84. Justice Barrett's SB4 Concurrence and the Fifth Circuit
Two recent decisions by the New Orleans-based appeals court suggest that, if Justice Barrett meant to limit lower courts' use of open-ended administrative stays, the message has not yet sunk in
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Every Monday, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):
This week’s “Long Read” was prompted by two different decisions by the Fifth Circuit last week, both of which can fairly be described as not the type of ruling for which that court has become famous. What is striking about each is not their results, but the length of time prior to those decisions during which an “administrative stay” had been in effect—8.5 months in one, and over a year in the other. Folks might remember Justice Barrett’s warning, back in March, that “administrative stays” (as opposed to stays pending appeal) should last no longer than is necessary to allow the court to resolve a stay pending appeal. Apparently, that message still has not been received by the Fifth Circuit—which will continue to cause mischief both in ideologically charged cases and others.
But first, the news.
On the Docket
The first week of June was still pretty modest by the Supreme Court’s standards. Last Monday’s Order List brought a single new grant of certiorari—in one of those cases that lawyers (and few else) will find interesting. The specific question in Delligatti v. United States is whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force. In other words, can someone “use” force even in committing a crime (that results in bodily injury or death) in which their culpability comes from not doing something? Lower courts are divided on the matter; the Supreme Court will consider it this fall.
Yes, this is the point in the newsletter where I point out how far behind the Court (still) is in taking cases for the October 2024 Term. Going into today’s Order List, the total stands at 10. That’s barely enough to fill the October argument calendar, let alone the November and December calendars—both of which the Court usually fills before rising for its summer recess at the end of June. I’ve written before about this phenomenon; suffice it to say, it hasn’t abated. Maybe, based on cases that have been “relisted,” there will be a surge of grants in today’s Order List; we’ll see.
The Court also handed down another trio of opinions last Thursday, only one of which divided the justices:
First, in Truck Insurance Exchange v. Kaiser Gypsum Co., Justice Sotomayor wrote for an 8-01 Court in holding that insurers who are responsible for claims that are part of a bankruptcy proceeding are a “party in interest” entitled to participate in that proceeding under federal bankruptcy law. (This case is a good example of why I’m wary of efforts to compare the number of unanimous rulings to the number of divided ones; some cases … just aren’t that hard or divisive.)
If you thought that case was exciting, then there was Connelly ex rel. Connelly v. United States, in which Justice Thomas held for a unanimous Court that “A corporation’s contractual obligation to redeem shares is not necessarily a liability that reduces a corporation’s value for purposes of the federal estate tax.” Definitely one for the history books.
The Court divided more sharply in Becerra v. Northern Arapaho Tribe—a pair of consolidated cases about funding for tribal health care. The Indian Health Service—an agency within the Department of Health and Human Services—is generally required by federal law to provide health services to Native American tribes and Alaska Natives. But tribes may contract with IHS to provide their own services and then be reimbursed by IHS not just for what IHS would’ve spent to do the same, but for “contract support costs” the tribes incur. The question that arose is whether tribes can recover “contract support costs” even when they’re also receiving financing from elsewhere. For a 5-4 Court, Chief Justice Roberts, joined by Justices Sotomayor, Kagan, Gorsuch, and Jackson, said “yes,” relying on the text of the Indian Self-Determination and Education Assistance Act. In other words, a big win for tribes at the expense of the federal government (which may explain why it was Justice Gorsuch who provided the fifth vote). Justice Kavanaugh wrote the dissent on behalf of himself and Justices Thomas, Alito, and Barrett, reading the statute … differently, at least largely because of the significant financial consequences the majority’s decision could produce.
Although those three decisions took the Court over the halfway mark for the current term, they only just did so—and, Becerra notwithstanding, with none of the major cases that have continued to back up. Barring some surprise, the Court isn’t slated to issue decisions in argued cases again until Thursday at 10:00 ET. Perhaps the Court will also add a decision day on Friday, but with or without a second day this week, that’ll still leave a heck of a lot of rulings for what, at least as of now, are supposed to be the last two weeks of the term.
Oy.
Finally, Friday also brought the publication of required financial disclosure reports (yes, they’re really called “FDRs”) from eight of the nine justices (Justice Alito received an extension for his). The big news wasn’t just the 2023 data; it was Justice Thomas’s belated amendments to his 2019 report to include some (but not all) of the hospitality previously reported by ProPublica. There’s a lot more to say about these reports in general, and Thomas’s, specifically, but I’ll save them for another day.
The One First “Long Read”: Staying Alive
In March, I wrote about Justice Barrett’s concurrence in the SB4 case—in which the Court allowed Texas’s controversial new state-level deportation law to go into effect (briefly, as it turned out), with Justice Barrett explaining for herself and Justice Kavanaugh that they were voting to do so entirely because the Fifth Circuit had issued only an “administrative stay” of the district court’s injunction, not a “stay pending appeal.” (That post also walked through why these similar-sounding orders are meaningfully different.) In the process, Justice Barrett also issued a warning to all lower courts, but especially the Fifth Circuit: “An administrative stay should last no longer than necessary to make an intelligent decision on the motion for a stay pending appeal” (emphasis added). In other words, if lower courts issued “proper” administrative stays, Barrett and Kavanaugh would generally leave those intact—but only if they were the “right” kind of administrative stay.
