How Quickly Should A Justice Call For A Response On The Emergency Docket?

Is Justice Jackson trying to set a new standard?

Yesterday, I wrote about Libby v. Fectau. In this case, the Maine Speaker of the House stripped a member of her right to vote--and ability to represent her constituents. Libby filed an emergency application on Monday, April 28 with Justice Jackson. The application explained that the Maine legislative session begins on May 6. Unless a stay is granted, votes will be held, but Libby will be unable to vote. That danger is completely irreparable. Abrego Garcia may one day be brought back to the United States. Probationary employees can be rehired. Cancelled funds can later be disbursed. But the Maine legislature will not hold a "do-over" vote. Even if the Court is not inclined to grant relief, one would think that the Circuit Justice should at least have the case fully briefed to permit a prompt resolution of the case. But Justice Jackson had other plans.

Today, May 1, three days after the application was filed, Justice Jackson called for a response. And she gave the respondents a full week to reply. She set the deadline for May 8--two days after the Maine legislative session begins. Even assuming the full Court promptly rules on the matter, there will be injuries that cannot be remedied.

Justice Jackson has been very critical of the shadow docket rulings. She referred to standing as a "shiny" object, and referred to the United States as just another party. On the full court, she has but one vote. But as Circuit Justice, she has the only vote. I wonder if Justice Jackson is putting her views on the shadow docket into play. In other words, she can call for a response when she finds it appropriate to do so, and will not follow the deadline requested by the Applicants. In doing so, she can frustrate the ability of the full Court to grant emergency relief.

I checked the high-profile shadow docket entries over the past few months to see how much time elapsed before there was a call for response, and how long the deadline was. I've also noted in parentheses the total time that elapsed from the application until the reply was filed. Here is the set (and please email me if I made any errors):

1. Libby v. Fectau - Application filed on 4/28, J. Jackson calls for response on 5/1, due 5/8 (11 days)
2. Department of State v. AIDS Vaccine Advocacy Coalition - Application filed 2/26, CJ Roberts calls for response on 2/26, due 2/28 (3 days)
3. Bessent v. Dellinger - Application filed 2/16, CJ Roberts calls for response on 2/18, due 2/19 (3 days)
4. Department of Education v. California - Application filed 3/26, J. Jackson calls for response on 3/26, due 3/28 (3 days)
5. Trump v. J.G.G. - Application filed on 3/28, CJ Roberts calls for response on 3/28, due 4/1 (5 days)
6. OPM v. AFGE - Application filed on 3/24/25, J. Kagan calls for response on 3/27/25, due 4/3/25 (11 days)
7. Noem v. Garcia - Application filed on 4/7/25, CJ Roberts calls for response on 4/7/25, due 4/8/25 (2 days)
8. Trump v. CASA - Application filed on 3/13/25, CJ Roberts calls for response on 3/14/25, due 4/4/25 (Oral Argument set for 5/15/25)
9. Trump v. Wilcox - Application filed on 4/9/25, CJ Roberts calls for response on 4/9/25, due on 4/15/25 (7 days)
10. A.A.R.P. v. Trump - Application filed on 4/18/25, stay granted on 4/18/25, response filed on 4/19/25 (1 day)
11. U.S. v. Shilling - Application filed on 4/25/25, J. Kagan called for response on 4/24/25, due on 5/1/25 (7 days)

Chief Justice Roberts consistently calls for a response when the application is filed, or the next day. With the exception of the birthright citizenship case, which was set for oral argument, Roberts has set the deadline as long as six days, usually three days, and sometimes even shorter. (In A.A.R.P., the deadline came after the Court's stay.)  In two cases, Justice Kagan granted a full week. Justice Jackson has now granted a week in one case, and two days in another.

I'm not sure if we have enough data points to figure out a pattern here. But at a minimum, Justice Jackson has signaled that she will move at her own pace, and not the schedule requested by the applicant.

What, then, is a litigant to do if a Circuit Justice does not timely call for a response? Could they seek relief from another Circuit Justice? Or ask the application to be referred to the full Court? Or maybe they can direct the application to the full court in the first instance, and bypass the Circuit Justice? I have a sinking feeling that in A.A.R.P., even though the case was nominally referred to Circuit Justice Alito, the case was decided in the first instance by the full Court. There simply was not enough time for all of the steps to have taken place on Good Friday.

