Yesterday, I wrote about Libby v. Fectau. In this case, the Maine Speaker of the House stripped a member of her right to vote--and ability to represent her constituents. Libby filed an emergency application on Monday, April 28 with Justice Jackson. The application explained that the Maine legislative session begins on May 6. Unless a stay is granted, votes will be held, but Libby will be unable to vote. That danger is completely irreparable. Abrego Garcia may one day be brought back to the United States. Probationary employees can be rehired. Cancelled funds can later be disbursed. But the Maine legislature will not hold a "do-over" vote. Even if the Court is not inclined to grant relief, one would think that the Circuit Justice should at least have the case fully briefed to permit a prompt resolution of the case. But Justice Jackson had other plans.
Today, May 1, three days after the application was filed, Justice Jackson called for a response. And she gave the respondents a full week to reply. She set the deadline for May 8--two days after the Maine legislative session begins. Even assuming the full Court promptly rules on the matter, there will be injuries that cannot be remedied.
Justice Jackson has been very critical of the shadow docket rulings. She referred to standing as a "shiny" object, and referred to the United States as just another party. On the full court, she has but one vote. But as Circuit Justice, she has the only vote. I wonder if Justice Jackson is putting her views on the shadow docket into play. In other words, she can call for a response when she finds it appropriate to do so, and will not follow the deadline requested by the Applicants. In doing so, she can frustrate the ability of the full Court to grant emergency relief.
