Bonus 214: Emergency Relief from State Courts
At a moment in which the Supreme Court's emergency docket is *already* busier than ever, Monday's stay grant in the Malliotakis case wrongly expands it to encompass countless state-court rulings, too.
Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter (and unscheduled issues like the one I dropped Monday night) will remain free for as long as I’m able to do this, I put much of the weekly “bonus” issue behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription—both to have full access to the bonus content and to more broadly support these efforts—if and when your circumstances permit:
I wanted to follow up on the Court’s grants of emergency relief Monday night in the Malliotakis redistricting cases (and on my Monday night post about the decision) by taking a deeper dive into the jurisdictional issue the applications presented.1 I’ve written before about how the Supreme Court’s formal jurisdictional relationship with state courts differs in some pretty significant respects from its relationship with the lower federal courts. Here, those differences should have meant—as Justice Sotomayor’s dissent argued—that the Court lacked the power to intervene. By nevertheless granting the stays, the Malliotakis majority has necessarily set a precedent for litigants in state courts to seek emergency relief from the justices in circumstances in which it shouldn’t be (and has never previously been) available.
The majority, of course, did nothing to explain why it had jurisdiction; it didn’t say anything at all. But perhaps the most galling aspect of Monday night’s ruling is Justice Alito’s concurrence—which rests the Court’s jurisdiction on a remarkably deceptive (if not deliberately misleading) sleight-of-hand about the timing and sequencing of the state courts’ rulings. With the record properly clarified, the Court’s exercise of jurisdiction in Malliotakis notwithstanding the availability of further review from New York’s highest court is in direct conflict with a 2022 ruling; and, more fundamentally, risks throwing open the emergency docket floodgates to encompass a potentially limitless number of state-court rulings, as well.
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