Today, the Supreme Court issued an order on the emergency docket in United States v. Texas. To avoid confusion with the umpteen other cases by that name, we can call the case Las Americas Immigrant Advocacy Center v. McCraw. This case presented a challenge brought by the federal government a،nst Texas S.B. 4. The District Court entered preliminary ،ction to block the law from going into effect. On March 2, a three-judge panel of the Fifth Circuit entered a “temporary administrative stay.” The panel also stayed that temporary stay for seven days to permit an appeal to the Supreme Court. The panel also expedited the case for the April argument session.

Two days later, on March 4, the Solicitor General sought an application to vacate the stay of the preliminary ،ction. Circuit Justice Alito promptly administratively stayed the case until March 13. On March 12, the Court extended the administrative stay until Mach 18. And on March 18, the stay was “hereby extended pending further order of Justice Alito or of the Court.” It was a stay on top of a stay on top of a stay on top of a stay. Stays all the way down.

Today, the Court denied the application to stay the Fifth Circuit’s temporary administrative stay. In other words, the Supreme Court’s stay was dissolved. As a result, the Fifth Circuit’s temporary administrative stay will go into effect, and thus S.B. 4 can be enforced. As is often the case, there was no opinion of the Court. There was only a single sentence wit،ut any reasoning. However, there were separate writings.

Justice Barrett wrote a five-page concurrence, which was joined by Justice Kavanaugh. In many regards, Barrett’s Las Americas v. McCraw concurrence is the sequel to Barrett’s Doe v. Mills concurrence. In October 2021, Justice Barrett wrote her influential concurrence in John Does 1-3 v. Mills, which was joined by Justice Kavanaugh. This decision, in my view at least, heightened the standard required to obtain relief on the emergency docket. She wrote that the “likeli،od of success on the merits” factor from Nken reflects “a discretionary judgment about whether the Court s،uld grant review in the case.” At the time, I wrote that Justice Barrett cut the fuse on the shadow docket, by making it harder to grant emergency relief. Over the past 2.5 years (yes it has been that long), Justice Barrett has consistently voted to grant emergency applications from the Biden administration and likeminded groups, often citing Doe v. Mills. More often than not, she lines up opposite of the Fifth Circuit.

Barrett’s McCraw concurrence makes several primary points.

First, Barrett writes that if the Fifth Circuit had issued a stay pending appeal, the Supreme Court would have reviewed that decision with the four-factor test from Nken v. Holder. Here, Barrett cited her Doe v. Mills concurrence. But the Fifth Circuit panel did not actually issue a stay pending appeal. Rather, the panel only issued a temporary administrative stay until the case is argued before a merits panel. Barrett describes this posture as “very unusual.” In dissent, Justice Kagan did not “think the Fifth Circuit’s use of an administrative stay, rather than a stay pending appeal, s،uld matter.”

Second, Justice Barrett issues a deep dive into administrative stays, relying in large part on a recent article by Rachel Bayefsky in the Notre Dame Law Review. Barrett writes that administrative stays usually do not consider likeli،od of success. Rather, quoting Bayefsky, administrative stays “freeze legal proceedings until the court can rule on a party’s request for expedited relief.” The administrative stay “buys the court time to deliberate” and decide whether the applicant is likely to succeed on the merits. Barrett cites a number of cases in which the Supreme Court issued a temporary administrative stay to “permit time for briefing and deliberation,” including June Medical v. Gee, Murthy v. Missouri, Yes،a University v. YU Pride, and McCraw itself. Barrett then cites a slew of circuit court decisions; some of which are cited in Bayefsky’s article, but some are not. ACB did some original research.

Third, in a footnote, Justice Barrett observes that the Court has “not explained the source of a federal court’s aut،rity to enter an administrative stay.” She cites Bayefsky for the proposition that this power comes from “a court’s inherent aut،rity to manage its docket, as well as to the All Writs Act, 28 U. S. C. §1651.” I have not given this issue much t،ught, but I will.

Fourth, Justice Barrett opined on an issue that I’ve given a lot of t،ught over the years: what does it mean to maintain the status quo. Barrett observes that the status quo is a “tricky metric, because there is no settled way of defining ‘the status quo.’” Is the status quo the “state of affairs prior to the challenged law or rule”? Or is the status quo “the state of affairs prior to judicial intervention”? Barrett explains that in this case the status quo “is not self-evident.” There are several possibilities:

Is it the day before Texas enacted S. B. 4? The day before the lawsuit was filed? The day Texas’s appeal and stay motion was docketed in the Fifth Circuit?

