As I feared when Chief Justice Roberts issued an administrative stay of the district court’s injunction on August 21, a 5-4 majority on Monday issued a stay pending appeal in the ballroom case—clearing the way for President Trump to continue to (unlawfully) do his thing to the White House’s East Wing. It says a lot about how bad the brief, unsigned majority opinion is that the most common defense I’ve seen of it simply asserts that the 1992 opinion by Justice Scalia with which it is impossible to reconcile was just … wrong. No serious commentary has actually sought to defend the legality of what Trump is doing, or even the doctrinal consistency of the Court’s approach to standing (LOL). Nor is there a viable “growing hostility to standing” argument in the same term that the Court (indeed, with most of the same justices in the majority) decided Bost.
Rather than criticize Monday’s ruling in National Park Service v. National Trust for Historic Preservation (Professor Leah Litman has that well in hand), I want to draw out some meaningful lessons that I think we can take away from the Court’s latest misadventure on the emergency docket—one about Chief Justice Roberts (who wrote the dissenting opinion on behalf of himself and the three Democratic appointees); one about Justice Barrett (who continues to vote in ways that I just don’t understand given what she has claimed to be her committments); one about the Court’s internal procedures for handling emergency applications (as reflected in Roberts issuing an administrative stay and then writing the dissent from a stay pending appeal); and one about the Court’s apparent susceptibility to certain types of sustained public criticism (as reflected in the fact that, for the second straight case, we have a brief but deliberate majority opinion formally explaining the Court’s intervention).
I unpack each of these points in more detail below the fold. For those who aren’t paid subscribers, we’ll be back (no later than) Monday with our continuing coverage of the Supreme Court. For those who are, please read on.
