As I write this post on Wednesday evening, the vote on the stay in Moyle v. United States seems to be 6-3. Or at least this was the vote on May 23, 2024. Of course, things could have changed. Indeed, the votes may be different when this case is released between now and the end of the term. And, applying Dobbs leak logic, perhaps the release was designed to lock in votes. Who knows? But for now, I'll presume that the opinion remains unchanged.
The most important opinion here is from Justice Barrett. She is the Court's center. And, as I've said before, she seems to still be figuring stuff out on the job. Her Moyle concurrence expresses open regret to granting certiorari before judgment and a stay–not just because the facts on the grounds have changed, but that the Court accelerated the process when it shouldn't have. She also seems mad at Idaho for (as she sees it) exaggerating the justification for the stay.
I think we've now seen yet another evolution in Justice Barrett's approach to the emergency docket. In Roman Catholic Diocese, she was the fifth vote to enjoin New York's lockdown law. (Remember COVID?) But she later retreated from that standard. In Does v. Mills, she indicated she would only grant relief if a case was "cert worthy." And when Barrett is the fourth vote for cert, she gets to define what cert-worthy means! More recently, in Labrador v. Poe, she joined Justice Kavanaugh's concurrence, which said emergency relief should be granted primarily based on the likelihood of success on the merits. That opinion also downplayed the importance of "irreparable harm." Kavanaugh wrote:
