Do The Opposite Of Whatever The Fifth Circuit Did
Garland v. Vanderstok introduced a problem to the “Body or Receiver” rule. (The press has dubbed it the “Ghost Gun” regulation.) The district court docket vacated the rule, and the Fifth Circuit denied a keep. The Solicitor Basic then petitioned for a keep of the lower-court ruling on the Supreme Courtroom’s emergency docket. Circuit Justice Alito entered a brief administrative keep. When that point expired, Circuit Justice Alito prolonged the executive keep for an additional 4 days, till Tuesday, August 8. What did this shadow docket delay imply? On Sunday, I noticed that the extension was designed to permit dissenters to organize a written dissent, or to permit extra time for a majority to coalesce.
On Tuesday, the Supreme Courtroom stayed the decrease court docket’s ruling. The vote was 5-4, with Chief Justice Roberts and Justice Barrett within the majority. Justices Thomas, Alito, Gorsuch, and Kavanaugh famous their dissent, however they didn’t put together a dissent. The four-day extension was apparently not granted to permit the dissenters time to organize a dissent. (It’s potential a draft dissent was circulated however was by no means revealed.) Fairly, it appears the aim of the extension was to attempt to cobble collectively a fifth vote to disclaim a keep. However a fifth vote was not available. Why? As a result of Justice Barrett declined to forged that vote.
Now Justice Barrett has instructed us that we should always “learn the opinion” to know the Courtroom’s shadow docket rulings. However there was no evaluation right here. Simply an unsigned order with no evaluation.
What ought to we make of Justice Barrett’s choice right here? Effectively, by my depend, since Doe v. Mills in October 2021, Justice Barrett has (doubtless) voted to grant or deny a keep on the shadow docket six instances, the place certiorari earlier than judgment was not granted. (I’ve just a few caveats famous under). These six circumstances are Austin v. U.S. Navy Seals 1-26 (doubtless granting keep), NetChoice v. Paxton (vacating keep), United States v. Texas (granting keep), FDA v. Alliance for Hippocratic Drugs (doubtless granting keep), Danco Laboratories v. Alliance for Hippocratic Drugs (doubtless granting keep), and now Garland v. Vanderstok (granting keep).
All six circumstances share one thing in frequent: Justice Barrett did the reverse of no matter a conservative Fifth Circuit panel did. When the Fifth Circuit granted a keep, Justice Barrett vacated the keep. When the Fifth Circuit granted an injunction, Justice Barrett stayed the injunction. And all of these Fifth Circuit panels included well-known conservative jurists. Certainly, the primary three circumstances had been presided by Edith Jones, whom I’ve described because the conservative lodestar of the Fifth Circuit.
By my depend, with just a few caveats, since Doe v. Mills, Justice Barrett has not granted shadow docket reduction on any utility from some other circuit. I’m omitting Glossip v. Oklahoma and Mountain Valley Pipeline v. Wilderness Society, as no dissents had been famous, and it isn’t possible to depend unrecorded dissents. And cert earlier than judgment was granted in Arizona v. Mayorkas and Division of Training v. Brown.(Please e-mail me if I’m lacking a case).
In the meantime, Justice Kavanaugh, who joined the Doe v. Mills concurrence, voted with Justices Thomas, Alito, and Gorsuch in United States v. Texas and in Garland v. Vanderstock. I do not assume there may be a lot level parsing Doe v. Mills additional. (I wrote about Barrett’s concurrence in Mills right here and right here). If Justice Barrett thought there was some cause to grant a keep in Vanderstock, she might have instructed us. However she mentioned nothing–even with an additional 4 days to consider it. Doe v. Mills was merely a restatement of the defining function of Justice Barrett’s jurisprudence: warning. And particularly cautious the place the Fifth Circuit steps out of line.
Progressives needs to be grateful that the Supreme Courtroom is just not the Fifth Circuit.
