On January 24, 2022, a three-judge panel of the Eleventh Circuit issued an injunction to block Alabama's new electoral maps. The court found that Alabama should have created a second majority-minority district. Alabama appealed that ruling to the Supreme Court, and sought a stay of the injunction. On Monday, the Supreme Court issued an order in Merrill v. Milligan and Merrill v. Caster. The application for a stay was treated as a petition for a writ of certiorari before judgment. The Court granted that petition. The Court also stayed the injunction while it resolves the appeal. Presumably the case will be set for argument next Term.
The Court split 5-4. Justice Thomas, joined by Justices Alito, Gorsuch, Kavanaugh, and Barrett supported the Court's order. Chief Justice Roberts dissented from the grant of the application for stays. But he agreed to grant certiorari before judgment, and would set the case for arguments next Term. Justice Kagan, joined by Justices Breyer and Sotomayor, dissented. They would not have granted the stay. Justice Kavanaugh wrote a concurrence, joined by Justice Alito, that responded to Justice Kagan's dissent. The other members of the majority did not explain their reasoning.
I see this case as the most important shadow docket entry since John Does 1-3 v. Mills. In that vaccine mandate case, Justices Barrett and Kavanaugh explained why they were hesitant to grant injunctions in unargued cases. At the time, I wrote that Barrett and Kavanaugh cut the fuse on the shadow docket. On January 27, Barrett--but not Kavanaugh--declined to grant a stay of an injunction in a capital case. Yet in the Alabama cases, Barrett granted a stay, without explaining her reasoning. How do we reconcile these votes? I think the simplistic answer is that Barrett prefers maintaining the status quo. Or, stated differently, she does not want the Court to enter emergency relief that would alter the status quo. In the vaccine mandate case, the District Court did not grant an injunction, so the status quo remained that the mandate would go into effect. In the capital case, the district court granted a stay of execution, so the status quo remained that the inmate would not be executed. And in the Alabama cases, the district court ordered the state to draw new maps. Granting a stay preserved the old maps, which would continue to remain in effect for the 2022 elections.
