THE PRECEDENTIAL EFFECTS OF THE SUPREME COURT'S EMERGENCY STAYS.

• Author: McFadden, Trevor N.

TABLE OF CONTENTS INTRODUCTION I. STAY PROCESS AND RULES A. The Basics B. The Standard of Review II. Assessing a Stay's Precedential Effects A. Precedent Defined B. Factors to Consider 1. Single Justice or Full Court 2. The Type of Underlying Merits Dispute 3. The Reasoning or Explanation Offered C. Objections Considered D. A Note on Concurrences, Dissents, and Statements Respecting Stay Decisions CONCLUSION APPENDIX: NON-ADMINISTRATIVE SUPREME COURT STAYS (2015-AUGUST 2020) INTRODUCTION

The Supreme Court of the United States makes two types of decisions with far-reaching effects on American life. We are all familiar with the first type. In keeping with the Court's "paramount role" as the nation's "supreme federal appellate" tribunal, these decisions are rulings on the merits of a case and each constitutes the culmination of a petition for certiorari of final decisions made by lower federal or state supreme courts. (1)

But, with "notable frequency" in recent years, the Supreme Court has issued consequential decisions of a different kind: emergency relief staying the effect of a lower court ruling. (2) Stays are part of the Court's so-called "shadow docket," the important but understudied orders and decisions issued without oral argument and with little briefing. (3) While the immediate impact of these stays may be self-evident, the Supreme Court's pronouncements are often less important for their effects on the specific cases before it than the precedent they set for lower courts in future cases.

How should lower courts treat these stay decisions? This question is now particularly pressing. By all appearances, we are in a new era of litigation, in which securing emergency interim relief can sometimes be as important as, if not more important than, an eventual victory on the merits. Consider the types of cases that have resulted in emergency relief from the Supreme Court during the past few terms. These cases "follow[] a now-familiar pattern." (4) Groups of plaintiffs file high-profile lawsuits challenging an Executive Branch action in multiple district courts across the country, often securing from at least one court a judgment granting them broad equitable relief, such as a nationwide injunction. (5) The government then seeks a stay of the order, first from the lower courts and, if unsuccessful there, from the Supreme Court.

Lower courts have just begun to grapple with this issue. In August 2020, the Fourth Circuit considered what effect, if any, the Supreme Court's decision to grant a stay of preliminary injunctions preventing enforcement of the Trump Administration's "public charge" rule should have on the court's evaluation of the rule. (6) Writing for the majority, Judge Wilkinson suggested that while the Fourth Circuit "may of course have the technical authority" to disregard the Supreme Court's stay, "every maxim of prudence suggests that we should decline to take [that] aggressive step." (7) Judge Wilkinson added that the decision to grant a stay "gives us a window into the Supreme Court's view of the merits," and that the Fourth Circuit "should not cultivate the appearance of denying the Supreme Court action its obvious and relevant import." (8)

Judge King disagreed. In dissent, he argued that "assigning such significance to perfunctory stay orders is problematic," and that treating a Supreme Court stay order as controlling would obviate the need for an intermediate appellate court to consider the merits of an issue where the Court has granted such a stay. (9)

Beyond this Fourth Circuit case and the handful of examples we discuss below, the judiciary has said little else about the possible precedential effects of Supreme Court stays. And the issue has largely escaped academic review, perhaps because it is only recently that the Court's shadow docket has so frequently touched on hot-button topics.

Two articles have considered the authority of individual Justices to grant stays, (10) but neither one focused on the precedential weight such decisions should be accorded in the lower courts. Others have considered the justification for stays more generally, (11) but again there was little discussion of the impact of stays on future cases. A student note from the early 1990s considered the weight Supreme Court stays should be accorded by lower courts, (12) but that article was limited to the unusual milieu of capital punishment cases. And its conclusions may be undermined by the Court's recent practice, discussed below, of ruling on stay applications en banc rather than through an individual Justice.

