Thursday’s Missouri redistricting ruling used boilerplate to freeze the district court’s TRO. That didn’t prevent confusion over what the Court had “stayed.”
Yes; it means even a stay from #SCOTUS in the case currently pending wouldn’t put the USPS rule into effect; the government would separately need a stay of this injunction, too. It really seems increasingly likely that the Court will deny the stay in Judge Talwani’s case—not just because it *should,* but because I have to think it would’ve ruled by now if it was *granting* relief.
Professor. Vladeck, I have a question I feel is of importance in regard to the disposition of these cases. What is the scope of the injunction in the case brought by the states ? Did Talwani issue a blanket injunction against implementation of the rule this time around ? Or once again. did she merely enjoin the enforcement of the rule against those plaintiff states that asked for it ??
I'm sure your readers will appreciate the the consequences implicated by doing that. The Postal Service will then be free to go about its work, and those states that have not sued it, but rather intervened on its side in this case will be bound to comply with it. That is 26 states. That just happen to have Republican controlled legislatures.
In effect, these states are "asking for it". Which poses the question Judge Talwani asked of them at the hearing : "I can not understand why": "Why do you feel the states you represent need to be compelled to do something they are free to do voluntarily ?".
Indeed. Why ? The Appeals Court decision is less than clear on this point. It says in its introduction the Postal Service is enjoined from implementing the rule. Then later it says "The injunction runs in favor of the Appellees". Eg., Plaintiffs.
What a horrible thought. That the Postal Service and Homeland Security might wreak havoc with the voting only in those Republican controlled states that chose to play ball with them. Might the ghost of Bush v. Gore raise its ugly head once again to save us from this predicament ??
Thanks so much for clarifying the possible effect of the 8th Circuit hearing later this week. I've been trying to figure this out much of this past weekend.
Question for those more skilled in federal civil procedure than I (yes, that means everyone!):
A party wins a TRO, but that party was found not to be likely to prevail on the merits on one of the arguments presented in favor of the TRO. Is the District Court's finding of "not likely to prevail" an appealable final order? If not, what in the world is the 8th Circuit doing with its expedited hearing this week? It seems very odd that the 8th Circuit last week rejected the motion to stay filed by the Intervenor-Defendants based at least in part on jurisdiction, but this week they agree to hear an expedited appeal of the same order based on even more tenuous jurisdictional grounds. Is someone in St. Louis "auditioning"?
I think the Supreme Court’s order did something important here even without resolving the ultimate merits: it removed the immediate uncertainty over which map should govern while the litigation continues.
I also think the Court took the right procedural approach. Rather than effectively deciding the underlying dispute through emergency relief, it stayed the district court’s order and gave the Eighth Circuit the opportunity to do its job through the normal appellate process.
That matters to me. Emergency applications are increasingly capable of producing consequences that look very much like final decisions, especially in election cases. Here, the Court provided the clarity Missouri needed for the election while still preserving the role of the court of appeals.
Whether one ultimately agrees with the 2022 map or the 2025 map is a different question. Procedurally, though, I think this was the cleaner approach: stabilize the situation first, then let the appellate courts address the legal issues in the proper order.
If nothing else the fact that the prevailing parties have not sought to protect Judge Tawani’s excellent decision in the First Circuit suggests that that the USPS “rule” is not enforceable if ever until after the election ; what may be of greater interest is the NY Vacination Case. Steve does this mean that state policy and law preempt whatever policies the Federal Government imposes At least insofar as it involves public education facilities?
But when exactly is one "born"? When any part of the infant's body first extends past the birth canal? And where exactly does the birth canal end? We may have to measure with accuracy down to the cellular level, or even the molecular or atomic level. But then Heisenberg's Uncertainty Principle comes into play -- there's an inherent limit to the accuracy of our measurements.
And what if the Justices in question were born so close together in time compared to their spatial separation that relativistic effects come into play? The answer of which was born first would then depend on the point of view of the observer (e.g., the obstetrician versus an extraterrestrial alien speeding by in a flying saucer at nearly the speed of light).
I've obviously been listening to too many Supreme Court oral arguments.
Something for future consideration: Congress suing the Executive Branch, including for documents, against claims of Executive Privilege, and how the Shadow Docket might/might not play out during that period (including slow-walking rulings, use of Circuits outside of 1st Circuit, etc.).
BUT maybe only if Democrats flip either or both chambers of Congress.
