For Staten Island, The Interim Docket Is The Final Docket

Earlier this month, the Supreme Court granted an emergency stay in the Staten Island redistricting case, Malliotakis v. Kosinski. The per curiam opinion offered no reasoning, but simply stated that the lower court’s ruling was stayed “disposition of a petition for a writ of certiorari in this Court, if such a writ is timely sought.” But everyone knew that no such petition would ever be filed. As soon as the Court granted the stay, the case was effectively over. There was no way to litigate this case further before the midterm election.

On remand, the parties stipulated that the case would be dismissed with prejudice, each side paying their own fees. I suspect the plaintiffs realized that further litigation would be futile, and would just generate costs, so they called it quits.

I know that Justice Kavanaugh is partial to using the term “interim orders docket.” But there was nothing interim here. The Supreme Court’s stay was final.

Justice Sotomayor, in dissent, contended that the New York courts could settle this matter quickly:

In short, there is every reason to think that the New York courts will fully, swiftly, and prudently resolve this case before the primary election. Basic federalism principles, which have bound federal courts since the founding, require giving the New York courts a fair opportunity to do so. The majority, however, denies them that chance.

Justice Alito responded that the dissent “demands that we wait until the completion of a series of events that would likely run out the clock before we could review the order.” Yet, by issuing the stay, the Court ran out the clock for the entire case. As a result, the lower court will never have a shot to review it.

Why should the lower courts be allowed to use a shadow docket but not the Supreme Court?

My sincere thanks to the Supreme Court for saving my home town of Staten Island.

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