Who is responsible for the 5th Circuit's alleged "troubling habit of leaving 'administrative' stays in place for weeks if not months"?

The worst offender is not Jim Ho, but Carl Stewart.

In the latest iteration of United States v. Texas, Justice Sotomayor observed that the "Fifth Circuit recently has developed a troubling habit of leaving 'administrative' stays in place for weeks if not months." She cited five cases. Those same five cases were cited in the Solicitor General's application to vacate the stay (at 15 n.3).

Would you care to guess which judges were on the panels that granted those administrative stays? Certainly is must be a super-Trumpy panel with Judges Ho, Duncan, and Wilson, right? Not exactly.

Here are the panels that granted the temporary administrative stays that Justice Sotomayor complained about:

• United States v. Abbott, No. 23–50632 (85 days, from Sept. 7, 2023, to Dec. 1, 2023) (Stewart, Graves, Oldham).
• Petteway v. Galveston Cty., No. 23–40582 (41 days, from Oct. 18, 2023, to Nov. 28, 2023) (Jones, Higginson, Ho).
• Missouri v. Biden, No. 23–30445 (66 days, from July 14, 2023, to Sept. 18, 2023) (Stewart, Graves, Oldham).
• R. J. Reynolds v. FDA, No. 23–60037 (57 days, from Jan. 25, 2023, to Mar. 23, 2023) (King, Jones, Smith).
• Campaign Legal Ctr. v. Scott, No. 22–50692 (48 days, from Aug. 12, 2022, to Sept. 29, 2022)(Higginbotham, Stewart, Dennis).

Of these fives cases, Judge Stewart, a Clinton appointee, voted to grant a stay in three of them. Judge Graves, an Obama appointee, voted to grant a stay in two of them. Judge Oldham, a Trump appointee had two. Judge Jones, a Reagan appointee had two. And Judges Ho, and Smith each had one.

After these temporary administrative stays were issued, the cases were accelerated to the next available oral argument session. And in Petteway v. Galveston County, in particular, Judges Jones, Higginson, and Ho set the temporary administrative stay to expire after 15 days.

What lesson do we draw here? Judges of all stripes on the Fifth Circuit grant temporary administrative stays. I think they are doing their best to handle this torrent of emergency motions, many of which are filed by the United States and progressive groups. It is hard to make a decision in short order with limited briefing. Don't forget--by the time a case gets to SCOTUS, there has been a full vetting below. But the circuit judge on emergency duty has a very full plate. The temporary administrative stay helps to get through the rush.

Justice Barrett raised some fair questions on how administrative stays should be granted. But neither the SG nor Justice Sotomayor have put forward any evidence that these temporary stays are being used in some sort of evasive fashion to evade the usual stay-pending-appeal standard. There is also a related point. If the District Courts in Texas are doing such crazy stuff, then the Fifth Circuit should be rewarded for granting these stays! But that sort of argument defeats the narrative.

There is no smoke here. And there is no fire. No shadows either. Justice Kagan was prudent to write her own dissent, and not join Justice Sotomayor's dissent.

Comments

[Jaypd]

To be clear, you proved the issue isn't trump judges but just the 5th circuit, and then you felt like you accomplished something.

Are you having a stroke?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Did your comment accomplish even that much?

I get a real kick out of all the Josh haters, letting him live rent free in your heads, virtue signalling to each other, accomplishing nothing. I'd rather have you wasting time ranting here and accomplishing nothing than actually having a chance at screwing up the world.

[Michael P]

They make a fascinating amount of noise that amounts to "stop writing about what I think isn't interesting!" It's as if they were being forced to read any of this.

[Randal]

I think you're right. Calabresi's stroke appears contagious.

But that sort of argument defeats the narrative.

What narrative? The narrative in your head? Everything isn't in service of a narrative. Did you stop to consider that Sotomayor may be indicating concern with the duration of the Fifth Circuit's administrative stays because she's concerned about the duration of the Fifth Circuit's administrative stays? Of course not. Strawman: The Narrative by Prof. Josh Blackman, esq.

To A Ass: Josh's insanity is starting to catch the attention of the mainstream media. These comments probably don't hurt. From https://slate.com/news-and-politics/2024/03/john-roberts-matthew-kacsmaryk-nationwide-injunctions-judge-shopping.html: Josh Blackman wrote multiple semi-coherent rants about it. Now there's a narrative!

[jb]

He can't imagine that other people aren't also outcome-oriented hacks, so he assumes if Sotomayor writes something he assumes it must be against his team rather than just being an observation about the practices in a particular circuit. So yes, the narrative that he is arguing against is entirely in his head.

[OtisAH]

His big imaginary win here was the “Hah! It’s your LIB judges who do this” stuff.

[Rev. Arthur L. Kirkland]

Judges Ho, Duncan, and Wilson are bigots, so Josh Blackman and the Volokh Conspiracy can’t stop defending them, just as this white, male blog can’t stop habitually publishing vile racial slurs.

Clingers gonna cling. So long as better Americans permit, of course.

[I woke up when Hillary talked about Reconstruction]

As I've said KIrkland reminds me of Hillary...You are either perfect (in agreement with the racist K) or you are wrong and the enemy. No middle ground at all.
And K again shows no knowledge of history as our Pres Wilson was a huge racist.

[Darwinnie]

The cases cited in a brief aren’t exhaustive. The lawyers might have purposefully chosen cases with a broad spectrum of judges. Geez Blackman. All you did is cite check Sotomayor. Whoopee.

[Rev. Arthur L. Kirkland]

A scholar would acknowledge this point, inquire, and respond.

Josh Blackman and the Volokh Conspirators, however . . . .

Carry on, "scholars."

[SimonP]

If one were interested in demonstrating that there is “no smoke here,” one might establish this by comparing the treatment of the Fifth with, say, treatment of the Eleventh, Sixth, or Eighth. One would compare how district court judges in those circuits behave, how their preliminary rulings tend to be treated on appeal, and how often the Supreme Court needs to step in to manage the process.

If one were interested in muddying the waters by taking partisan shots at the liberal justices on the Supreme Court, one might focus instead on cherry-picking examples and simplistically tallying up whether the (D) or the (R) is responsible for particular examples.

There’s something deeply wrong going on in the Fifth Circuit. If this were a blog for legal academics to work out their ideas in a lower-stake, informal way, they might focus on why it is that so many cases are being brought before a handful of judges in Texas, they might evaluate the merit of their broad rulings and legal theories, either in isolation or in comparison to other judges, they might seek to quantify how the Fifth Circuit manages these rulings as compared to other circuits, and they might look at how these cases tend to play out when they finally get Supreme Court review.

Gosh, that sure would be helpful for a readership that is concerned that the actual rule of law is breaking down in Texas, where an ambitious and aggressive AG is bringing case after case to attack Biden policies, and is often finding that his shock-and-awe tactics win at least temporarily, as every link in the judiciary chain seems to stand aside and let him rip up the status quo (even if he seems destined to lose on the merits in a couple years’ time). Is this actually happening? Or is this a figment of our imagination?

But this isn’t a blog for legal academics, is it?

[Estragon]

Not anymore, if it ever was

[Rev. Arthur L. Kirkland]

Don't forget that it's also "often libertarian," and/or "libertarianish" and/or libertarian anything.

Says so right at the masthead (which does not, oddly, mention anything about conservatism, right-wing nuttery, movement conservativism, the Republican Party, the Heritage Foundation, or the Federalist Society).