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Impede the Fifth

The Most Conservative Jurists in America Have Lost the Supreme Court

The Fifth Circuit’s well-documented judicial shenanigans have earned a surprising rebuke from the high court.

WASHINGTON, DC - FEBRUARY 07: U.S. Supreme Court Associate Justices Brett Kavanaugh (L) and Amy Coney Barrett talk before President Joe Biden delivers the State of the Union address to a joint session of Congress in the House Chamber at the U.S. Capitol in Washington, D.C.
Chip Somodevilla/Getty Images
U.S. Supreme Court Associate Justices Brett Kavanaugh and Amy Coney Barrett

For a few hours on Tuesday night, the state of Texas had its own immigration system. The Supreme Court declined to block Senate Bill 4, the state’s controversial new immigration law, from going into effect for procedural reasons. After some chiding by the justices, the Fifth Circuit Court of Appeals then eventually lifted its order that allowed the law to take effect.

At least two of the justices in the majority, however, signaled that they would not allow the procedural mischief that abounded in this case to happen again. Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh, warned that they might be open to overcoming those shenanigans in the future.

The time may come, in this case or another, when this court is forced to conclude that an administrative stay has effectively become a stay pending appeal and review it accordingly. But at this juncture in this case, that conclusion would be premature.

The Fifth Circuit is arguably the second-most-important court in the nation right now. Not because of its size; the Ninth Circuit is much larger in both population and geography. Nor because of its jurisdiction: The D.C. Circuit is more likely to hear important cases by virtue of covering the nation’s capital.

Instead, the Fifth Circuit’s importance derives from its willingness to act as a vehicle for quixotic laws and lawsuits from conservatives to change or block national policies. The justices’ move on Tuesday is a short-term victory for those conservatives—but it may also be a sign that their patience with this state of affairs is running out.

S.B. 4 is an unusual measure by any standard. The statute allows Texas to more or less enforce its own immigration laws. Under S.B. 4, illegal entry into the United States is a state-level crime, empowering state law enforcement agencies to make arrests for potential violations of it. The law also allows Texas to theoretically carry out its own deportations for anyone found guilty of the offense. State officials argued it was necessary because the Biden administration wasn’t doing enough to “secure the border.”

The Constitution gives that power to the federal government, however, not to the states. Courts have long held that states can’t carry out their own immigration priorities. In 2012, the Supreme Court struck down an Arizona law that allowed state and local police to enforce federal immigration laws and created a series of state-level offenses that would allow it to prosecute undocumented immigration. Justice Anthony Kennedy, writing for the 5–3 majority, held that the law intruded upon federal discretion over immigration enforcement.

“The national government has significant power to regulate immigration,” he wrote for the court. “With power comes responsibility, and the sound exercise of national power over immigration depends on the nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermine federal law.”

To that end, a coalition of immigrant-aid groups and local leaders sued Texas in federal court last December, arguing that S.B. 4 violated Article 1 of the Constitution and the supremacy clause. A federal district court judge found their case plausible enough to issue a preliminary injunction in February that would block the law from going into effect while legal proceedings took place.

That’s when things got procedurally weird. In response to the injunction, Texas asked the Fifth Circuit Court of Appeals to stay pending appeal of the district court’s injunction, which would allow the state to enforce the law while the Fifth Circuit considered the case. The Fifth Circuit did not rule on that motion. Instead, a subpanel of the court entered what’s known as an administrative stay while it considered Texas’s motion.

Administrative stays are typically used as a stopgap of sorts: Since judges on panels are human beings who need time to read briefs and talk to one another, they are supposed to freeze the status quo in place until that’s done. Then, once they’ve had a chance to get their ducks in a row, they are supposed to issue a ruling on the underlying motion.

The problem is that the Fifth Circuit has what Justice Sonia Sotomayor described as a “troubling habit” of leaving administrative stays in place way, way longer than normal. In a footnote in her dissent, she identified multiple cases where the court left administrative stays in place for “weeks if not months.” In one instance, the Fifth Circuit left an “administrative” stay in place for 85 days before lifting it.