Comments

[not guilty]

I suspect that the oral arguments scheduled for two weeks today regarding preliminary injunctions in three birthright citizenship cases will yield some guidance before the end of this term on what does or does not constitute an "emergency" worthy of the attention of SCOTUS on the shadow docket. That all three cases involve an area of law that has been settled since the 19th century should give us a clue.

As I have said before, the Chief Justice may not wish for his colleagues' vacation plans during the summer recess to be interrupted multiple times per week by the Trump administration seeking so-called emergency relief.

[dwb68]

Scheduling oral arguments is the reward itself, like hitting the lottery. No matter what the Justices say, responding to the shadow docket encourages more shadow docket.

[not guilty]

Not if SCOTUS uses this case to put some guardrails in place.

[dwb68]

In fairness, while the legislative session begins May 6th, the odds of actual votes being held are almost zero. There will be opening ceremonies and first readings and committee meetings and markups and so forth long before there are any votes.

"Abrego Garcia may one day be brought back to the United States"

Also in fairness, though, he wasn't merely deported, he was deported to an El Salvadorian prison, and spending a few days in that prison is not like spending a few days on the beach. Irreparable things like beatings and rape do happen in prison.

[MollyGodiva]

Sure their will be votes. The vote on rules, leadership positions, committee assignments, and other important housekeeping duties.

[dwb68]

Maybe, but she's also in the minority. Rules and committee assignments are negotiated at the leadership level, and votes are perfunctory.

[Flight-ER-Doc]

Article IV, section 4. The United States shall guarantee to every state in this union a republican form of government,

[y81]

It is well-established that that clause is non-justiciable. You could look it up.

[A Japanese Student]

well, it clearly says Republican form of government, not Democratic form of government!

(yes, this is a terrible joke.)

[Flight-ER-Doc]

It was clearly established that humans were chattel - until it wasn't.

It was clearly established that separate, but equal was good enough - until it wasn't.

It was clearly established that the second amendment didn't apply to individuals, until it wasn't.

Just because 9 (or fewer) jackasses in robes decide something doesn't make it right: Just legal.

[y81]

Well, when you become emperor of the world, we'll be interested in your interpretations of the Constitution. Until then, the Supreme Court's interpretations will be more relevant to real life.

[Please, Daivd, Seek Help]

> Unless a stay is granted, votes will be held, but Libby will be unable to vote. That danger is completely irreparable. Abrego Garcia may one day be brought back to the United States. Probationary employees can be rehired. Cancelled funds can later be disbursed. But the Maine legislature will not hold a "do-over" vote.

I'm not sure I understand the analogy here. In each case, the court can _eventually_ restore what is owed to the plaintiff, and the harm stems from the period during which they are denied it. By analogy, Libby's right to vote can be restored, but she will have permanently missed votes. Abrego Garcia can be brought back, but he will have permanently missed his freedom and the US during the period where he wasn't. Employees can be rehired, including with backpay, but in the mean time they will need to tap other sources of funds and be denied the dignity of the job they want to continue working. Cancelled funds can be reinstated, but the organizations need the funds in the meantime. Either harm in the meantime is still harm -- even if a relatively short period of time pending orderly disposition of the case -- or it's not.

It seems fine to argue that the court should treat this case more like an emergency because of the potential for harm, but I don't understand why you insist on simultaneously making the other cases into non-emergencies?

[y81]

Why is Libby even a suitable candidate for emergency relief? She has had all the due process to which she is entitled. A federal district judge heard her case and declined to get out of his lane by enjoining the people's elected representative from (i) a state (don't the Conspirators believe in federalism) (ii) legislature (don't the Conspirators believe in separation of powers)? I don't expect Josh Blackman to have much in the way of coherent intellectual principles, but he seems immune even to shame.
There are some interesting (and to my knowledge novel) First Amendment issues here, but they can be hashed out by appeals in the regular course after the district renders a final decision.

[JoeFromtheBronx]

I wrote about Libby v. Fectau. In this case, the Maine Speaker of the House stripped a member of her right to vote--and ability to represent her constituents.

