The Volokh Conspiracy
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SCOTUS: Unexplained Stays For Me, But Not For Thee
In the Trump immunity case, SCOTUS effectively granted a stay without considering the likelihood of success on the merits.
In Trump v. United States (the immunity case), the Supreme Court ordered the D.C. Circuit to "continue withholding issuance of [its] mandate" until the Supreme Court issues a judgement. At Lawfare, Jack Goldsmith (no relation to Jack Smith) and
Tom Koenig offer a wonky breakdown of the Court's order. Here, I'd like to flag one aspect of the per curiam order that bears on a topic of recent interest: unexplained stays that avoid the four-factor test from Nken v. Holder. Goldsmith and Koenig write:
We cannot find any square precedent for the Supreme Court's order to a lower court to withhold the issuance of that court's mandate. (Given the difficulty of researching obscure emergency orders, we very well may have missed a precedent.) The Court has withheld issuance of its own mandates. It has "stayed" the issuance of lower federal courts' and state courts' mandates. And it has denied requests to "stay" the issuance of a lower court's mandate. But our research has not turned up a past instance of the Supreme Court directing a lower court to "withhold issuance" of its own mandate.
The first puzzle here is whether this order differs from a stay. The Supreme Court seemed to go out of its way to indicate that it was not issuing a stay when it used the language of "withholding the mandate"; when it ruled that Trump's stay request was moot; and, perhaps, when it stated that it was not implying anything about the merits, which a stay order typically does, since at least a "fair prospect" that the Court will reverse the judgment below, and perhaps even a "likelihood of success on the merits," is needed for a stay. (Both the precise standard for a stay in the Court and whether there is a meaningful difference among the potential standards are unclear; but some merits consideration is typically involved under all the relevant standards.)
Yet the Court's order appears to have the same practical effect as a stay of the mandate: The D.C. Circuit's order cannot go into effect, pending the Supreme Court's review. As the Court explained in Nken v. Holder, an appellate court's stay of a lower court's order temporarily "hold[s]" that order "in abeyance pending review." Here the order the Supreme Court held in abeyance is the D.C. Circuit's order affirming the district court. The D.C. Circuit had already stayed that order by directing the clerk of the court to withhold its issuance temporarily. (As noted above, the D.C. Circuit treats "withhold orders" as stays.) By directing the D.C. Circuit to continue withholding its order affirming the district court, the Supreme Court achieved the same result as a stay.
The Supreme Court did not grant a stay of the D.C. Circuit's judgment. The Supreme Court did not consider the four-factor test from Nken v. Holder. The Supreme Court expressly did not opine on the merits.
It is possible that the Court in its Trump v. United States "continue withholding" directive relied—in part or in whole—on its inherent power to "hold an order in abeyance," in the words of Nken. This might explain why it did not use the language of "stay" and why it could nonetheless dismiss the request for a stay as moot. And it might also explain why the Court could indicate that it had not taken any view of the merits in issuing its order. For the Court's inherent power to hold a lower court order in abeyance in this context might not turn on the traditional stay factors, including a preliminary merits assessment (whether filtered through the "fair prospect" of reversal standard or the "likelihood of success on the merits" standard). Indeed, since the Court granted certiorari on a potentially dispositive interlocutory issue in the same order, it is natural to see its directive to the D.C. Circuit as, in the words of McKenzie, part of an inherent power needed to "render [the Court's] jurisdiction efficacious" without any need to take a view on the merits.
The Supreme Court did exactly what Justices Barrett and Kavanaugh told the Fifth Circuit not to do: issue a temporary shadow docket remedy that puts a lower court ruling on hold without considering whether the suit is likely to succeed on the merits.
The message is loud and clear: unexplained stays for me, but not for thee.
If you read through the rest of Goldsmith and Koenig's post, I think you'll come to the conclusion that--at best--the Court was relying on some sort of "inherent" authority to order the withholding of the mandate without actually issuing a stay. The authors write that such an argument "appears to be a novel basis for a directive of this sort and might imply a much broader power to stop lower court proceedings than the Court has until now recognized." We are in very nebulous grounds here--perhaps yet another facet of the shadow docket that warrants a New York Times best-selling book.
The Supreme Court should get its own emergency docket in order before lecturing the lower courts how to deal with theirs.
