Shadow Docket Delays
On July 24, the Fifth Circuit declined to remain the district courtroom’s vacatur of the “Body or Receiver” rule. Three days later, on July 27, the Solicitor Normal filed an utility for a keep of the district courtroom’s ruling. The following day, on July 28, Circuit Justice Alito entered an administrative keep and a briefing schedule:
Order issued by Justice Alito: Upon consideration of the appliance of counsel for the candidates, it’s ordered that the June 30, 2023 order and July 5, 2023 last judgment of the USA District Courtroom for the Northern District of Texas, case No. 4:22-cv-691, are hereby administratively stayed till 5 p.m. (EDT) on Friday, August 4, 2023. It’s additional ordered that any response to the appliance be filed on or earlier than Wednesday, August 2, 2023, by 5 p.m. (EDT).
The briefing was accomplished, however no ruling got here on August 2 or 3. On August 4, Circuit Justice Alito additional prolonged the executive keep:
Order issued by Justice Alito: Upon additional consideration of the appliance of counsel for the candidates, the responses, and the reply filed thereto, it’s ordered that the keep issued on July 28, 2023, is hereby prolonged till 5 p.m. (EDT) on Tuesday, August 8, 2023.
What can we make of this four-day delay? Two broad prospects. First, a majority opinion has already coalesced–both to grant the keep or deny the keep–and the dissenters want a while to organize a dissent. Second, a majority opinion has not coalesced, and extra time is required to convention the problem. (I believe certiorari earlier than judgment could also be within the playing cards right here.)
I did a fast search of the phrase “Upon additional consideration of the appliance of counsel for the candidates, the responses, and the reply filed thereto” within the Supreme Courtroom database. This language has been used about 7 occasions to vacate a keep. However I onyl discovered two different instances the place this language was used to lengthen a keep: the mifepristone instances. Circuit Justice Alito prolonged an administrative keep of the Fifth Circuit’s ruling by seven days. And, after these seven days lapsed, the Courtroom exercised its spooky shadow docket energy, and stayed the Fifth Circuit. Why was there an extension of time? Maybe Justice Alito wanted extra time to jot down a dissent. (Justice Thomas dissented with out opinion.) Or, maybe negotiations have been in flux, and Alito was attempting to scrounge extra votes, however finally was unsuccessful. I couldn’t discover every other occasion wherein an administrative keep was prolonged with this language.
If previous is prologue, the Courtroom will keep the Fifth Circuit once more within the “Body or Receiver” case. Or, the Courtroom could also be cobbling collectively votes for cert earlier than judgment. Plus do not forget the recently-decided “Pistol Brace” case from the Fifth Circuit, which needs to be coming to the shadow docket quickly. If these instances are granted, together with Rahimi, we could have a really Fifth Circuit gun-centric time period forward of us.
