Justice Barrett’s Shadow Docket Policy: Do The Opposite Of Whatever The Fifth Circuit Did

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Forget Doe v. Mills. Justice Barrett will grant relief on the shadow docket when the Fifth Circuit steps out of line.

Josh Blackman |

Garland v. Vanderstok presented a challenge to the “Frame or Receiver” rule. (The press has dubbed it the “Ghost Gun” regulation.) The district court vacated the rule, and the Fifth Circuit denied a stay. The Solicitor General then petitioned for a stay of the lower-court ruling on the Supreme Court’s emergency docket. Circuit Justice Alito entered a temporary administrative stay. When that time expired, Circuit Justice Alito extended the administrative stay for another four days, until Tuesday, August 8. What did this shadow docket delay mean? On Sunday, I observed that the extension was designed to allow dissenters to prepare a written dissent, or to allow more time for a majority to coalesce.

On Tuesday, the Supreme Court stayed the lower court’s ruling. The vote was 5-4, with Chief Justice Roberts and Justice Barrett in the majority. Justices Thomas, Alito, Gorsuch, and Kavanaugh noted their dissent, but they did not prepare a dissent. The four-day extension was apparently not granted to allow the dissenters time to prepare a dissent. (It is possible a draft dissent was circulated but was never published.) Rather, it seems the purpose of the extension was to try to cobble together a fifth vote to deny a stay. But a fifth vote was not to be had. Why? Because Justice Barrett declined to cast that vote.

Now Justice Barrett has told us that we should “read the opinion” to understand the Court’s shadow docket rulings. But there was no analysis here. Just an unsigned order with no analysis.

What should we make of Justice Barrett’s decision here? Well, by my count, since Doe v. Mills in October 2021, Justice Barrett has (likely) voted to grant or deny a stay on the shadow docket six times, where certiorari before judgment was not granted. (I have a few caveats noted below). Those six cases are Austin v. U.S. Navy Seals 1-26 (likely granting stay), NetChoice v. Paxton (vacating stay), United States v. Texas (granting stay), FDA v. Alliance for Hippocratic Medicine (likely granting stay), Danco Laboratories v. Alliance for Hippocratic Medicine (likely granting stay), and now Garland v. Vanderstok (granting stay).

All six cases share something in common: Justice Barrett did the opposite of whatever a conservative Fifth Circuit panel did. When the Fifth Circuit granted a stay, Justice Barrett vacated the stay. When the Fifth Circuit granted an injunction, Justice Barrett stayed the injunction. And all of those Fifth Circuit panels included well-known conservative jurists. Indeed, the first three cases were presided by Edith Jones, whom I’ve described as the conservative lodestar of the Fifth Circuit.

By my count, with a few caveats, since Doe v. Mills, Justice Barrett has not granted shadow docket relief on any application from any other circuit. I am omitting Glossip v. Oklahoma and Mountain Valley Pipeline v. Wilderness Society, as no dissents were noted, and it is not feasible to count unrecorded dissents. And cert before judgment was granted in Arizona v. Mayorkas and Department of Education v. Brown.(Please e-mail me if I am missing a case).

Meanwhile, Justice Kavanaugh, who joined the Doe v. Mills concurrence, voted with Justices Thomas, Alito, and Gorsuch in United States v. Texas and in Garland v. Vanderstock. I don’t think there is much point parsing Doe v. Mills further. (I wrote about Barrett’s concurrence in Mills here and here). If Justice Barrett thought there was some reason to grant a stay in Vanderstock, she could have told us. But she said nothing–even with an extra four days to think about it. Doe v. Mills was simply a restatement of the defining feature of Justice Barrett’s jurisprudence: caution. And especially cautious where the Fifth Circuit steps out of line.

Progressives should be grateful that the Supreme Court is not the Fifth Circuit.

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