For decades, the Supreme Court has insisted that these emergency injunctions should be far rarer than stays. Summarizing the precedents, Justice Antonin Scalia explained in 1986 that such relief should be granted “sparingly and only in the most critical and exigent cir stances, and only where the legal rights at issue are indisputably clear.” It ought to follow that newly minted rights, such as the one the court articulated on Friday, are not “indisputably clear.”
This is not just a technical point; it goes directly to the Supreme Court’s cons utionally mandated (and self-described) role in our cons utional system. As Justice Scalia put it, unlike a stay, which is a short-term order delaying a proceeding, an injunction “does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.”
To provide relief in such a case where the right to relief is not clear is to effectively allow the Supreme Court to go first, ahead of the lower courts — never mind that, as the justices have repeatedly said in the past, “ours is a court of review, not first view,” and that their “primary responsibility” is “as an appellate tribunal.” Using emergency orders pending appeal to change substantive law turns those principles on their heads and arguably exceeds the justices’ statutory authority to issue such relief.