On July 24, the Fifth Circuit declined to stay the district court’s vacatur of the “Frame or Receiver” rule. Three days later, on July 27, the Solicitor General filed an application for a stay of the district court’s ruling. The next day, on July 28, Circuit Justice Alito entered an administrative stay and a briefing schedule:
Order issued by Justice Alito: Upon consideration of the application of counsel for the applicants, it is ordered that the June 30, 2023 order and July 5, 2023 final judgment of the United States District Court for the Northern District of Texas, case No. 4:22-cv-691, are hereby administratively stayed until 5 p.m. (EDT) on Friday, August 4, 2023. It is further ordered that any response to the application be filed on or before Wednesday, August 2, 2023, by 5 p.m. (EDT).
The briefing was completed, but no ruling came on August 2 or 3. On August 4, Circuit Justice Alito further extended the administrative stay:
Order issued by Justice Alito: Upon further consideration of the application of counsel for the applicants, the responses, and the reply filed thereto, it is ordered that the stay issued on July 28, 2023, is hereby extended until 5 p.m. (EDT) on Tuesday, August 8, 2023.
What do we make of this four-day delay? Two broad possibilities. First, a majority opinion has already coalesced–either to grant the stay or deny the stay–and the dissenters need some time to prepare a dissent. Second, a majority opinion has not coalesced, and more time is needed to conference the issue. (I think certiorari before judgment may be in the cards here.)
I did a quick search of the phrase “Upon further consideration of the application of counsel for the applicants, the responses, and the reply filed thereto” in the Supreme Court database. This language has been used about 7 times to vacate a stay. But I onyl found two other cases where this language was used to extend a stay: the mifepristone cases. Circuit Justice Alito extended an administrative stay of the Fifth Circuit’s ruling by seven days. And, after those seven days lapsed, the Court exercised its spooky shadow docket power, and stayed the Fifth Circuit. Why was there an extension of time? Perhaps Justice Alito needed more time to write a dissent. (Justice Thomas dissented without opinion.) Or, perhaps negotiations were in flux, and Alito was trying to scrounge more votes, but ultimately was unsuccessful. I could not find any other instance in which an administrative stay was extended with this language.
If past is prologue, the Court will stay the Fifth Circuit again in the “Frame or Receiver” case. Or, the Court may be cobbling together votes for cert before judgment. Plus don’t forget the recently-decided “Pistol Brace” case from the Fifth Circuit, which should be coming to the shadow docket soon. If these cases are granted, along with Rahimi, we will have a very Fifth Circuit gun-centric term ahead of us.
Josh Blackman
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