This Article seeks to fill this gap in the literature about the Supreme Court's shadow docket and further the broader conversation regarding the role of precedent in the American justice system. (13) We argue that the Court's stay decisions are sortable into the following categories, representing a spectrum of precedential force: those that have little value for lower courts, those that are useful as persuasive authority, and those that are authoritative with respect to future cases considering the same legal questions, (14) even if they might "have considerably less precedential value than an opinion on the merits." (15) At the least, stays in the third category should be treated as strong signals from the Court about how to resolve an ambiguity in the law. (16)

The first category includes denials of stay applications and decisions issued by a single Justice without any opinion. Stays with persuasive authority include those granted by a single Justice who issues an opinion explaining his or her views on the merits of the case. Concurrences in, dissents from, and statements respecting a decision to grant a stay also fall into this second category. The third category includes stay grants in which a majority of the Supreme Court has clearly indicated that the applicant is likely to succeed on the merits of the question(s) presented.

In the pages that follow we explain the reasons for this categorization and offer examples of stays we believe belong in each group. Part I of the Article reviews the Supreme Court's authority to grant emergency stays, how they work, and the standard of review the Court applies. Part II elaborates on our proposal for how lower courts should think about Supreme Court stays: courts should evaluate three factors to determine what effect to give an emergency stay decision. These include (1) whether the stay was issued by a single Justice or by the full Court; (2) the type of underlying merits dispute; and (3) whether the stay decision explains the Court's reasoning or provides a clear indication of the Court's view of the merits. These factors help answer a single, relatively straightforward question: can the lower court say with confidence that a majority of the Supreme Court has expressed a view on the merits of the stay applicant's case? When the answer to that question is "yes," the lower court should defer to that view or explain why deference is unwarranted.

Late last year, the Supreme Court itself provided a strong indication that shadow docket decisions can have precedential effects. Consider Roman Catholic Diocese of Brooklyn v. Cuomo, (17) which involved a church's emergency application for injunctive relief from an Executive Order issued by New York Governor Andrew Cuomo. (18) The Executive Order imposed "very severe restrictions on attendance at religious services" in parts of New York in response to the COVID-19 pandemic. (19) The church argued that the restrictions "treat houses of worship much more harshly than comparable secular facilities," and that they therefore violate the First Amendment's '"minimum requirement of neutrality' to religion." (20)

The Court granted the church's application for emergency relief. (21) In a three-page per curiam opinion followed by another twelve pages of concurrences and dissents, the Court held that the church was likely to succeed on the merits of its First Amendment claim. (22) The Court's opinion found that the church "made a strong showing" that the Executive Order "cannot be viewed as neutral because [it] single[s] out houses of worship for especially harsh treatment." (23)

The Court noted that, under the Executive Order, "while a synagogue or church may not admit more than 10 persons" within so-called "red zones," "businesses categorized as 'essential' may admit as many people as they wish." (24) The list of essential businesses included "acupuncture facilities, camp grounds, garages" and a wide variety of other enterprises. (25) More strikingly, in so-called "orange zones," the Executive Order required houses of worship to restrict attendance to twenty-five people, even though non-essential businesses in these zones were free to decide for themselves how many persons to admit. (26)

The Court explained that though "[s]temming the spread of COVID-19 is unquestionably a compelling [state] interest," it is "hard to see how the challenged regulations can be regarded as 'narrowly tailored/" as they are "far more restrictive than any COVID-related regulations" the Court had previously considered. (27) It therefore enjoined New York from enforcing the Executive Order. (28)

Despite its emergency posture, lack of oral argument, and truncated briefing schedule, Diocese of Brooklyn has been quickly recognized as a watershed decision. (29) The Supreme Court and other courts have cited the opinion over one hundred times. (30) The Ninth Circuit, in striking down similar COVID-related regulations in Nevada, found that Diocese of Brooklyn "compels the result in this case." (31)

And, critically, the Court vacated other lower court decisions and remanded them for further consideration in light of its Diocese of Brooklyn opinion. (32) These "GVR" orders, (33) typical after the Court issues a major decision with implications for other pending cases, would be nonsensical if Diocese of Brooklyn was "good for one ride only" and irrelevant...