In the latest iteration of United States vs. Texas, Judge Sotomayor noted that “the Fifth Circuit has recently developed a troubling habit of leaving ‘administrative’ stays in place for weeks if not months.” He cited five cases. The same five cases were cited in the request for eviction of the residence presented by the Attorney General (art. 15 n.3).
Would you like to guess which judges were on the panels that granted those administrative suspensions? It certainly has to be a super-Trumpy panel with judges Ho, Duncan and Wilson, right? Not exactly.
Here are the committees that granted the temporary administrative suspensions that Justice Sotomayor complained about:
- United States v. AbbottNo. 23–50632 (85 days, 7 September 2023 to 1 December 2023) (Stewart, Graves, Oldham).
- Petteway v. Galveston city.No. 23–40582 (41 days, October 18, 2023 to November 28, 2023) (Jones, Higginson, Ho).
- Missouri v. BidenNo. 23–30445 (66 days, 14 July 2023 to 18 September 2023) (Stewart, Graves, Oldham).
- RJ Reynolds v. FDANo. 23–60037 (57 days, January 25, 2023 to March 23, 2023) (King, Jones, Smith).
- Legal ctr of the campaign. v. ScottNo. 22–50692 (48 days, August 12, 2022 to September 29, 2022)(Higginbotham, Stewart, Dennis).
Of those five cases, Judge Stewart, a Clinton appointee, voted to grant stays in three of them. Judge Graves, an Obama appointee, voted to suspend two of them. Judge Oldham, a Trump appointee, had two. Judge Jones, a Reagan appointee, had two. And Judges Ho and Smith each had one.
After these temporary administrative holds were released, cases were expedited to the next available oral argument session. It’s inside Petteway vs. Galveston Countyin particular, judges Jones, Higginson and Ho set the expiration of the temporary administrative suspension after 15 days.
What lesson do we draw here? Fifth Circuit judges of all stripes grant temporary administrative stays. I think they are doing their best to manage this torrent of emergency motions, many of them submitted by the United States and progressive groups. It is difficult to make a decision in a short time with a limited briefing. Don’t forget: When a case comes to SCOTUS, there has been a full follow-up review. But the circuit judge on emergency duty has a very full plate. The temporary administrative stay helps overcome the rush.
Judge Barrett raised some fair questions about how administrative stays should be granted. But neither the SG nor Justice Sotomayor presented any evidence that these temporary stays are being used in some sort of evasive way to evade the usual standard of suspension pending appeal. There is also a related point. If Texas district courts are doing such crazy things, then the Fifth Circuit should be rewarded for granting these stays! But this kind of argument defeats the narrative.
There is no smoking here. And there is no fire. Not even shadows. Justice Kagan was prudent in writing her own dissent and not joining Justice Sotomayor’s dissent.