Bonus 178: The Continuing Growth of "Administrative" Stays

As emergency relief has become more prevalent in the Supreme Court, so, too, have "administrative" stays—notwithstanding Justice Barrett's March 2024 concurrence urging more restraint in the practice.

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As of this morning, there are currently three separate “administrative” stays from the justices that are in effect—orders that are supposed to be incredibly brief pauses in lower-court rulings while the full Court considers whether to pause those rulings for the duration of the proceedings in that case. One is allowing President Trump, in express violation of a statute, to keep Rebecca Slaughter out of office as a member of the Federal Trade Commission after lower courts held that her firing was unlawful. A second is appearing to clear the way for President Trump to exercise a “pocket rescission” power that the Constitution has long been understood to prohibit. And a third is preventing a trial from going forward in a suit against New Jersey Transit—even though New Jersey Transit waited until the eve of the trial to seek emergency relief.

In an important concurring opinion in March 2024, Justice Barrett both defended the idea of such temporary, “administrative” stays and argued that they should be used sparingly and briefly—that such stays should be in place only for as long as is necessary to give the full Court time to rule. But as I explain below the fold, the evidence both in the lower courts and at the Supreme Court is that Barrett’s opinion has largely gone unheeded. The Court is issuing more administrative stays than ever before; those stays are lasting, on average, longer than those issued before Barrett’s opinion in United States v. Texas; and there are high-profile cases in which lower courts have continued to use them even more abusively than the Fifth Circuit arguably had in the case that provoked Barrett’s response. Much of what Justice Barrett wrote 18 months ago tomorrow was exactly right. The problem may be getting her colleagues (and the lower courts) to listen.

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