Presidential Commission on the Supreme Court of the United States
dissenting) (criticizing the majority for vacating a stay entered by a lower court when the agency order was not “demonstrably wrong” (citation omitted)); Wheaton College v. Burwell, 573 U.S. 958, 965–68 (2014) (Sotomayor, J., dissenting) (objecting to the majority’s decision to issue an emergency injunction where the legal rights at issue were not “indisputably clear,” as required by precedent interpreting the All Writs Act, 28 U.S.C. § 1651 (citing Turner Broad. Sys., Inc. v. FCC, 507 U.S. 1301, 1303 (1993))).
- ↑ As one Commission witness put it, “[i]t is common in our legal system for preliminary orders, rather than merits decisions, to have different norms of justification and attribution.” Bray Testimony, supra note 7, at 13. See also Alito, “The Emergency Docket,” supra note 10.
- ↑ As Professor Michael Morley argued in congressional testimony, “it may often be much easier for Justices to agree on an ultimate outcome than to craft an opinion with detailed reasoning … .” The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on the Courts, Intellectual Prop. & the Internet of the H. Comm. on the Judiciary, 117th Cong. 3 (2021) (statement of Michael T. Morley, Florida State University College of Law) [hereinafter Morley House Testimony], https://docs.house.gov/meetings/JU/JU03/20210218/111204/HHRG-117-JU03-Wstate-MorleyM-20210218-U1.pdf.
- ↑ See, e.g., Presidential Commission on the Supreme Court of the United States 18 (July 16, 2021) (written testimony of Kenneth Geller, Mayer Brown LLP, & Maureen Mahoney, Latham & Watkins, LLP) [hereinafter Geller & Mahoney Testimony], https://www.whitehouse.gov/wp-content/uploads/2021/07/Geller-Mahoney-Testimony.pdf (arguing that “requiring the Court to announce legal conclusions may appear to commit the Justices to particular views before merits briefing—which itself is a criticism of some emergency orders”); Bray Testimony, supra note 7, at 14 (discussing potential psychological precommitment effect).
- ↑ See, e.g., Trevor N. McFadden & Vetan Kapoor, The Precedential Effects of the Supreme Court’s Emergency Stays, 44 Harv. J.L. & Pub. Pol’y 827, 830 (2021); AliKhan House Testimony, supra note 9, at 12–13.
- ↑ See Alito, “The Emergency Docket,” supra note 10.
- ↑ There are other examples. One witness testified that the U.S. Court of Appeals for the Fourth Circuit grappled with the same problem in CASA de Md., Inc. v. Trump, 971 F.3d 220 (4th Cir. 2020). See Vladeck Testimony, supra note 8, at 10 n.30; see also Baude, Foreword: The Supreme Court’s Shadow Docket, supra note 7, at 13 (describing the Seventh Circuit’s effort in Frank v. Walker, 769 F.3d 494 (7th Cir. 2014), to discern the meaning of the Supreme Court’s stays in the earlier marriage equality cases). Cf. Alabama Ass’n of Realtors v. Dep’t of Health & Human Servs., No. 21A23, slip op. at 4 (U.S. Aug. 26, 2021) (per curiam) (explaining, in the second of two eviction moratorium cases, that the district court concluded that “the Government was unlikely to succeed on the merits, given the four votes to vacate the stay in this Court and Justice Kavanaugh’s concurring opinion” in the first case); Id. at 5 (Breyer, J., dissenting) (“Certainly this Court did not resolve the question by denying applicants’ last emergency motion, whatever one Justice might have said in a concurrence.”).
- ↑ 141 S. Ct. 1460, 1460 (2021).
- ↑ Vladeck Testimony, supra note 8, at 14.
- ↑ See, e.g., Bray Testimony, supra note 7, at 7–9, 18 (analogizing emergency rulings to preliminary injunctions and arguing that “[i]f the shadow docket works (and fails to work) in the same way as the preliminary injunction, then we want to tamp down the precedential effects, not ramp them up”).
- ↑ See, e.g., Vladeck Testimony, supra note 8, at 22–26.
- ↑ Id.
- ↑ One defender of the Court’s use of emergency orders explained that “there does not appear to be a need for either vote tallies, or the identities of the Justices who voted to grant or deny a petition, to be withheld from the public.” Morley House Testimony, supra note 46, at 3.
- ↑ See Vladeck Senate Testimony, supra note 33, at 27 (critiquing the Court’s order in Whole Woman’s Health v. Jackson, 141 S. Ct. 2494 (2021), which articulated the standard four-part test for relief and concluded that the applicants failed to “me[e]t their burden,” but did not explain how the Court weighed the four factors (or whether it deemed some factors irrelevant in the absence of a sufficient showing on the merits)). For a response, see
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