SCOTUS Takes A Holiday From The Separation of Powers On The Hampton Dellinger Jitney
On Friday evening (after I signed off), the Supreme Court issued a terse statement in Bessent v. Dellinger. The Court didn’t grant, or deny, the government’s motion to vacate the TRO. Instead, it did nothing. The Court simply ruled that the government’s application “is held in abeyance until February 26, when the TRO is set to expire.” This document is not exactly an order. I’m not even sure what to call it. It’s basically a status update. BRB if you will.
I searched the Supreme Court database on Westlaw for similar updates and couldn’t find anything on point. The Court will sometimes hold a petition in abeyance while deciding another case. Ardoin v. Robinson (2022) was such a case. When a petition has already been granted, and the government switches positions, the Court will hold the case in abeyance to figure out how to proceed. The Court took this step in Arkansas v. Gresham (2021) and Becerra v. Gresham (2021). But that is putting ongoing proceedings in abeyance. Here, the Court puts in abeyance an application. And in some cases, where the Court has granted an administrative stay that will expire on a certain date, the Justices will extend that stay. These shadow docket delays occurred in the “Frame or Receiver” case and the Mifepristone case. (Remember, different rules apply to the Fifth Circuit.) But again, that is putting in abeyance an existing stay.
How does a court hold a motion in abeyance? There is no deadline by which the Court must rule. This document reminds me of a district court issuing an unappealable administrative stay of an executive order. That’s not a thing. The courts are really starting to get creative.
I’ve been unable to find any case where the Solicitor General sought emergency relief by a date certain, the Court declined to grant that relief by the requested date, and instead the Court issued an order to simply hold the government’s application in abeyance. If anyone has seen such an order, pleases email me.
The votes in Dellinger are a bit unusual. Justices Sotomayor and Jackson would have denied the government’s application outright, and did not vote to hold the application in abeyance. Justices Gorsuch and Alito noted their dissent from the order holding the application in abeyance. That means there were five votes to hold the case in abeyance: Chief Justice Roberts, Justice Thomas, Justice Kagan, Justice Kavanaugh, and Justice Barrett. I predicted that the government would lose by a 5-4 vote, with Justices Thomas, Alito, Gorsuch, and Kavanaugh in dissent. I was, as usual, wrong.
What’s going on here? Obviously, there was some sort of compromise afoot. I would suspect that Justice Thomas, and probably Justice Kavanaugh, agrees with Judge Katsas on the merits. But that only gets to four votes. Perhaps to forestall the Court denying the government’s motion now, they agreed to join the Chief to simply do nothing for the time being. On February 26, when the TRO expi
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