On Thursday, the Supreme Courtroom vacated stays entered by the U.S. Courtroom of Appeals for the Fourth Circuit in opposition to the Mountain Valley Pipeline. The temporary order was issued with none famous dissent. It reads:
The appliance to vacate stays offered to The Chief Justice and by him referred to the Courtroom is granted. The July 10, 2023 keep orders of the US Courtroom of Appeals for the Fourth Circuit, case Nos. 23-1592 and 23-1594, and the July 11, 2023 keep order of the Fourth Circuit, case No. 23-1384, are hereby vacated. Though the Courtroom doesn’t attain applicant’s suggestion that it deal with the appliance as a petition for a writ of mandamus right now, that dedication is with out prejudice to additional consideration in gentle of subsequent developments.
The Supreme Courtroom’s willingness to intervene on this manner on the request of a personal get together is uncommon, however so had been the Fourth Circuit’s stays. As I famous right here, the Fourth Circuit entered the stays despite the fact that Congress had clearly eliminated the court docket’s jurisdiction to persevering with listening to challenges to the controversial undertaking. And even assuming the Fourth Circuit had jurisdiction to contemplate the keep requests, it’s exhausting to know how the court docket’s judges ever concluded that those that sought stays in opposition to the pipeline ever had an opportunity of success on the deserves (not to mention the chance of success crucial for such aid). Dan Farber makes the same level right here.
This episode is a helpful reminder that a few of the enhance in exercise on the Supreme Courtroom’s “shadow docket” isn’t wholly of the Courtroom’s personal making. Over the previous a number of years, there was a rise within the award of extraordinary or unjustified aid by decrease courts to which the justices have been responding. This isn’t the one issue that has led to a rise in exercise on the “shadow docket,” however it is a crucial issue that shouldn’t be ignored.