House member, per the state constitution, is disciplined for bad conduct as part of a state legislature's control of its body. Isn't this part of what the Guarantee Clause is there to secure?

She was not expelled. So, she was not totally stripped of the ability to represent her constituents. How far does that go?

Members of the U.S. Congress have been stripped of committee assignments. Committee assignments are significant & provide a means to vote & do other things important to representation.

To remind, she was censured for revealing the name of a minor, which her colleagues decided risked the child's wellbeing. She refused to repent, which suggests she is fine with doing it again.

That danger is completely irreparable. Abrego Garcia may one day be brought back to the United States.

Garcia is being deprived of time here with his family. Another person was deprived of the right to be there when his child was born. That time, including being there for a special life event, is "completely irreparable" too unless there is some monetary relief (which is not the same as being there for your child).

Garcia's time in prison is also not something that will be cleansed from his psyche or anything either.

[Bob from Ohio]

"revealing the name of a minor"

A "winner" of a public race. Not some confidential fact like you misleadingly imply.

[y81]

You are attempting to substitute your judgment for the judgment of the people's elected representatives. That's commie talk.

[Bob from Ohio]

Just correcting a fact.

She's not going to win her case. Its not like she said something bad about an immigrant, then SCOTUS would act.

[y81]

The facts are the facts determined by the people's elected representatives, the speaker of the Maine house. Not your fake news irrelevant "facts."

[JoeFromtheBronx]

My comment: "revealing the name of a minor, which her colleagues decided risked the child's wellbeing"

The censure resolution notes:

Representative Libby identified the student athlete by name and shared pictures showing the minor in an athletic uniform with the school name clearly legible and blurred the faces of other student athletes to protect their privacy, while intentionally and deliberately leaving the named student's face exposed

Also, her comment significantly expanded the chance of exposure, further "revealing" it:

Representative Libby's post has received national attention that she has amplified by appearing on national television and radio broadcasts to discuss

in a way it would not "reveal" otherwise. That is, "make known to people who otherwise would not know it."

I stick to my comment which didn't say the person's identification was totally concealed. But I appreciate the chance to provide more detail since you are so concerned about the facts.

https://www.cbsnews.com/news/laurel-libby-censure-maine-facebook-post-transgender-athlete-supreme-court/

(providing a link to the censure resolution with further info)

[The Margrave of Azilia]

Blackman is nuts to try and drag Trump's illegal deportation policies into what ought to be an interesting discussion about the basics of a republican form of government.

"She was not expelled. So, she was not totally stripped of the ability to represent her constituents."

The voters of a district cannot be denied their vote, under a republican government. Taking away their representative's vote is taking away *their* vote.

True, if she'd been expelled, there would have necessarily have been a brief interval of no representation, but this would have been followed by a special election. If the vote had been to expel, the district's voters could have swiftly reinstated their representative, or chosen a new representative (unless the special election is unreasonably delayed, which I think would be a violation in itself).

According to the Maine Constitution:

"Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of 2/3, expel a member, but not a 2nd time for the same cause." Article Four, Part Third, Section 4.

There was no bipartisan vote to expel - maybe because no such vote was desired by Democrats, or maybe because the Republican minority wouldn't provide the necessary votes to make two-thirds.

Let's just stipulate that the Republicans, in their moral blindness, refused to recognize the representative's conduct as expellable, thus forcing the Democratic majority to take away a representative's vote under the guise of punishing "disorderly behavior," which simply requires a majority vote.

At minimum, a key point of having a representative in the legislature, under a republican form of government, is so the representative can cast votes. If the house lets a member keep her seat without the right to vote, there is no prompt pathway to restore to the voters of a district their right to a vote in the legislature. A tyrannical bare majority could just take away the vote of a district's representative. And of course we're stipulating that the representative is evil and is content to lose the right to vote so long as she keeps her pay and perquisites.

[The Margrave of Azilia]

To sum up: If they don't want her to vote, kick her out and hope the voters don't send her back. If they don't have the votes to kick her out, or if the voters send her back in a special election, that's the way it goes. *Someone* has to be in the legislature voting in the district's behalf.

