On Friday evening, the Supreme Court granted a complete stay of the District Court's order in Alliance for Hippocratic Medicine v. FDA. And that stay will remain in effect while the proceedings in the Fifth Circuit continue. For now, the status quo continues. Justice Thomas would have denied the application for a stay. Justice Alito dissented from the Court's decision to grant the application for a stay.
Many press outlets reported that the vote was 7-2, but we cannot be so certain. For sure, there were five votes to grant the stay. It is also possible that 1 or 2 justices would have denied the stay, but chose to not indicate their dissent. (Will Baude flagged this possibility.) The timing of the case suggests that votes may have been in flux. Originally, Circuit Justice Alito ordered that the temporary administrative stay would expire on Wednesday. But, before that deadline, the Court extended the stay until Friday. My guess is that there were potentially 3 or 4 votes for at least a partial stay, but Alito could not count to 5. Instead, the Court set the deadline for Friday night, so Alito could prepare his dissent. And, that release would ensure the order came after the close of business, when people would not be paying attention. (The Court has often issued emergency orders late at night on a Friday, after the news cycle is over.)
The Court did not issue any explanation for the stay. Perhaps five Justices thought that the Plaintiffs lacked standing for some, or all of their claims. Maybe five Justices thought that some of the claims were barred by the statute of limitations. Maybe five of the Justices thought all of the APA claims were unmeritorious. Maybe five of the Justices thought that the Comstock Act claims were unmeritorious. Maybe five Justices thought that the threat of irreparable injury to the government, and to the public, was so high that a stay was warranted while the litigation proceeded. But who knows? As we have been told incessantly, when the Supreme Court issues an order on the emergency docket, we do not know the Court's reasoning.
