Justice Barrett's concurrence in McCraw made it less likely that lower courts will grant administrative stays before a merits panel holds oral argument. And, it turns out, the administrative stays from the Fifth Circuit were not coming from the Court's trumpiest judges. Before the ink even dried on the Supreme Court's shadow docket order, the Fifth Circuit panel (Richman, Oldham, Ramirez) swooped into action. First, on Tuesday afternoon, the panel set oral argument for Wednesday morning (it is ongoing as I type). This oral argument is only on the question of whether a stay should be granted pending appeal. A merit-stage oral argument is set for April 3. Second, the panel dissolved the temporary administrative stay over Judge Oldham's dissent. I suspect the writing is on the wall, and this panel will not grant a stay pending appeal. It is possible the en banc court can override this decision. Chief Judge Richman, according to my 2022 count, is far from the median voter on the Fifth Circuit. But the Fifth Circuit may let this one linger for regular en banc review.
Going forward, I'm not sure if Justice Barrett's concurrence will have the effect that she intended. Let's spin out two scenarios. First, where a district court judge in Austin rules against Texas. Second, where a district court judge in Amarillo rules against the federal government. In both scenarios, if Justice Barrett's approach is followed, the courts are less likely to enter administrative stays for any lengthy duration. And, the average Fifth Circuit panel would probably grant a stay in the case from Austin, and deny the stay in the case from Amarillo. What is the effect? More emergency applications arriving at the Supreme Court filed by the Department of Justice. Yes, in an attempt to tighten the screws on the shadow docket, Justice Barrett likely made the shadow docket even more active.
What will the result be? Ironically enough, Circuit Justice Alito will be forced to enter a never-ending series of administrative stays that are extended as needed to digest complicated cases, which is what happened in McCraw. The Justices will be in the same position as the Fifth Circuit judges who are struggling to handle the torrent of emergency litigation. The shadow docket giveth, and the shadow docket taketh away.
