On Thursday, the Supreme Court vacated stays entered by the U.S. Court of Appeals for the Fourth Circuit against the Mountain Valley Pipeline. The brief order was issued without any noted dissent. It reads:
The application to vacate stays presented to The Chief Justice and by him referred to the Court is granted. The July 10, 2023 stay orders of the United States Court of Appeals for the Fourth Circuit, case Nos. 23-1592 and 23-1594, and the July 11, 2023 stay order of the Fourth Circuit, case No. 23-1384, are hereby vacated. Although the Court does not reach applicant’s suggestion that it treat the application as a petition for a writ of mandamus at this time, that determination is without prejudice to further consideration in light of subsequent developments.
The Supreme Court’s willingness to intervene in this way at the request of a private party is unusual, but so were the Fourth Circuit’s stays. As I noted here, the Fourth Circuit entered the stays even though Congress had clearly removed the court’s jurisdiction to continuing hearing challenges to the controversial project. And even assuming the Fourth Circuit had jurisdiction to consider the stay requests, it is hard to understand how the court’s judges ever concluded that those who sought stays against the pipeline ever had a chance of success on the merits (let alone the likelihood of success necessary for such relief). Dan Farber makes a similar point here.
This episode is a useful reminder that some of the increase in activity on the Supreme Court’s “shadow docket” is not wholly of the Court’s own making. Over the past several years, there has been an increase in the award of extraordinary or unjustified relief by lower courts to which the justices have been responding. This is not the only factor that has led to an increase in activity on the “shadow docket,” but it is an important factor that should not be overlooked.
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