As soon as this afternoon, we could hear from the Supreme Court on the Missouri redistricting dispute’s third trip to the justices in the last 16 days. In particular, the group that successfully triggered a statewide referendum on Missouri’s proposed new congressional map (“HB 1”), under the name “People Not Politicians,” has asked Justice Kavanaugh (and, through him, the full Court) for a stay of the permanent injunction entered by the district court on Monday. Without intervention from Kavanaugh or the full Court, that injunction would go into effect next Monday at 5 p.m. CT, and would force Missouri to use a congressional map that its own supreme court held to be legally defunct as a matter of state law.
One of the questions that’s come up in response to this whiplash is how an injunction from the district court isn’t automatically covered by the ruling the Supreme Court handed down on September 10 in the Missouri case’s second trip to the Court—where it stayed the district court’s temporary restraining order (which would’ve required the same thing as its new injunction). To help explain why the Supreme Court’s stay covered only the TRO, and not the injunction, I thought it would be helpful to do a bit of a deeper dive into the difference between these two (very similar) types of court orders—and why those differences help to explain why a stay of one doesn’t necessarily foreordain the merits of the other, even if it should have here.
Part of why it’s useful to understand the key differences between TROs and injunctions (especially “preliminary” injunctions) is because two of the most important differences between them have increasingly collapsed. And whether that development is a good or bad one (I’m ambivalent), it also muddies the waters a bit when it comes to how much wiggle room a district court really should have in subsequent proceedings in the same case once an appellate court has acted to freeze (“stay”) a TRO.
To make a long story at least a bit shorter, a stay of a TRO is not a stay of an injunction, because the two orders differ in how long they last, how much process precedes them, and whether an appellate court can touch them at all. But those differences are collapsing—and that collapse, not the formal distinction, is the real (procedural nerd) story folks should take away from Missouri.
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