The Supreme Court has fielded a wave of emergency stay applications — which, when granted, allow a party to disregard a lower court’s decision while SCOTUS deliberates — due to the pandemic and a change in court norms, Stanford lawyers said at a Wednesday event.
As the November election nears, the Supreme Court has fielded an increased number of emergency election-related disputes, such as the ongoing debate over vote-by-mail policies. The Supreme Court has granted emergency stay status in many of these cases on the grounds that “irreparable harm” — one requirement for granting a stay — will be caused if the Supreme Court does not grant it. The Supreme Court can still later uphold the lower court’s decision, at which point the decision would take effect.
The event, which was hosted by Stanford Law School’s Supreme Court Litigation Clinic, featured co-directors and law professors Brian Fletcher and Jeffrey Fisher. Fletcher is an appellate litigator who has argued 11 cases before the Supreme Court. He also served as an associate counsel to the President and the Office of the White House Counsel from 2011 to 2013. Fisher is a leading authority on Supreme Court practice and a nationally-recognized expert on criminal procedure who has argued over three dozen cases at the Supreme Court.
According to Fletcher, there are more election-related emergency stay cases on the Supreme Court docket this year than in 2016. In 2020 alone, 15 emergency stay applications have been filed about the general election from June to October in comparison to four filed in 2016. Fletcher and Fisher predicted that more will be filed in upcoming days.
Under normal circumstances, the processing of Supreme Court cases can take several months, with the average being five or six months, Fisher said. However, for election-related disputes filed after June of this year, this lengthy process is not plausible. Fletcher added that for emergency applications, after the courts get the necessary components needed to decide a case, the justices vote and issue an order in a much shorter time frame through an abbreviated process.
Fletcher attributed the spike in emergency stay applications to the COVID-19 pandemic. He said that the COVID-19 pandemic is complicating voting, causing people to feel inclined to vote by mail, as well as calls for adjustments to voting procedures. For example, Fletcher mentioned a case that reached the U.S. Supreme Court on Monday, which concerns the deadline for mail-in ballots in Pennsylvania due to the difficulties with mailing and ballot processing as a result of the pandemic.
Fletcher said such cases can reach the court either when parties challenge election administrators who decide to adjust their voting procedures or when election administrators keep voting procedures the same, causing parties who want change to sue.
A change in norms in which more parties generally file for stays may be another possible reason for the spike in emergency stay applications this election year, Fletcher said. He cited a New York Times opinion piece published by University of Texas law professor Steve Vladeck, who found that the Department of Justice has filed 29 applications for stays or injunctions during the Trump administration, compared to the eight filed during the 16 years of the Bush and Obama administrations.
“That practice over the last three years has made the court accustomed to resolving more and more important disputes,” Fletcher said. “And I think that may, at least atmospherically, have led parties to be more willing to push things up in this stay and emergency application procedure.”
Fisher noted that a single decision to grant or deny emergency stays or injunctions does not necessarily create a precedent in the Court. Often, he said, the reasoning behind these decisions are not revealed to the public.
Over the next couple of weeks, “people are going to be looking to pick up on [things] to see if they can sometimes piece together little rules and decisions the Court itself isn’t necessarily sharing with us yet,” Fisher said.