Yeshiva University Loses On The Shadow Docket, Wins On The Penumbra Docket
Each new entry on the Supreme Court’s emergency docket brings twists and turns. The latest lesson comes in Yeshiva University v. YU Pride Alliance. On June 24, the New York Supreme Court (the trial court) entered a permanent injunction, requiring YU to recognize the LGBT club. On August 23, the New York Appellate Division (the intermediate court) denied a motion to stay the trial court’s permanent injunction. On August 25, the New York Appellate Division denied an emergency motion for leave to appeal the denial of the stay. That same day, the New York Court of Appeals (the state court of last resort) denied an emergency motion for leave to appeal the denial of the stay. Four days later, on August 29, YU filed an emergency application for a stay with the Supreme Court. This move, as I noted earlier this month, should have come as no surprise. YU’s counsel, the Becket Fund, pursued every possible path in the lower court before going upstairs–or did they? (Disclosure: I’ve collaborated with Becket on several matters over the years.)
On September 14, a five-member majority of the Supreme Court issued an unsigned order, suggesting that YU could make two more moves in the New York judiciary.
The application is denied because it appears that applicants have at least two further avenues for expedited or interim state court relief. First, applicants may ask the New York courts to expedite consideration of the merits of their appeal. Applicants do not assert, nor does the Appellate Division docket reveal, that they have ever requested such relief. Second, applicants may file with the Appellate Division a corrected motion for permission to appeal that court’s denial of a stay to the New York Court of Appeals, as the Appellate Division clerk’s office directed applicants to do on August 25. Applicants may also ask theAppellate Division to expedite consideration of that motion.
Because YU failed to make those moves, the Court denied relief.
Justice Alito dissented, joined by Justices Thomas, Gorsuch, and Barrett. They were skeptical either of these paths could even work. And they repeated the charge of cowardice–that the Court is unwilling to act when doing so could occasion controversy.
Second—and more to the point—the majority seems to think that it is still possible for the University to persuade the Court of Appeals to grant a stay. Of course, the Court of Appeals has already denied Yeshiva’s application for interim relief, but the majority interprets a case comment written by a court clerk employed by the Appellate Division to mean that the Court of Appeals may give Yeshiva a second bite at the apple notwithstanding its previous denial. That interpretation is dubious, yet the majority seizes upon it as dispositive. I doubt that Yeshiva’s return to state court will be fruitful, and I see no reason why we should not grant a stay at this time. It is our duty to stand up for the Constitution even when doing so is controversial.
When I first read the Supreme Court’s per curiam order, I immediately checked the Respondents’ brief to
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