In Trump v. United States (the immunity case), the Supreme Court ordered the D.C. Circuit to "continue withholding issuance of [its] mandate" until the Supreme Court issues a judgement. At Lawfare, Jack Goldsmith (no relation to Jack Smith) and
Tom Koenig offer a wonky breakdown of the Court's order. Here, I'd like to flag one aspect of the per curiam order that bears on a topic of recent interest: unexplained stays that avoid the four-factor test from Nken v. Holder. Goldsmith and Koenig write:
We cannot find any square precedent for the Supreme Court's order to a lower court to withhold the issuance of that court's mandate. (Given the difficulty of researching obscure emergency orders, we very well may have missed a precedent.) The Court has withheld issuance of its own mandates. It has "stayed" the issuance of lower federal courts' and state courts' mandates. And it has denied requests to "stay" the issuance of a lower court's mandate. But our research has not turned up a past instance of the Supreme Court directing a lower court to "withhold issuance" of its own mandate.
The first puzzle here is whether this order differs from a stay. The Supreme Court seemed to go out of its way to indicate that it was not issuing a stay when it used the language of "withholding the mandate"; when it ruled that Trump's stay request was moot; and, perhaps, when it stated that it was not implying anything about the merits, which a stay order typically does, since at least a "fair prospect" that the Court will reverse the judgment below, and perhaps even a "likelihood of success on the merits," is needed for a stay. (Both the precise standard for a stay in the Court and whether there is a meaningful difference among the potential standards are unclear; but some merits consideration is typically involved under all the relevant standards.)
Yet the Court's order appears to have the same practical effect as a stay of the mandate: The D.C. Circuit's order cannot go into effect, pending the Supreme Court's review. As the Court explained in Nken v. Holder, an appellate court's stay of a lower court's order temporarily "hold[s]" that order "in abeyance pending review." Here the order the Supreme Court held in abeyance is the D.C. Circuit's order affirming the district court. The D.C. Circuit had already stayed that order by directing the clerk of the court to withhold its issuance temporarily. (As noted above, the D.C. Circuit treats "withhold orders" as stays.) By directing the D.C. Circuit to continue withholding its order affirming the district court, the Supreme Court achieved the same result as a stay.
The Supreme Court did not grant a stay of the D.C. Circuit's judgment. The Supreme Court did not consider the four-factor test from Nken v. Holder. The Supreme Court expressly did not opine on the merits.