Harlan is such a great pick, though not mine. In his wonderful battle with Fortas over ripeness doctrine in the Abbott Labs trilogy, both do a fantastic job explicating the issues. Even though I’m more on the other side, I can still be convinced by Harlan’s points. But, as a DOJ advocate, Fortas would win out for supporting our “never here, never now” dismissal motions.
The Court has issued a decision today ending this assault on the mid term election. Kavanagh concurred . His opinion badly misreads both the APA and the Postal Reorganization Act. The Act permits the Postal Service to adopt rules "not inconsistent with this title." There is nothing in the Title that allows the Postal Service to collect personal information about voters or recipients. And mail classification rules---such as the design of certain envelopes--require a proceeding before the Postal Regulatory Commission and no one seems to have bothered seeking a ruling from the PRC which would be appealable under the Administrative Procedure Act. The Rule is thus not only arbitrary and capricious, as Kavanaugh admits; it is "contrary to law" and therefor invalid under the APA
Unless it's not "significant" enough to make your recap. But since it was a likely 6-3 and OSG have promised to find another vehicle this term, it's very noteworthy.
Your analysis of the Missouri redistricting ruling shows how boilerplate language can obscure a stay’s real impact amid the mail‑in ballot fight. For anyone used to digging through public archives, Indian River Court Records see https://indianrivercountycourt.org demonstrate how precise data cuts procedural confusion. That same clarity is needed to understand why a SCOTUS stay won’t automatically enforce the USPS rule, requiring a separate injunction in Judge Talwani’s case. Professor Vladeck’s question about the injunction’s scope could indeed decide whether the pending challenges survive.
Insomniac here: is this a new development in the mail-in ballots slugfest? It's easy to get lost in the reads...uh, I mean weeds.
https://substack.com/@chrisgeidner/note/c-336666733?r=e1sbw
Yes; it means even a stay from #SCOTUS in the case currently pending wouldn’t put the USPS rule into effect; the government would separately need a stay of this injunction, too. It really seems increasingly likely that the Court will deny the stay in Judge Talwani’s case—not just because it *should,* but because I have to think it would’ve ruled by now if it was *granting* relief.
Professor. Vladeck, I have a question I feel is of importance in regard to the disposition of these cases. What is the scope of the injunction in the case brought by the states ? Did Talwani issue a blanket injunction against implementation of the rule this time around ? Or once again. did she merely enjoin the enforcement of the rule against those plaintiff states that asked for it ??
I'm sure your readers will appreciate the the consequences implicated by doing that. The Postal Service will then be free to go about its work, and those states that have not sued it, but rather intervened on its side in this case will be bound to comply with it. That is 26 states. That just happen to have Republican controlled legislatures.
In effect, these states are "asking for it". Which poses the question Judge Talwani asked of them at the hearing : "I can not understand why": "Why do you feel the states you represent need to be compelled to do something they are free to do voluntarily ?".
Indeed. Why ? The Appeals Court decision is less than clear on this point. It says in its introduction the Postal Service is enjoined from implementing the rule. Then later it says "The injunction runs in favor of the Appellees". Eg., Plaintiffs.
What a horrible thought. That the Postal Service and Homeland Security might wreak havoc with the voting only in those Republican controlled states that chose to play ball with them. Might the ghost of Bush v. Gore raise its ugly head once again to save us from this predicament ??
The Postal Service is a federal agency. It doesn’t have the power to adopt a rule that applies to only in states that have Republican Majorities
Very true, though of course that is not what it did in this instance.
Regarding Supreme Justice seniority, our laws clearly have defects. ¯\_(ツ)_/¯.
Indeed, our current president keeps finding them, and if he doesn't find one, he uses a bulldozer. Same result. ¯\_(ツ)_/¯.
Thanks so much for clarifying the possible effect of the 8th Circuit hearing later this week. I've been trying to figure this out much of this past weekend.
Question for those more skilled in federal civil procedure than I (yes, that means everyone!):
A party wins a TRO, but that party was found not to be likely to prevail on the merits on one of the arguments presented in favor of the TRO. Is the District Court's finding of "not likely to prevail" an appealable final order? If not, what in the world is the 8th Circuit doing with its expedited hearing this week? It seems very odd that the 8th Circuit last week rejected the motion to stay filed by the Intervenor-Defendants based at least in part on jurisdiction, but this week they agree to hear an expedited appeal of the same order based on even more tenuous jurisdictional grounds. Is someone in St. Louis "auditioning"?
