From what I've gathered, the Judicial Conference's ill-fated policy is all-but-dead. What a blunder it was. Rather than focusing on areas of bipartisan agreement like patent and bankruptcy reform, the judges leaned into a contentious, hot-button issue. I worry that the well has now been poisoned for broad reform, though I'll share some thoughts in due course about how to improve things.

For now, I'd like to highlight some actual judge shopping in Alabama. And none of this judge shopping occurred in single-judge divisions. You see, Alabama has very few Democratic-appointed district court judges. By my rough count, in the entire state, there is one active Obama nominee, and two senior appointees from Clinton and Carter. The Carter appointee, Judge Myron Thompson in Montgomery (Middle District of Alabama), is well known for ruling in favor of progressive litigants. Unsurprisingly, if you are a progressive litigant in Alabama, you will do everything in your power to get the case assigned to Judge Thompson.

Which brings us to the present case. In 2022, Alabama enacted the Vulnerable Child Compassion and Protection Act, which prohibits certain medical procedures for minors. As could be expected, the law was subject to immediate challenges by all the usual suspects.

Their strategy, which was revealed in a panel report, is striking. Here is the (rough) chronology.

1. 4/8/2022—Ladinsky complaint filed in NDAL by National Center for Lesbian Rights, GLBTQ Legal Advocates & Defenders, Southern Poverty Law Center, and Human Rights Campaign.
2. 4/11/2022—The NDAL case was randomly assigned to Judge Annemarie Axon (Trump appointee).
3. 4/11/2022—Walker complaint filed in MDAL by ACLU, Lambda Legal, and Transgender Law Center. The civil cover sheet marked the case as related to Corbitt v. Taylor. Corbitt was a challenge to an Alabama policy regarding the listing of gender on drivers' licenses. That case had been closed in January 2021. The only lingering issue was attorney's fees. Judge Thompson presided over Corbitt. The attorneys "marked Walker related to Corbitt because they wanted Walker assigned to Judge Thompson." The attorneys admitted that "they considered Judge Thompson a favorable draw because of his handling of Corbitt and that he ruled in favor of the plaintiffs who asserted transgender rights claims."
4. 4/12/2022 – Walker randomly assigned to Chief Judge Emily Marks (Trump appointee). Walker plaintiffs filed a motion to reassign to Judge Thompson. Counsel had also called Judge Thompson's chambers and spoke with the judge's law clerk to flag the pending motion for preliminary injunction. At that time, Walker had not been assigned to Judge Thompson. (The lawyer at first denied making such a call, but later admitted it; the panel found his testimony was "troubling.") The counsel never called Chief Judge Marks to flag the pending motion.
5. 4/13/2022—Chief Judge Marks entered an order to show cause why the case should not be transferred to the Northern District. The parties did not oppose the transfer.
6. 4/15/2022 – Walker reassigned to NDAL, and the case was randomly assigned to Judge Burke (a Trump appointee). That day, Judge Axon also transferred Ladinsky to Judge Burke. About two hours after Ladinsky was assigned to Judge Burke, the Walker and Ladinsky plaintiffs filed a notice of voluntary dismissal. This dismissal was made, "even though (as [counsel] admit) time was of the essence and their stated goal was to move quickly to enjoin what they viewed as an unconstitutional law, abruptly stopping their pursuit of emergency relief."
7. 4/16/2022—Counsel for Ladinksy plaintiffs tell the press that they plan to refile their case "immediately."
8. 4/18/2022—Judge Burke denied the TRO as moot because of voluntary dismissal, but noted the press reports that the Plaintiffs planned to refile. Judge Burke stated, "At the risk of stating the obvious, [p]laintiffs' course of conduct could give the appearance of judge shopping—'a particularly pernicious form of forum shopping'—a practice that has the propensity to create the appearance of impropriety in the judicial system."
9. 4/19/2022—A new group of plaintiffs, led by Eknes-Tucker, filed suit in the Middle District of Alabama signed by the same lawyers who filed Ladinsky. The lawyers found new plaintiffs, because were "concerned that they would be accused of judge shopping if they filed a new action with the same plaintiffs."  The case was randomly assigned not to Judge Thompson, but to Judge Huffaker (Trump appointee).
10. 4/20/2022—Judge Huffaker transferred the case to Judge Burke.

The panel concluded, "Behind the scenes, counsel took surreptitious steps calculated to steer Walker to Judge Thompson even before filing their motion to have Walker reassigned to him." And the lawyers "made plans and took steps in an attempt to manipulate the assignment of these cases." Ironically, the panel noted, Judge Burke ruled for the Eknes-Tucker plaintiffs in part. A Trump judge!

This sequence of events, which was well known in Alabama, proves how pernicious actual judge shopping is. And this practice has nothing to do with single-judge divisions. Skilled lawyers know how to direct cases to favorable forums. Here, they made some ill-advised statements to the press, and got caught. But in many other cases, they are not caught. I will wait to see breathless outrage on social media about this actual judge shopping. If ADF did something like this, they would be crucified.

