U.S. Supreme Court Justice Sonia Sotomayor called out her conservative colleagues on the bench for increasingly issuing stays which favor their ideological fellows.
“Yet again, this Court intervenes to grant a stay pending appeal, in this case less than two weeks before the Court of Appeals for the Ninth Circuit is poised to hear an expedited appeal on a preliminary injunction entered by the District Court,” Sotomayor’s dissent–joined by Justice Ruth Bader Ginsburg–begins.
The underlying case concerns a dispute between Idaho Governor Brad Little, a Republican, and a non-partisan group promoting a ballot petition to increase K-12 public school funding.
Such measures need a certain number of valid signatures to be placed on a state’s general election ballot, and the Coronavirus (COVID-19) pandemic has made in-person signature-gathering a dangerous proposition. A district court allowed the group to accept petitions online, but Gem State Republicans were keen to stop that and appealed directly to the Supreme Court–bypassing the appeals court procedure and gifting a win to the measure’s opponents without discussing the actual merits of the case whatsoever.
The implications of Thursday’s stay are decidedly dire for the pro-public education group due to the timelines all the parties are facing.
The stay granted today puts a halt to their signature-collection efforts, meaning that even if respondents ultimately prevail on appeal, it will be extremely difficult, if not impossible, for them to collect enough qualifying signatures by any reasonable deadline for the November ballot. In other words, the delay occasioned by this Court’s stay likely dooms to mootness respondents’ First Amendment claims before any appellate court has had the chance to consider their merits (and, indeed, before this Court has had the chance to consider any potential petition for certiorari).
“Although an applicant seeking a stay pending appeal ‘has an especially heavy burden,’ this Court has begun to grant such stays with notable frequency,” the hard-charging dissent continues to say through a footnote. “It is beginning to look like such an applicant has nearly no burden at all.”
Indeed, such stays have been a common product from the Roberts court during the Trump era.
President Donald Trump‘s White House has been remarkably adept at obtaining stays from the nation’s high court to neutralize left-leaning lower court orders. The effect has been a continuance of the Trump administration policies signed off on by the nation’s conservative justices without an actual assessment of the legal merits. Such stays hold for at least as long as those often lengthy legal controversies make their way back to the high court–oftentimes months or even years later.
“SCOTUS has been throwing it out like candy lately (especially to the Trump administration),” noted legal journalist Mark Joseph Stern.
The frequency and nature of the administrative stays granted to conservative litigants have prompted considerable controversy and reputational damage to the Supreme Court.
The dissent ends with just such an admonition and warning:
Today, by jumping ahead of the Court of Appeals, this Court once again forgets that it is “ ‘a court of review, not of first view,’ and undermines the public’s expectation that its highest court will act only after considered deliberation. I respectfully dissent from the grant of stay.
Chief Justice John Roberts–who wrote a concurrence attempting to defend himself against Sotomayor’s charges–has been overwhelmingly receptive to both entertaining and granting such administrative interventions, presumably due to reasons of ideological harmony with conservative policy interests his stays often favor.
“[T]he dissent is wrong to criticize this Court for supposedly offering the ‘first view’ on this matter,” Roberts complained.
Legal experts were none too impressed with Roberts’ reasoning.
Roberts writes — on behalf of himself and Justices Alito, Gorsuch, and Kavanaugh — that he believes Idaho met the standards for a stay — and swipes at Sotomayor’s dissent by conflating stay review and merits review, which was her point. pic.twitter.com/jHbpAqVNHq
— Chris Geidner (@chrisgeidner) July 30, 2020
[image via Allison Shelley/Getty Images]
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