This hit the Supreme Court website about 1100 today.
The application to vacate the Second Circuit courts stay was denied. Sotomayor presented the case to the court and the court decided to leave things as is for the time being.
Alito joining put forth an opinion on the denial. IIRC it is uncommon for the Supreme Court to give opinions when they deny Cert. or other applications. Generally is is just “nope”. and that’s the end of it.
Alito wrote:
The application to vacate stay presented to JUSTICE SOTOMAYOR and by her referred to the Court is denied.
Statement of JUSTICE ALITO , with whom JUSTICE THOMAS joins, respecting the denial of the application to vacate stay.
The New York law at issue in this application presents novel and serious questions under both the First and the Second Amendments. The District Court found, in a thorough opinion, that the applicants were likely to succeed on a number of their claims, and it issued a preliminary injunction as to twelve provisions of the challenged law. With one exception, the Second Circuit issued a stay of the injunction in full, and in doing so did not provide any explanation for its ruling. App. to Emergency Application 2. In parallel cases presenting related issues, the Second Circuit has likewise issued unreasoned summary stay orders, but in those cases it has ordered expedited briefing. See, e.g., Order in Hardaway v. Nigrelli, No. 22–2933 (CA2, Dec. 7, 2022), ECF Doc. 53; Order in Christian v. Nigrelli, No. 22–2987 (CA2, Dec. 12, 2022), ECF Doc. 40.
I understand the Court’s denial today to reflect respect for the Second Circuit’s procedures in managing its own docket, rather than expressing any view on the merits of the case. Applicants should not be deterred by today’s order from again seeking relief if the Second Circuit does not, within a reasonable time, provide an explanation for its stay order or expedite consideration of the appeal.
This opinion is very good for us. It says “We understand that we need to let the Second Circuit do its thing, but if the Second Circuit doesn’t provide a full explanation for its stay or if it doesn’t grant expedited consideration, get your asses back here.”
This is a spanking of the Second Circuit, just not as hard as I wanted it to be.