SCOTUS Grants Stay In Abortion Pill Case

Justice Alito granted an "administrative stay" that ended at 11:59PM on Wednesday for the abortion pill cases and then extended it to that time Friday night. We got a decision about six hours early.

Inside baseball alert: an administrative stay is a brief hold, in this case, to allow a justice (each justice oversees one or more circuits of appeals) or the Supreme Court as a hold to consider a request.  It is often a nothingburger with nothing being done.  Here, somewhat surprisingly, a stay was granted.

The question is to read the tea leaves to determine why more time was granted. The additional time suggested that the end result would be more than what happened. A stay with one justice writing a few pages. The actual stay is boilerplate. Sometimes, the language is carefully crafted with some compromise language or special instructions. 

Here? The stay of the lower court of appeals opinion (again, better than the district court opinion, but only so much) was granted pending disposition of the appeal.  Nothing special there.  Of course, perhaps, one or more justices wanted more.  Maybe, they wanted to wait until the Friday conference to finalize things.  Maybe, others wrote more but held back in the end.

(One suggestion was that the liberals would have disposed now on standing but didn't ultimately have the votes.) 

Two justices dissented on the record (again, for me, that's it -- silence means to consent to me). Thomas simply noted he would not have granted the stay.  Alito wrote about three pages.  It was a mixture of whining (about criticism of the shadow docket) and an argument that there was no compelling need for a stay.  

He in part argued (as liberals like Kate Shaw in that op-ed I talked about) it is far from clear the FDA would enforce anything as the cases were pending.  He tossed in a suggestion the government was gaming the system too (given how conservatives do that on a regular basis, that is rich).  

I don't really think Alito is an honest broker here, but from someone else, it might be a somewhat credible argument.  Note that the majority didn't explain why a stay, which in theory should be an extraordinary remedy, was necessary.  So, stones/glasshouses too.  Again, I am not saying Alito is right overall (he is likely exaggerating how minor the argument for a stay is) and this suggests his overall aggrieved tone:

Contrary to the impression that may be held by many, that disposition would not express any view on the merits of the question whether the FDA acted lawfully in any of its actions regarding mifepristone. 

This is not the first time Thomas stayed quiet about his reasons and did not join in Alito's whining.  The bottom line, this is a bit of sanity, which underlines how bad the lower courts' rulings are. And, before we breathe freely, this just delays things until a final judgment by the lower court. 

A stay in some fashion implies the lower court misstepped somehow but without any explanation of how exactly is unclear. The shadow docket strikes again.  To be continued.

The bottom line here is that the ruling here is sensible if warranting a bit more explanation.  The Supreme Court, for now at least, seems sane. After the Dobbs decision, many observers noted this is not the battle they or their supporters want to fight.  SCOTUS is not the totally knee-jerk affair some make it out to be.  They pick their spots.  

Let's not grant them too much kudos here as noted regarding Roberts maybe deciding to accept the Senate Judiciary Committee's request (see last entry).  The Dobbs ruling is a major reason why we are here as well as past actions involving agencies and lower court happenings.  

Which are encouraged by no explanation orders like this too. What exactly is wrong here?  The shadow knows.  And, again, we are not at the end of this particular affair.*  

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Meanwhile, no other Friday orders, and no announcement of future opinion days.  There will be orders on Monday and one more set of oral arguments. No more executions this month.

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There was a potentially important oral argument this week regarding the rules for determining true threats.  It has split some usual allies, splitting a strong free speech approach and recognition of limits.  I support free speech even at times when some don't but have seen some overly dismissive comments when it comes to harassment and threats. 

One red flag in the oral arguments was a mockery of the problem at hand, which was more notable among the male justices.  Barrett, for instance, played Prof. Barrett regarding hypos but when the advocate made a joking reference to being told he would "die" or such, she was a bit less jokey about telling him hopefully the context showed it was not actually a threat.  

And, Sotomayor did show some concern about intent but did not do the stuff the link addressed. 

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* President Biden is correct:

The stakes could not be higher for women across America. I will continue to fight politically-driven attacks on women’s health. But let’s be clear – the American people must continue to use their vote as their voice, and elect a Congress who will pass a law restoring the protections of Roe v Wade.

Our rights are in abeyance.  (Quote added.)