Thanks for explaining everything so clearly so we who are not educated in legalese can understand what is happening and how to accept it or notl
Factoid: Stays were precursors to corsets … a time period SCOTUS seems to inhabit increasingly.
I think the Supreme Court’s order did something important here even without resolving the ultimate merits: it removed the immediate uncertainty over which map should govern while the litigation continues.
I also think the Court took the right procedural approach. Rather than effectively deciding the underlying dispute through emergency relief, it stayed the district court’s order and gave the Eighth Circuit the opportunity to do its job through the normal appellate process.
That matters to me. Emergency applications are increasingly capable of producing consequences that look very much like final decisions, especially in election cases. Here, the Court provided the clarity Missouri needed for the election while still preserving the role of the court of appeals.
Whether one ultimately agrees with the 2022 map or the 2025 map is a different question. Procedurally, though, I think this was the cleaner approach: stabilize the situation first, then let the appellate courts address the legal issues in the proper order.
If nothing else the fact that the prevailing parties have not sought to protect Judge Tawani’s excellent decision in the First Circuit suggests that that the USPS “rule” is not enforceable if ever until after the election ; what may be of greater interest is the NY Vacination Case. Steve does this mean that state policy and law preempt whatever policies the Federal Government imposes At least insofar as it involves public education facilities?
There is a helpful website to keep track of the shadow docket: http://shadowdocket.net/index.html
As for the age tiebreaker, people born on the same day won't be born at the same time. So, I would suppose you would go by the time of birth.
But when exactly is one "born"? When any part of the infant's body first extends past the birth canal? And where exactly does the birth canal end? We may have to measure with accuracy down to the cellular level, or even the molecular or atomic level. But then Heisenberg's Uncertainty Principle comes into play -- there's an inherent limit to the accuracy of our measurements.
And what if the Justices in question were born so close together in time compared to their spatial separation that relativistic effects come into play? The answer of which was born first would then depend on the point of view of the observer (e.g., the obstetrician versus an extraterrestrial alien speeding by in a flying saucer at nearly the speed of light).
I've obviously been listening to too many Supreme Court oral arguments.
Something for future consideration: Congress suing the Executive Branch, including for documents, against claims of Executive Privilege, and how the Shadow Docket might/might not play out during that period (including slow-walking rulings, use of Circuits outside of 1st Circuit, etc.).
BUT maybe only if Democrats flip either or both chambers of Congress.
Harlan is such a great pick, though not mine. In his wonderful battle with Fortas over ripeness doctrine in the Abbott Labs trilogy, both do a fantastic job explicating the issues. Even though I’m more on the other side, I can still be convinced by Harlan’s points. But, as a DOJ advocate, Fortas would win out for supporting our “never here, never now” dismissal motions.
The Court has issued a decision today ending this assault on the mid term election. Kavanagh concurred . His opinion badly misreads both the APA and the Postal Reorganization Act. The Act permits the Postal Service to adopt rules "not inconsistent with this title." There is nothing in the Title that allows the Postal Service to collect personal information about voters or recipients. And mail classification rules---such as the design of certain envelopes--require a proceeding before the Postal Regulatory Commission and no one seems to have bothered seeking a ruling from the PRC which would be appealable under the Administrative Procedure Act. The Rule is thus not only arbitrary and capricious, as Kavanaugh admits; it is "contrary to law" and therefor invalid under the APA
I think you missed, in your recap of the week, that Genalo v Black was dismissed?
https://www.supremecourt.gov/DocketPDF/25/25-886/423952/20260911150332786_25-886%20-%20Letter%20from%20Petitioners%20Regarding%20Forthcoming%20Dismissal.pdf
Unless it's not "significant" enough to make your recap. But since it was a likely 6-3 and OSG have promised to find another vehicle this term, it's very noteworthy.
Your analysis of the Missouri redistricting ruling shows how boilerplate language can obscure a stay’s real impact amid the mail‑in ballot fight. For anyone used to digging through public archives, Indian River Court Records see https://indianrivercountycourt.org demonstrate how precise data cuts procedural confusion. That same clarity is needed to understand why a SCOTUS stay won’t automatically enforce the USPS rule, requiring a separate injunction in Judge Talwani’s case. Professor Vladeck’s question about the injunction’s scope could indeed decide whether the pending challenges survive.