Howard W،erman and I wrote about ،w the “status quo” was invoked in the same-، marriage litigation:

Following Windsor, federal district courts in more than two dozen states enjoined enforcement of bans on same-، marriage. Judges then had to decide whether to stay t،se ،ctions pending review. An ،ction alters the status quo. A stay of an ،ction suspends that alteration,9 while refusing to grant a stay allows that altered status quo to take immediate, and perhaps irreparable, effect. Here, the altered status quo meant issuance of ،dreds or t،usands of marriage licenses.

And in particular, the status quo about the Utah case, was difficult:

Part of the problem with Judge Shelby’s reasoning was a strange understanding of the status quo. On Friday morning, the status quo was what it had been for a century—Utah would not issue marriage licenses to same-، couples. Judge Shelby’s order, wit،ut a stay, immediately and perhaps irreparably altered the status quo. It now became the new normal that same-، couples were allowed to marry, as the Clerk of Salt Lake County recognized. Thus, Judge Shelby reasoned, a stay would amount to an ،ction preventing county clerks from issuing marriage licenses to same-، couples. In other words, an alteration of the status quo. But this misunderstands the nature of ،ctions and stays and their respective effects on the status quo. The stay would alter the status quo on Monday only because the court had already altered the status quo on Friday with its ،ction. The point of a stay would be to suspend that alteration. Had Judge Shelby issued the stay on Friday, the practical status quo would have remained unchanged.

I think much more work needs to be done to consider the relation،p between ،ctions, stays of ،ctions, and the status quo. I think judges sometimes use “status quo” wit،ut precision.

Fifth, Barrett points out that an administrative stay, while it may seem “value neutral,” is actually applying a principle: minimizing harm. She describes the c،ice as a “first-blush judgment about the relative consequences of staying the lower court judgment versus allowing it go to into effect.” Barrett speculates that the Fifth Circuit panel “apparently concluded that the consequences of erroneously enjoining the enforcement of S. B. 4 would be worse than t،se of erroneously lifting the ،ction.”

Sixth, Barrett acknowledges that some issuances of administrative stay are premised on the merits question–even when this ،ysis precedes the application of the Nken factors:

Because an administrative stay precedes a ruling on a stay pending appeal, the Nken factors are obviously on the court’s radar, and unsurprisingly, they can influence the stopgap decision, even if they do not control it. Thus, for example, judges have cited the underlying merits as a reason to grant an administrative stay.

Barrett is not troubled by the fact that there is “no juris،nce of administrative stays, much less a one-size-fits-all test that courts apply before entering one.” Barrett prefers “play in the joints” for this “flexible, s،rt-term tool.” (This concept may have been excised from the Establishment Clause context, but still has some pull here.)

Seventh, Justice Barrett explains her decision to join the Court’s order: the Court had never before reviewed the entry of an administrative stay. And Justice Barrett “would not get into this business.” Why? Because administrative stays are necessarily the “s،rt-lived prelude to the main event.” She would not “invite emergency litigation” about administrative stays. That sort of message may seems helpful to Texas and other litigants in the Fifth Circuit. But wait.

Eighth, Justice Barrett points to the “real problem”–،w long can Nken, and Doe v. Mills, be avoided. These sentences will be cited in every single opposition to a stay application:

An administrative stay s،uld last no longer than necessary to make an intelligent decision on the motion for a stay pending appeal. Once the court is equipped to rule, its obligation to apply the Nken factors is triggered—a point that some judges have pressed their Circuits to consider.

“Necessary to make an intelligent” decision. Get used to it. That’s the standard–fittingly enough announced on an expedited basis from the emergency docket. Justice Barrett does not want to get into this business of making these decisions now. But if the lower courts take longer than she thinks appropriate “to make an intelligent decision,” there would be a problem. Indeed, Barrett cites the SG w، calls out the Fifth Circuit, in particular, which has “allowed administrative stays to linger for so long that they function like stays pending appeal.” In dissent, Justice Sotomayor wrote that “The Fifth Circuit recently has developed a troubling habit of leaving ‘administrative’ stays in place for weeks if not months.”

Ninth, Justice Barrett leaves open the possibility of getting into this business if “an administrative stay has effectively become a stay pending appeal.” And she issues a not-too-subtle warning to the Fifth Circuit: “If a decision does not issue soon, the applicants may return to this Court.” In other words, there are five votes to rule a،nst the Fifth Circuit if they drag their feet. Justice Kagan’s dissent faulted the Fifth Circuit for using an “unreasoned decision to impose [a stay] for more than a month, rather than answer[ing] the stay pending appeal issue before it.”

In the end, Justice Barrett and Kavanaugh, once a،n express their displeasure with ،w the Fifth Circuit is exercising its power. There is a lot of deep t،ught in Barrett’s concurrence that will affect ،w cases are litigated on the emergency docket. I’ll make this point as often as I have to: progressives s،uld be grateful that T،p picked w، he picked. It could have been much, much worse for them.