How would the much-vaunted Judicial Conference have worked here? Who knows!? There were so many assignments and reassignments, coupled with suits filed in competing divisions, all based on random draws. These choices were deliberately made by the plaintiffs to gum up the system. Plus, the coversheet and "Related Case" gambit throws a wrench in any assignment wheel. Often, staff in the clerk's office have to decide whether to reassign a "related" case. This case involved "two cases [that were] filed in the same district and there [was] a question about whether they should be consolidated or otherwise transferred so that the same judge presides over them." Resolving this issue is "not so much a rule as a practice." It is complex, and requires some judging. It would not surprise me if judges in the trenches looked at the Judicial Conference's policy and recognized that it would be impossible to actually apply in the real world–especially in light of potential gamesmanship. After all, parties can trigger reassignment just by seeking statewide relief. Or, a case could be dismissed and re-filed, as the plaintiffs did here. Or the same complaint can be filed in multiple districts, with the hopes of getting the best draw.

The attorneys in the Alabama case work at leading law firms and civil rights organizations. They have every interest in avoiding random draws in red states. For these reasons, I suspect they would quietly oppose the judicial conference's policy.

A few days I go, I blogged about the rather insensitive action by the Dwight Opperman Foundation to award the RBG Leadership Awards this year to a bizarre list of honorees: Elon Musk, Rupert Murdoch, Martha Stewart, Michael Milken, and Sylvester Stallone.

On Tuesday, then Foundation backtracked and cancelled this year's award ceremony "after facing blistering criticism from her family and friends over this year's planned recipients," in the words of the NY Times.

A good move; if I'm going to chastise them for screwing up, I should applaud when they recognize their mistake and try to put things right.

Justice Barrett's concurrence in McCraw made it less likely that lower courts will grant administrative stays before a merits panel holds oral argument. And, it turns out, the administrative stays from the Fifth Circuit were not coming from the Court's trumpiest judges. Before the ink even dried on the Supreme Court's shadow docket order, the Fifth Circuit panel (Richman, Oldham, Ramirez) swooped into action. First, on Tuesday afternoon, the panel set oral argument for Wednesday morning (it is ongoing as I type). This oral argument is only on the question of whether a stay should be granted pending appeal. A merit-stage oral argument is set for April 3. Second, the panel dissolved the temporary administrative stay over Judge Oldham's dissent. I suspect the writing is on the wall, and this panel will not grant a stay pending appeal. It is possible the en banc court can override this decision. Chief Judge Richman, according to my 2022 count, is far from the median voter on the Fifth Circuit. But the Fifth Circuit may let this one linger for regular en banc review.

Going forward, I'm not sure if Justice Barrett's concurrence will have the effect that she intended. Let's spin out two scenarios. First, where a district court judge in Austin rules against Texas. Second, where a district court judge in Amarillo rules against the federal government. In both scenarios, if Justice Barrett's approach is followed, the courts are less likely to enter administrative stays for any lengthy duration. And, the average Fifth Circuit panel would probably grant a stay in the case from Austin, and deny the stay in the case from Amarillo. What is the effect? More emergency applications arriving at the Supreme Court filed by the Department of Justice. Yes, in an attempt to tighten the screws on the shadow docket, Justice Barrett likely made the shadow docket even more active.

What will the result be? Ironically enough, Circuit Justice Alito will be forced to enter a never-ending series of administrative stays that are extended as needed to digest complicated cases, which is what happened in McCraw. The Justices will be in the same position as the Fifth Circuit judges who are struggling to handle the torrent of emergency litigation. The shadow docket giveth, and the shadow docket taketh away.

In the latest iteration of United States v. Texas, Justice Sotomayor observed that the "Fifth Circuit recently has developed a troubling habit of leaving 'administrative' stays in place for weeks if not months." She cited five cases. Those same five cases were cited in the Solicitor General's application to vacate the stay (at 15 n.3).

Would you care to guess which judges were on the panels that granted those administrative stays? Certainly is must be a super-Trumpy panel with Judges Ho, Duncan, and Wilson, right? Not exactly.

Here are the panels that granted the temporary administrative stays that Justice Sotomayor complained about:

• United States v. Abbott, No. 23–50632 (85 days, from Sept. 7, 2023, to Dec. 1, 2023) (Stewart, Graves, Oldham).
• Petteway v. Galveston Cty., No. 23–40582 (41 days, from Oct. 18, 2023, to Nov. 28, 2023) (Jones, Higginson, Ho).
• Missouri v. Biden, No. 23–30445 (66 days, from July 14, 2023, to Sept. 18, 2023) (Stewart, Graves, Oldham).
• R. J. Reynolds v. FDA, No. 23–60037 (57 days, from Jan. 25, 2023, to Mar. 23, 2023) (King, Jones, Smith).
• Campaign Legal Ctr. v. Scott, No. 22–50692 (48 days, from Aug. 12, 2022, to Sept. 29, 2022)(Higginbotham, Stewart, Dennis).

Of these fives cases, Judge Stewart, a Clinton appointee, voted to grant a stay in three of them. Judge Graves, an Obama appointee, voted to grant a stay in two of them. Judge Oldham, a Trump appointee had two. Judge Jones, a Reagan appointee had two. And Judges Ho, and Smith each had one.

