. Because whether one needs a small amount of additional time to make a decision is highly subjective, they are standardless, can be granted for essentially any reason or no reason, and are unreviewable. But only as long as they are short, no longer than reasonably necessary to decide on what to do next.

Nothing in Justice Barrett’s opinion calls for them to be granted any less often, or would suggest any party might benefit from them any more or less than before. They just need to be shorter in duration when they are granted.

[dwb68]

Blackman sees your entirely reasonable analysis and lights his hair on fire anyway.

[Darwinnie]

Maybe Fed Soc pays him by the post.

[Dan Schiavetta]

Josh, don’t you have classes to prepare for and teach? You’ve been posting and posting.

[Vryedni]

In other words, it's a day ending in "y."