Presidential Commission on the Supreme Court of the United States
proceeding.”); Bray Oral Testimony, supra note 35 (defining status quo as “the last peaceable moment” that existed prior to a disruption, and explaining that in a case in which a lower court enters an injunction blocking a new executive policy, “the disruption is coming from the lower courts usually”).
- ↑ Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2496 (Roberts, C.J., dissenting) (emphasis added).
- ↑ For example, Justice Barrett recently denied a request for emergency relief concerning Indiana University’s vaccine requirement. The denial is noted on the Court’s docket without any accompanying explanation. See Klaassen v. Trustees of Indiana University, No. 21A15, https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21a15.html; Amy Howe, Barrett leaves Indiana University’s vaccine mandate in place, SCOTUSblog (Aug. 12, 2021, 9:40 PM), https://www.scotusblog.com/2021/08/barrett-leaves-indiana-universitys-vaccine-mandate-in-place/.
- ↑ As an example, commentators cite the Court’s decisions in a series of cases concerning the rights of people facing execution to have a religious advisor of their chosen spiritual denomination present in the execution chamber at the time of their death. See Dunn v. Smith, 141 S. Ct. 725 (2021) (mem.); Gutierrez v. Saenz, 141 S. Ct. 127 (2020) (mem.); Murphy v. Collier, 139 S. Ct. 1475 (2019) (mem.); Dunn v. Ray, 139 S. Ct. 661 (2019) (mem.). To some observers, the Court’s rulings suggest that some of the Justices’ understanding of the governing legal principles may have shifted across the four cases, but in the absence of majority opinions speaking for “the Court” and information about how each Justice voted in each case, the answer is not clear. See Vladeck Testimony, supra note 8, at 8–9 & 18 (discussing the lack of written explanation for the Court, as well as the lack of disclosure of certain Justices’ votes, in the emergency orders in the religious-adviser capital cases).
- ↑ See Vladeck, The Solicitor General and the Shadow Docket, supra note 9, at 131; Vladeck Testimony, supra note 8, at 14 (citing the Court’s decision in South Bay United Pentecostal Church v. Newsom (South Bay II), 141 S. Ct. 716 (2021) (mem), and emphasizing that none of the four separate opinions issued by Justices who supported the order “purported to apply the four-factor test the Court traditionally follows when considering whether to grant an injunction”). For some of the recent articulations of the standard, which may vary by context, including procedural posture, see, e.g., Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2495 (2021) (“To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a strong showing that it is likely to succeed on the merits, that it will be irreparably injured absent a stay, that the balance of equities favors it, and that a stay is consistent with the public interest.” (internal quotation marks omitted)); Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam) (“To obtain a stay pending the filing and disposition of a petition for a writ of certiorari, an applicant must show (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay. In close cases the Circuit Justice or the Court will balance the equities and weigh the relative harms to the applicant and to the respondent.”); Nken v. Holder, 556 U.S. 418, 434 (2009) (citing the factors as “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies”). Cf. John Does 1–3 v. Mills, No. 21A90, slip op. at 1 (U.S. Oct. 29, 2021) (Barrett, J., concurring) (“When this Court is asked to grant extraordinary relief, it considers, among other things, whether the applicant is ‘likely to succeed on the merits’… I understand this factor to encompass not only an assessment of the underlying merits but also a discretionary judgment about whether the Court should grant review in the case … Were the standard otherwise, applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without the benefit of full briefing and argument.”).
- ↑ See, e.g., Steve Vladeck, The Supreme Court Doesn’t Just Abuse Its Shadow Docket. It Does So Inconsistently., Wash. Post (Sept. 3, 2021, 10:43 AM), available at https://www.washingtonpost.com/outlook/2021/09/03/shadow-docket-elena-kagan-abortion (contrasting the Court’s refusal to issue relief in Whole Woman’s Health, the Texas abortion case, on grounds of legal uncertainty, with cases in which the Court “showed no compunction about [making new law] where alleged infringements on religion were at issue”); Lee Kovarsky, Abortion, the Death Penalty, and the Shadow Docket, SCOTUSBlog (Sept. 6, 2021, 12:03 PM), https://www.scotusblog.com/2021/09/abortion-the-death-penalty-and-the-shadow-docket (contrasting Whole Woman’s Health with cases involving federal executions); see also Alabama Ass’n of Realtors v. Dep’t of Health & Human Servs., No. 21A23, slip op. at 1–2 (U.S. Aug. 26, 2021) (Breyer, J.,
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