Supreme Court Stays to State Courts

a few thoughts on the relationship of 28 U.S.C. 1257 and 28 U.S.C. 1651(a)

Earlier this week, in Malliotakis v. Williams, the Supreme Court stayed a New York trial court decision requiring a “crossover” district. The biggest controversy about that interim ruling has not been the merits but rather the Court’s jurisdiction. 28 U.S.C. 1257 limits the Court’s certiorari jurisdiction over the state courts to “Final judgments or decrees rendered by the highest court of a State in which a decision could be had.” And while this statute sometimes has been interpreted with questionable flexibility, it imposes an important and distinct constraint on Supreme Court jurisdiction over state courts.

The problem is the trial court decision in Malliotakis is not a “final judgment or decree rendered by the highest Court of a State in which a decision could be had.” The highest court would be the New York Court of Appeals, which has not taken part in the merits at all, and may not have even issued a final decision on whether to issue a stay. (In addition to Justice Sotomayor’s dissent, the most timely and thorough treatment of this is — as usual — on Steve Vladeck’s Substack, which is for paid subscribers, but worth paying for.)

What can be said to justify the stay? The Court did not write anything, but Justice Alito wrote a concurring opinion making two or three distinct arguments. One argument is that the decision really was final, because the New York Court of Appeals did not issue a stay when they were asked to do so. The problem, as Justice Sotomayor and Steve Vladeck discuss, is that that’s probably not the right characterization of the procedural posture. I find this confusing, because New York appellate procedure is very confusing to outsiders, and because the briefs focused a lot on the specific need to issue a stay by a certain date in February (which is reminiscent of the issue of federal jurisdiction in AARP v. Trump) but from what I’ve read so far, the critics seem to have the better side of this argument.

Another argument, which might or might not be distinct from the first, is that the Supreme Court did something very similar in National Socialist Party of America v. Skokie, rejecting by a 5-4 vote Justice Rehnquist’s objection that “I simply do not see how the refusal of the Supreme Court of Illinois to stay an injunction granted by an inferior court within the state system can be described as a "final judgment or decree rendered by the highest court of a State in which a decision could be had.”

But the Skokie majority rested on two important facts — that the Illinois Supreme Court had in fact denied the stay (AND “leave for an expedited appeal”) and that the First Amendment itself required “strict procedural safeguards, including immediate appellate review,” or “[a]bsent such review, the State must instead allow a stay.” Neither fact is present in Malliotakis, where it is not clear that the New York Court of Appeals really did deny the stay, and where the case does not concern the First Amendment, which has been held, rightly or wrongly, to require special procedural protections that have not extended to colorblindness doctrine.

But Justice Alito makes a different point, which I think might actually be right, although I have not seen it discussed extensively. Perhaps the finality requirement does not actually apply to stays. As Justice Alito puts it:

We are likewise authorized to grant a stay because it is “necessary or appropriate in aid of [our] jurisdiction.” 28 U. S. C. §1651(a). That requirement is met when a stay is “necessary to prevent a state court from so interfering with a federal court’s consideration or disposition of a case as to seriously impair the federal court’s flexibility and authority to decide that case.”

As I understand it, the argument is that Section 1257’s finality requirement restricts the writ of certiorari, but it does not of its own force restrict other writs, which are authorized under a different statute, Section 1651(a), aka The All Writs Act. To be sure, the All Writs Act has its own limitations. It does not expand the jurisdiction of the federal courts and authorizes only writs that are “in aid of” the jurisdiction granted by other statutes. But at least in some cases, surely that will be true of stays.

Imagine, for instance, state court litigation about the execution of a prisoner who is due to be executed at midnight: the state supreme court simply has not ruled on a pending stay request as the clock ticks toward the fatal hour. In such a case, the Court can surely act to stay the execution and preserve its own jurisdiction over the case. Because the Court will (potentially) eventually have jurisdiction under Section 1257 to review the final order when it is issued, it has the power under Section 1651 to preserve that jurisdiction as the litigation progresses. And indeed, in Justice Alito’s dissent in the Yeshiva University case he made a similar point, citing several precedents that seem to support this view of the Court’s stay authority.

Now, even if Justice Alito and I are right that the Supreme Court can issue stays in non-final state court litigation, this still leaves several open questions.

1: Was issuing a stay really “necessary or appropriate” in Malliotakis?

A: The fact that there was further state court review and (as I just discussed above) that the New York Court of Appeals maybe had not denied a stay might make it unnecessary for the Court to protect the status quo if the state courts were going to do it themselves. But asking this question through the “necessary and appropriate” lens of the All Writs Act rather than the finality lens of 1257 might well make a difference, especially if what is involved is an equitable judgment about the pointlessness of further proceedings.

B: And putting that aside, what was the threat to the Court’s future jurisdiction? Unlike a stay of execution, the threat to the Court’s future jurisdiction was less vivid, and in many cases a wrongly-eliminated district, unlike a wrongly-killed person, can be brought back by appellate decree. Justice Alito argues that the issue arises from the Court’s own equitable Purcell principle, which limits the power of federal courts to interfere in elections as they draw too near. I’m not sure what I think about that claim; again, it seems most analogous to me to the issues in AARP, where I thought a stay might well be appropriate, but ironically Justice Alito did not.

2: What other principles might be necessary to harmonize Section 1257 and Section 1651 in state courts?

It is a well-known problem that the Court’s interim rulings on stays and such can quickly eclipse any future rulings on the merits because once the Court says enough about its view of the merits, that generates a vertical precedent that effectively resolves the rest of the litigation. Perhaps it is especially important for the Court to be wary of that problem in stays to state court litigation, where its interim jurisdiction is strictly limited.

And, now, maybe this is a coincidence, but it is interesting that in Malliotakis the Supreme Court majority in fact said nothing about the merits (or anything else). By contrast, in the other interim ruling (Mirabelli) issued at roughly the same time, the Court wrote a per curiam opinion expressing a significant amount about the merits. Mirabelli was in the federal court system where the same finality limitations do not apply. Again, maybe it is a coincidence that the Court treated Malliotakis and Mirabelli so differently, but the different treatment might make sense in light of Section 1257’s looming presence in the background.

3: How should the Court exercise its discretion?

Finally, whatever the legal merits of this interpretation, we should be mindful that it might open up a new big zone of Supreme Court discretion. (Or even if that zone was always technically open, it might well lead to many more such applications, which in turn may lead to more discretionary decisions to grant and to deny, in a familiar dynamic on the shadow/emergency/interim docket.) Whether that is a good or a bad thing is obviously a matter of debate, and will depend in part on how the Court exercises that discretion, and whether it can do anything to dispel the impression that it is engaged in nothing more than ideologically-driven error correction. That is not a new problem, but it is not a solved problem either.

In any event, this interaction between the Court’s stay authority and its certiorari authority over state courts seems to me quite complicated, potentially significant, and worth more attention. Indeed, the potential relevance of the All Writs Act here might make figuring out the general principles of that statute (which are still very poorly understood) all the more important.