The two companies that manufacture the abortion pill mifepristone went to the Supreme Court on Saturday with an urgent request.
A federal appeals court had issued a ruling that would allow patients to get prescriptions for the drug only through an in-person doctor visit — something that’s impossible in states that ban almost all abortions.
Danco Laboratories and GenBioPro were hoping to have that ruling put on hold until the Supreme Court could consider their appeal.
Two days later, Justice Samuel Alito — hardly a supporter of reproductive rights — granted the companies’ request, issuing what’s known as an “administrative stay.” But he did so unilaterally, acting without concurrence from other justices and with no explanation of his reasoning.
Legal experts say this kind of fast-moving intervention is becoming more and more routine. Recently, the Supreme Court has issued more administrative stays than ever before.
“The pace has more than doubled just over the last few years,” Steve Vladeck, a Georgetown University law professor who studies the federal courts, told Straight Arrow.
From 2014 to 2022, the court issued 33 such stays, Vladeck said. But in just three and a half years since then, it has already issued 38.
Like the other administrative stays, the one that Alito issued Monday reflects a broader shift as the nation’s highest court increasingly relies on emergency orders, often referred to as its “shadow docket,” to quickly resolve high-stakes disputes with national impact.
The speed comes with a cost, however: transparency. These orders lack reasons for how a justice rules — and offer no hints about how the court might decide cases in the future.
What is an administrative stay?
An administrative stay issued by a single justice has an immediate impact. Whatever a lower court has ruled in a case that’s being appealed to the Supreme Court cannot take effect until the stay is lifted or the full court issues an opinion. That could be weeks or even months.
For instance, when a lower court ruled that President Donald Trump’s firing of Rebecca Slaughter, a federal trade commissioner, was unlawful, Chief Justice John Roberts issued a stay that is keeping Slaughter off the job. That was last September. The court heard oral arguments in Slaughter’s appeal last December but still has not released a ruling.
Historically, this practice has not been commonplace, said Zachary Shemtob, executive editor at SCOTUSblog.
“Even among the justices it’s a bit of a controversial practice, to some extent, and there is a sense these should be used sparingly,” Shemtob, who has covered the Supreme Court for 15 years, told Straight Arrow. “But here we are.”
Critics argue that justices need to explain why they issue these orders.
“We expect judges to explain their rulings because the explanations are how they persuade us that they are exercising judicial, rather than political, power — not necessarily so we agree with their principles, but so we at least agree that the rulings are based on principles,” Georgetown’s Vladeck told Straight Arrow. “The more courts are handing down rulings with statewide or nationwide effects with no explanations, the harder it is for judges and justices to earn that trust.”
‘Emergencies’ on the rise
The reason for the increase in stays may be simple, however: More and more, parties in significant litigation are filing motions citing judicial “emergencies.”
For example, lawyers for one of the mifepristone manufacturers said that a ruling by the 5th U.S. Circuit Court of Appeals “injects immediate confusion and upheaval into highly time-sensitive medical decisions.” Further, the lawyers pleaded, the lower court ruling left patients, pharmacies, doctors and the companies “all to guess at what is allowed and what is not.”
Vladeck said multiple factors are at play.
“As for why, I think some of that is because the court is being asked for such relief a lot more often; some of it is because we’re seeing more lower-court rulings producing immediate statewide or nationwide consequences, like last Friday’s Fifth Circuit ruling in the mifepristone case,” Vladeck said. “Some of it is because the court is more used to granting this kind of relief — familiarity breeds repetition.”
“This is all part of the ‘shadow docket,’” Vladeck said, “because it’s an increasingly important part of how the Supreme Court uses unsigned and typically unexplained orders in ways that can and often do produce massive and immediate real-world effects.”
The ‘shadow docket’
The court is exercising its power to issue quick rulings more frequently during Trump’s second term, often dealing with some of the 252 executive orders he has signed in a little more than 15 months.
Repeatedly, lower courts have found Trump’s orders to be unlawful. But, repeatedly, the Supreme Court has sided with the administration when it files emergency appeals. It has lifted temporary injunctions while underlying litigation moves through the lower courts. The high court’s emergency orders have dealt with such controversial issues as immigration, federal agency firings, and foreign aid.
“This emerges from, one, the administration being more aggressive and filing these applications with the court when it loses on these issues,” Shemtob said. “I think the fact that parties have seen so many more of these applications being accepted and decided by the court incentivizes parties in general to file more of them.”
When he stayed the abortion pill ruling, Alito told Louisiana, which is attempting to outlaw prescribing abortion medication by telemedicine, and the Food and Drug Administration to respond by Thursday. The stay expires next Monday — unless Alito or the full court extends it.
Either way, an explanation is unlikely.
“We might like those effects in some cases and dislike them in others,” Vladeck said. “But it is, in the long term, not a healthy way for unelected judges to exercise power.”
Round out your reading
- First, it was the schools. Now they’re coming for your cellphone at work.
- Why one of America’s top economic forecasters is worried about a recession.
- AI companies may not be adhering to their own guidelines — with potentially deadly outcomes.
- Data centers are a thorny issue for Democrats. Maine shows us why.
- We’re building a new Straight Arrow. Help us shape our future by taking our survey.