This difference also matters in terms of practical effects. When appeals courts consider stays pending appeal, for example, they are supposed to use a multifactor test outlined by the Supreme Court. They are also supposed to write opinions laying out their reasoning for lifting or imposing a stay. Administrative stays require no such reasoning or effort. Crucially, administrative stays are not typically reviewed by higher courts, while stays pending appeal can be.

A deeply cynical person might wonder if some of the Fifth Circuit’s members were abusing their docket-management discretion to affect the facts on the ground in certain high-profile cases. Sotomayor criticized the appeals court for not only issuing an indefinite administrative stay but issuing it in a way that would allow S.B. 4 to go into effect instead of preserving the status quo.

“In light of the consequences detailed by the district court, the Fifth Circuit should have considered the constitutionality and irreparable harm caused by S. B. 4 before allowing the law to go into effect,” she wrote. “Instead, it opened the door to profound disruption. This court makes the same mistake.”

Kagan, writing separately, also disagreed with the Supreme Court’s decision to allow the law to take effect. “Administrative stays surely have their uses,” she wrote. “But a court’s unreasoned decision to impose one for more than a month, rather than answer the stay pending appeal issue before it, should not spell the difference between respecting and revoking long-settled immigration law.”

Barrett disagreed, arguing that the high court should not get in the business of reviewing administrative stays. One can almost sympathize with her: Given how busy the shadow docket keeps the justices nowadays, adding an entire new layer of orders to potentially review must seem daunting. “So far as I know, this Court has never reviewed the decision of a court of appeals to enter—or not enter—an administrative stay,” she wrote. “I would not get into the business.”

But her decision was hardly an endorsement of the Fifth Circuit’s handling of things. Though she ultimately allowed the Fifth Circuit’s motion to remain in effect on procedural grounds, she warned that the justices might reconsider matters if the panel does not act quickly enough.

“Texas’s motion for a stay pending appeal was fully briefed in the Fifth Circuit by March 5, almost two weeks ago,” Barrett concluded. “Merits briefing on Texas’s challenge to the district court’s injunction of S. B. 4 is currently underway. If a decision does not issue soon, the applicants may return to this court.”

The Fifth Circuit appears to have gotten the message, at least in this case. Just a few hours after the Supreme Court’s decision, the three-judge panel that oversees the case scheduled oral arguments on the stay pending appeal for Wednesday. Two of the panel’s members also voted to lift the administrative stay, meaning that S.B. 4 is once again blocked from going into effect. They also appear likely to reject the stay pending appeal that Texas seeks based on the questions they asked during oral arguments.

This is the second time in recent weeks that the federal judiciary has implicitly dinged the Fifth Circuit for its procedural mischief. Earlier this month, the Judicial Conference of the United States, the policymaking body for the federal courts, announced a new rule that requires courts to assign cases of national importance at random when they are filed in single-judge divisions. The conference said the change was necessary to “[deter] judge-shopping and the assignment of cases based on the perceived merits or abilities of a particular judge.”

While some of these strategic filings happen in other contexts, they most famously occur when right-wing litigants engineer cases to appear before specific judges in federal courts in Texas. Some examples include Judge Matthew Kacsmaryk, an anti-abortion lawyer turned judge who issued a ruling last year that would ban the most widely used abortion drug, or Judge Reed O’Connor, who strikes down the Affordable Care Act more frequently than I change my glasses prescription. Those rulings are then reviewed by the deeply conservative Fifth Circuit bench on appeal, where they stand a better chance of being upheld than they would anywhere else.

Tuesday’s move by the court is another sign that the federal judiciary as a whole has lost patience with the legal legerdemain that takes place in Texas. And even though it gave the state of Texas a very short-lived victory in the S.B. 4 case, it may ultimately amount to a larger defeat on how the courts approach the lopsided litigation in the Lone Star State.