Layered Standards of Review in United States v. Texas and Beyond

My latest Verdict column discusses this week's maneuvers in the litigation over Texas S. B. 4--which, as I explain in the column, 

makes it a state crime for an undocumented immigrant to enter Texas, imposes severe penalties, authorizes state deportation to Mexico regardless of the nationality of the undocumented immigrant, and requires state court judges to proceed with state criminal and deportation measures even if the undocumented immigrant is in the midst of a federal proceeding (such as adjudication of an asylum claim) that could result in permission to remain in the country.

The column describes how: (1) the federal district court properly enjoined S. B. 4; (2) the Fifth Circuit then issued an administrative stay of that injunction but also stayed its stay for up to seven days pending an application to vacate the administrative stay in the Supreme Court; (3) the Supreme Court declined to vacate the stay, which meant that the stay of the stay was dissolved, so the stay went into effect, so the preliminary injunction was stayed, so S. B. 4 was enforceable; but then within a few hours (4) the Fifth Circuit panel to which the appeal had been assigned vacated the stay and scheduled oral argument (held on Wednesday) on whether to grant a stay pending appeal (which in principle requires a different kind of showing from what's necessary for an administrative stay but has the same effect), and is yet to rule, so that; (5) for now, S. B. 4 remains enjoined.

Confused? Wait. It gets worse.

Because there was no opinion accompanying the SCOTUS order (declining to vacate the administrative stay), we don't know exactly where all of the Justices will end up if and when the case returns to the Court on the merits. We know that Justice Sotomayor and Jackson are certain to find for the Biden administration and its allied private plaintiffs on the ground that S. B. 4 invades the domain of federal law (and indeed, in some respects, runs contrary to federal law). Justice Kagan characterized her view of the merits as necessarily "tentative" in light of the case's preliminary posture, but she too is a very likely vote to invalidate S. B. 4. The only other Justice to express an opinion was Justice Barrett, joined by Justice Kavanaugh, but she didn't opine on the merits at all. Instead, her position appears to be that SCOTUS should never vacate an appeals court's administrative stay, except perhaps if the appeals court leaves it in place too long.

Justices Barrett and Kagan appeared to disagree over whether the Court's standard for reviewing a stay pending appeal applied. Justice Kagan thought that the administrative stay was the functional equivalent of a stay pending appeal and thus should be governed by the standard governing the latter. As noted, Justice Barrett (and Justice Kavanaugh) seemed to think that review of an administrative stay is simply unavailable. I find that untenable--even for a short administrative stay--at least where there really would be a substantial irreparable injury to a party contesting the administrative stay who is very likely to prevail on the merits. Nonetheless, the disagreement between Justices Kagan and Barrett is probably not very important because where the appeals court acts with alacrity in moving from an administrative stay to deciding whether to grant a stay pending appeal, there will be no time or need for SCOTUS review, whereas a lengthy administrative stay is the exception to Justice Barrett's suggestion that administrative stays can't be reviewed.

Thus, most cases in which a party seeks SCOTUS review of an appeals court interim stay of a district court preliminary injunction will involve appeals court stays pending appeal, which is how Justice Kagan saw this case. Everyone acknowledges that such cases are governed by the four factors set out in Nken v. Holder and prior cases:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

As Chief Justice Roberts noted for the Court in Nken, that standard looks a whole lot like the standard a district court uses in deciding whether to grant a preliminary judgment. But here's the thing. The grant or denial of interim relief--whether a preliminary judgment, an appeals court stay of a preliminary judgment, or a SCOTUS stay of interim relief provided by the appeals court, such as vacating a stay of a preliminary judgment--is considered discretionary. That doesn't mean anything goes, of course. The Nken factors or very similar ones guide discretion.

However, the discretionary nature of the determination should mean that at each level of review the question is not whether the reviewing court weighs all of the factors somewhat differently but whether the court below abused its discretion in weighing the factors how it did. Here's a quotation from a 2020 Sixth Circuit case of language similar to what one can find in dozens of other cases from other appeals courts: "The district court's ultimate determination as to whether the four preliminary injunction factors weigh in favor of granting or denying preliminary injunctive relief is reviewed for abuse of discretion. This standard of review is 'highly deferential' to the district court’s decision." Similar deference is supposed to apply at each level of review.

Accordingly, the question the Supreme Court should really be answering in ruling on an application to dissolve an appeals court stay of a district court preliminary injunction is this: Did the appeals court abuse its discretion in granting a stay by concluding, given the key factors, that the district court abused its discretion, given the key factors for it?

In reality, the Supreme Court virtually never phrases its inquiry with that kind of multi-layered precision. Why not? Because it's nearly impossible for the human mind to keep track of how each factor weighs in the various levels of deference.

If you don't yet have a headache, consider one area in which the Court has tried to articulate how various layers of review interact with one another. A habeas petitioner who has procedurally defaulted his claim (i.e., who directly or through a lawyer failed to comply with some state procedural rule), can have his default excused by showing one of a small number of excuses that constitute "cause," as well as prejudice from the default. However, as SCOTUS explained in Schlup v. Delo, even a petitioner who cannot demonstrate cause and prejudice to excuse the default may, to avoid the death penalty, have the default excused by presenting new evidence that shows "that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence."

Try to parse that: More likely than not means at least a hair over fifty percent likely. No reasonable juror is a difficult standard for the petitioner to satisfy because courts frequently deem conclusions reasonable even when they regard them as wrong. Saying no reasonable juror would conclude X is even more deferential than reasonableness review of a conclusion that X, because one might think that a position is  unreasonable but then concede that it's sufficiently in the neighborhood of reasonableness that at least some reasonable juror could hold it. But the inquiry gets even more complicated because in this setting the habeas court is supposed to ask whether any reasonable juror would have convicted, which requires taking into account that to convict, a reasonable juror would need to find guilt beyond a reasonable doubt.

How does that all cash out? It combines a neutral standard (more likely than not) with one that places a heavy burden on the petitioner (no reasonable juror) with one that imposes only a light burden (negating proof beyond a reasonable doubt). Writing on a clean slate, I'd be tempted to say that the heavy and light burdens roughly cancel each other out, leaving the petitioner with the burden of showing that it's more likely than not that he's innocent--which is indeed how the Court in Schlup, quoting Murray v. Carrier, characterized the burden: it requires a showing that the proceedings under challenge "probably resulted in the conviction of one who is actually innocent." But then in House v. Bell, the Court characterized that same standard as requiring a "stringent showing," which seems like a substantially higher threshold than more likely than not. So it remains a mystery what the layered interaction of the three standards actually produces.

The key point here is that the human mind has great difficulty applying legal standards to legal standards to legal standards. It's a bit like the imaginative exercise required for an actor to play a role within a role. Consider 64-year-old Victoria Clark, who portrays a teenager inhabiting a prematurely aging body in Kimberly Akimbo, Tom Hanks as a boy within a man's body in Big, or John Travolta and Nicolas Cage trading faces in Face/Off. Those are all great performances because of the challenge, and yet they're still merely roles within roles, rather than the true analogy here: roles within roles within roles.

The mental challenge of applying three or more layers of varying legal standards probably explains why, in deciding whether to grant interim relief of interim relief of interim relief (as the Supreme Court was ostensibly deciding in United States v. Texas), the courts typically give up and just make a gestalt judgment.

What's troubling about the SCOTUS denial of the application to lift the administrative stay last week is not the possibility that Court weighed the matter on an all-things-considered basis. What's troubling is that in that overall calculus, a majority of the Justices ended up siding with Texas (even if only preliminarily) in its effort to re-fight the Civil War.