In the latest iteration of United States v. Texas, Justice Sotomayor observed that the “Fifth Circuit recently has developed a troubling habit of leaving ‘administrative’ stays in place for weeks if not months.” She cited five cases. Those same five cases were cited in the Solicitor General’s application to vacate the stay (at 15 n.3).
Would you care to guess which judges were on the panels that granted those administrative stays? Certainly is must be a super-Trumpy panel with Judges Ho, Duncan, and Wilson, right? Not exactly.
Here are the panels that granted the temporary administrative stays that Justice Sotomayor complained about:
United States v. Abbott, No. 23–50632 (85 days, from Sept. 7, 2023, to Dec. 1, 2023) (Stewart, Graves, Oldham). Petteway v. Galveston Cty., No. 23–40582 (41 days, from Oct. 18, 2023, to Nov. 28, 2023) (Jones, Higginson, Ho). Missouri v. Biden, No. 23–30445 (66 days, from July 14, 2023, to Sept. 18, 2023) (Stewart, Graves, Oldham). R. J. Reynolds v. FDA, No. 23–60037 (57 days, from Jan. 25, 2023, to Mar. 23, 2023) (King, Jones, Smith). Campaign Legal Ctr. v. Scott, No. 22–50692 (48 days, from Aug. 12, 2022, to Sept. 29, 2022)(Higginbotham, Stewart, Dennis).
Of these fives cases, Judge Stewart, a Clinton appointee, voted to grant a stay in three of them. Judge Graves, an Obama appointee, voted to grant a stay in two of them. Judge Oldham, a Trump appointee had two. Judge Jones, a Reagan appointee had two. And Judges Ho, and Smith each had one.
After these temporary administrative stays were issued, the cases were accelerated to the next available oral argument session. And in Petteway v. Galveston County, in particular, Judges Jones, Higginson, and Ho set the temporary administrative stay to expire after 15 days.
What lesson do we draw here? Judges of all stripes on the Fifth Circuit grant temporary administrative stays. I think they are doing their best to handle this torrent of emergency motions, many of which are filed by the United States and progressive groups. It is hard to make a decision in short order with limited briefing. Don’t forget–by the time a case gets to SCOTUS, there has been a full vetting below. But the circuit judge on emergency duty has a very full plate. The temporary administrative stay helps to get through the rush.
Justice Barrett raised some fair questions on how administrative stays should be granted. But neither the SG nor Justice Sotomayor have put forward any evidence that these temporary stays are being used in some sort of evasive fashion to evade the usual stay-pending-appeal standard. There is also a related point. If the District Courts in Texas are doing such crazy stuff, then the Fifth Circuit should be rewarded for granting these stays! But that sort of argument defeats the narrative.
There is no smoke here. And there is no fire. No shadows either. Justice Kagan was prudent to write her own dissent, and not join Justice Sotomayor’s dissent.
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