[decline to state]

People are deprived of their constitutional representation in state and federal congresses all the time. The governor of Texas decided to deprive a district of their congressional representation and votes for months longer than necessary because he doesn't like who those people will vote. The House of Representatives deprived the 3rd district of New York of their congressional representation for months following the expulsion of George Santos. Ron DeSantis deprived the 6th district of Florida of their right to congressional representation for four months needlessly when he chose to resign so he could run for governor.

What makes this method special, unlike the others it is easily reversed. If she wanted to, Libby could have her voting rights back tomorrow.

Now, personally, I think a rule like Maine has isn't a good one. I just don't see that determining whether it is a constitutional one is an emergency considering we never treat any of the many other ways that districts are deprived of their representation as emergencies.

[The Margrave of Azilia]

I don't know if it's an emergency in the Shadow Docket sense, but whenever the courts get around to considering the merits - hopefully before the whole thing becomes moot - I hope they'll say the people have a right to *voting* representation in the legislature.

If the examples you mention violate this right, I wish the courts had intervened there, too.

[Stuart]

" I wonder if Justice Jackson is putting her views on the shadow docket into play." Because, I am sure none of the other Justices would have ever done this.

[Bob from Ohio]

Bad luck getting the one justice who doesn't know what a woman is.

[Sarcastr0]

It's an extremely legit lawsuit I don't like this policy (even if Libby doxxed a minor, this is not an appropriate remedy).
I wouldn't at all mind if Maine is found to be out of order here.

But the rest of this is just seeking grievance.

[JoeFromtheBronx]

Your opposition to the policy is more "extremely legit" than making regulating state legislative proceedings into a federal question.

When Taylor-Greene lost committee privileges, being deprived the ability to vote, would she have the right to get federal relief too?

It's just a difference in degree only. Committee hearings are pretty important. Consider if someone could not take part in the committee hearings of a federal judge or Cabinet member.

[The Margrave of Azilia]

Was Taylor-Greene denied the right to vote in the House (as opposed to committee)?

[not guilty]

Federal courts can review punishment of state legislators if such punishment offends federal constitutional guaranties. See Bond v. Floyd, 385 U.S. 116 (1966).

Bond involved the refusal to seat the winner of a legislative election because of his criticism of the Government's Vietnam policy and the operation of the Selective Service laws. This was held to be a First Amendment violation. The issue had not become moot because Rep. Bond was entitled to back pay for the time he had missed while excluded.

According to Rep. Libby's SCOTUS application, Maine House Rule 401(11), provides that a member “guilty of a breach of any of the rules and orders of the House … may not be allowed to vote or speak … until the member has made satisfaction.” https://www.courthousenews.com/wp-content/uploads/2025/04/libby-fecteau-emergency-app-scotus-maine.pdf

I haven't researched whether an elected state legislator, who continues to hold office with all salary and benefits thereof, has a liberty or property interest in speaking during legislative proceedings and/or in having her vote counted during such proceedings. Intuitively I would think so, but as I said I haven't researched the question.

[The Margrave of Azilia]

"I haven't researched whether an elected state legislator, who continues to hold office with all salary and benefits thereof, has a liberty or property interest in speaking during legislative proceedings and/or in having her vote counted during such proceedings."

It's the *voters* whose rights are on the line.

[MaddogEngineer]

AFAIK no representative in Congress has a "right" to any committee assignment. This is a political question, and governed by the rules of each house. If a member does not caucus with any party, he has no particular right to any committee assignment. It's often to the benefit of one party to bring such an independent into their fold, which is why it usually happens. But not required.

[y81]

I would apply Bernstein logic. Blackman has said that no matter how unjust or ill-founded the policy of the people's elected representative is, the courts have no business second guessing it. Therefore, the courts have no business second guessing the speaker of the Maine house. In Bernsteinland, two wrongs make super right.

[MaddogEngineer]

It's a bit more than Maine being found out of order here. Isn't this a grave threat to democracy? A people's elected representative being denied a vote in a legislature, because of her speech. I mean, if we're going to be similarly concerned about deporting green card holders for their supposed speech.

(Periodic reminder I've never voted for Trump, and oppose many of his policies and governing by executive order. Just like I have past administrations.)