On Thursday, the Supreme Court decided two cases that concerned when an emergency stay should be granted: Moyle v. United States and Ohio v. EPA. Reading these two cases gave me whiplash. In Moyle, Chief Justice Roberts and Justice Kavanaugh voted to dissolve a stay. And in Ohio, Chief Justice Roberts voted to grant a stay. In both cases, Justice Barrett would have denied emergency relief altogether. At least one member of the Court is consistent.
I've talked enough about the prematurely released Moyle opinion (1, 2, 3, 4, 5, 6). As best as I can tell, there were no meaningful changes made in the final version. That suggests this case was done in May, but was being held till the end of the term for unstated reasons. It was released on Thursday, perhaps, because the document was out and the Court wanted to limit damage. Ultimately, no harm, no foul.
In Ohio v. EPA, states and industry groups sought an emergency stay of the Good Neighbor Plan, which limits emissions. The Court split 5-4. Justice Gorsuch voted to grant the stay. Justice Barrett dissented, and was joined by Justices Sotomayor, Kagan, and Jackson. I saw some comments that this case split along gender lines, but I think that description doesn't do any work. Ohio v. EPA was a clear, and consistent manifestation of Justice Barrett's aversion to grant any sort of emergency relief. And the Court's progressives will gladly sign onto those criticisms of the shadow docket.