After these temporary administrative stays were issued, the cases were accelerated to the next available oral argument session. And in Petteway v. Galveston County, in particular, Judges Jones, Higginson, and Ho set the temporary administrative stay to expire after 15 days.

What lesson do we draw here? Judges of all stripes on the Fifth Circuit grant temporary administrative stays. I think they are doing their best to handle this torrent of emergency motions, many of which are filed by the United States and progressive groups. It is hard to make a decision in short order with limited briefing. Don't forget–by the time a case gets to SCOTUS, there has been a full vetting below. But the circuit judge on emergency duty has a very full plate. The temporary administrative stay helps to get through the rush.

Justice Barrett raised some fair questions on how administrative stays should be granted. But neither the SG nor Justice Sotomayor have put forward any evidence that these temporary stays are being used in some sort of evasive fashion to evade the usual stay-pending-appeal standard. There is also a related point. If the District Courts in Texas are doing such crazy stuff, then the Fifth Circuit should be rewarded for granting these stays! But that sort of argument defeats the narrative.

There is no smoke here. And there is no fire. No shadows either. Justice Kagan was prudent to write her own dissent, and not join Justice Sotomayor's dissent.

Today, the Supreme Court issued an order on the emergency docket in United States v. Texas. To avoid confusion with the umpteen other cases by that name, we can call the case Las Americas Immigrant Advocacy Center v. McCraw. This case presented a challenge brought by the federal government against Texas S.B. 4. The District Court entered preliminary injunction to block the law from going into effect. On March 2, a three-judge panel of the Fifth Circuit entered a "temporary administrative stay." The panel also stayed that temporary stay for seven days to permit an appeal to the Supreme Court. The panel also expedited the case for the April argument session.

Two days later, on March 4, the Solicitor General sought an application to vacate the stay of the preliminary injunction. Circuit Justice Alito promptly administratively stayed the case until March 13. On March 12, the Court extended the administrative stay until Mach 18. And on March 18, the stay was "hereby extended pending further order of Justice Alito or of the Court." It was a stay on top of a stay on top of a stay on top of a stay. Stays all the way down.

Today, the Court denied the application to stay the Fifth Circuit's temporary administrative stay. In other words, the Supreme Court's stay was dissolved. As a result, the Fifth Circuit's temporary administrative stay will go into effect, and thus S.B. 4 can be enforced. As is often the case, there was no opinion of the Court. There was only a single sentence without any reasoning. However, there were separate writings.

Justice Barrett wrote a five-page concurrence, which was joined by Justice Kavanaugh. In many regards, Barrett's Las Americas v. McCraw concurrence is the sequel to Barrett's Doe v. Mills concurrence. In October 2021, Justice Barrett wrote her influential concurrence in John Does 1-3 v. Mills, which was joined by Justice Kavanaugh. This decision, in my view at least, heightened the standard required to obtain relief on the emergency docket. She wrote that the "likelihood of success on the merits" factor from Nken reflects "a discretionary judgment about whether the Court should grant review in the case." At the time, I wrote that Justice Barrett cut the fuse on the shadow docket, by making it harder to grant emergency relief. Over the past 2.5 years (yes it has been that long), Justice Barrett has consistently voted to grant emergency applications from the Biden administration and likeminded groups, often citing Doe v. Mills. More often than not, she lines up opposite of the Fifth Circuit.

Barrett's McCraw concurrence makes several primary points.

First, Barrett writes that if the Fifth Circuit had issued a stay pending appeal, the Supreme Court would have reviewed that decision with the four-factor test from Nken v. Holder. Here, Barrett cited her Doe v. Mills concurrence. But the Fifth Circuit panel did not actually issue a stay pending appeal. Rather, the panel only issued a temporary administrative stay until the case is argued before a merits panel. Barrett describes this posture as "very unusual." In dissent, Justice Kagan did not "think the Fifth Circuit's use of an administrative stay, rather than a stay pending appeal, should matter."

Second, Justice Barrett issues a deep dive into administrative stays, relying in large part on a recent article by Rachel Bayefsky in the Notre Dame Law Review. Barrett writes that administrative stays usually do not consider likelihood of success. Rather, quoting Bayefsky, administrative stays "freeze legal proceedings until the court can rule on a party's request for expedited relief." The administrative stay "buys the court time to deliberate" and decide whether the applicant is likely to succeed on the merits. Barrett cites a number of cases in which the Supreme Court issued a temporary administrative stay to "permit time for briefing and deliberation," including June Medical v. Gee, Murthy v. Missouri, Yeshiva University v. YU Pride, and McCraw itself. Barrett then cites a slew of circuit court decisions; some of which are cited in Bayefsky's article, but some are not. ACB did some original research.

Third, in a footnote, Justice Barrett observes that the Court has "not explained the source of a federal court's authority to enter an administrative stay." She cites Bayefsky for the proposition that this power comes from "a court's inherent authority to manage its docket, as well as to the All Writs Act, 28 U. S. C. §1651." I have not given this issue much thought, but I will.

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