Last week, the Supreme Court used its emergency docket to review to cases from two lower courts' emergency docket. The postures were different but the upshot was clear: the United States Supreme Court thought that the New York Court of Appeals and the Ninth Circuit did not properly exercise its discretion with emergency appeals. As I wrote, "inferior courts on both coasts used their emergency dockets, and the Supreme Court reversed both rulings."
Despite all of the criticism of the Supreme Court's emergency docket, we should not forget that lower courts use their emergency docket all the time. Why should lower courts be free to rule on their emergency docket but not the Supreme Court? Indeed, the failure of lower courts to grant emergency stays necessarily leads to emergency Supreme Court appeals.
The latest episode from the Ninth Circuit illustrates this precedent. The Ninth Circuit, as matter of practice, will grant an administrative stay to block the removal of every alien. The merits are irrelevant. The de facto rule is that removals cannot proceed. And, as with any administrative stay, there is no explanation or reasoning. The Ninth Circuit issues these orders from the shadow docket. These stays, no matter how frivolous, can last for months or years. This practice dwarfs any concerns that Justice Barrett had with administrative stays from the Fifth Circuit.