Two decisions from last week illustrate the extent to which the Fifth Circuit has not apparently gotten that message—even in cases without clearly ideological results. On Thursday, a 2-1 panel affirmed a preliminary injunction against Llano County, Texas’s book ban, holding that the ban is content-based discrimination in violation of the First Amendment. One day later, a unanimous panel granted a stay pending appeal of a district court order that would’ve required lawyers for Southwest Airlines to undergo religious liberty training (by the Alliance Defending Freedom) as a sanction for a civil contempt finding.
What’s telling about both of these cases is how long an “administrative stay” had been pending each: In the Llano County case, a temporary stay of subsequent district court proceedings had been in place since May 16 … 2023(!). In the Southwest case, the panel issued an administrative stay on September 25. The first panel never ruled on a stay pending appeal, even after holding oral argument and presumably tentatively voting to affirm the injunction (which should’ve vitiated any justification for a stay); the second panel took 8.5 months to issue a unanimous, eight-page opinion granting one. There is just no conceivable universe in which that was the amount of time either panel needed in order “to make an intelligent decision on the motion for a stay pending appeal.”
Critically, these two cases aren’t outliers; I’m focusing on them here because they both came down last week. As Justice Sotomayor pointed out in her SB4 dissent, there are lots of examples of “administrative” stays from the Fifth Circuit that last for months, including in cases in which the stays have sharper ideological undertones (if not overtones).
Just to reiterate why this is such a big deal, unlike the substantial body of case law in lower courts (and the moderate guidance from the Supreme Court) regarding the standard for a “stay pending appeal,” there is almost no law about the standard for a temporary, “administrative stay.” Thus, issuing an “administrative stay” that functions, for all intents and purposes, like a stay pending appeal is absolving the court of appeals of the need to conclude that the traditional stay factors are satisfied; it really is the epitome of a phrase popularized by the “Strict Scrutiny” podcast: No law; just vibes.
In the Southwest case, the panel eventually reached the same conclusion in granting a stay pending appeal, so the concern ends up coming off as being one largely of timing. But in the Llano County case, the panel affirmed—which makes the year-long administrative stay that much more problematic; a panel that affirmed the district court’s preliminary injunction nevertheless froze all proceedings in that court for over a year without ever having to explain why, and pursuant to an at-best-unsettled standard for what’s supposed to be a temporary order.
Given that we’re now almost three months past the Court’s ruling in the SB4 case, it’s hard to believe the judges on these panels were unaware of Justice Barrett’s concurrence (in a case, remember, that itself came from the Fifth Circuit). Instead, it sure seems like Justice Barrett’s message has just not gotten through. That’s not just a criticism of the Fifth Circuit; it also has two potentially serious consequences going forward: First, the Fifth Circuit could pull a similar maneuver in a case with much broader significance than either of the two cases at issue here, in which an open-ended administrative stay produces significant and long-lasting real-world consequences (e.g., by allowing a controversial state law to go into effect, or freezing a federal program on a nationwide basis). Second, if and when that happens, the onus will be on Justice Barrett (and Justice Kavanaugh) to back up what they wrote in the SB4 case—to vacate an “administrative stay” on the sole ground that it was in place for too long, and, critically, to say as much when they do it.
SCOTUS Trivia: Re-Arguments
With so many cases left, and so little time before the justices usually take their summer recess, some folks have asked whether the Court could just … not decide a case (the effect of which would be to “hold it over” for next term). There was a time, when the Court’s docket was much more crowded, when it wasn’t that unusual for the Court to hold cases over—and to set them for “re-argument” either later in the same term or in the following term. Indeed, Brown v. Board of Education and Roe v. Wade are two especially famous examples.
But as the Court’s docket has shrunk, re-arguments have become far less common, and usually have some specific prompt other than a desire on the Court’s part to simply buy time. Since the end of the October 2005 Term (Chief Justice Roberts’s first), the Court has held only six re-arguments, two of which came in cases argued to an eight-justice Court (in between Justice Scalia’s death and Justice Gorsuch’s confirmation), where the Court was apparently evenly divided. The other four all involved requests to the parties to argue issues other than those that had previously been briefed—most recently in Knick v. Township of Scott, in 2019. In other words, the odds that the Court would hold a case over to next term for no reason other than because it ran out of time to decide it is … slim.
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Until then, happy Monday, everyone. I hope that you have a great week!
Justice Alito did not participate in the decision. Following his standard practice, he provided no explanation for his non-participation.
It’s a common thread that the current Supreme Court right wing supermajority no longer cares about traditional standards in its haste to rewrite the law. Whether it’s the prerequisite to obtain a stay, issuing a decision on the merits (such as with the infamous explosion of “shadow docket” mandates written about to great effect by Professor Vladeck), or mistaking factual evidence to reach a preconceived ideological position, the Court has completely gone off the deep end.
It won’t change until either the radical justices are replaced or retired.
It’s absolutely amazing to me how common stays have become. 30 years ago, when I was a very young litigation associate, we lost a p.i. hearing and our client was enjoined from exercising its contractual right to terminate one of its wayward distributors. My research into paths forward led me to “discover” that injunctions could be stayed and the process for doing so. I raised this with the lead attorney on the case, one of the top, most experienced trial lawyers in the state. He chuckled, thanked me for my research, and said, “Yes, they’re theoretically available. But courts never grant them.” We’re in a very different world now.