Tonight, the Court extended the administrative stay in Rollins v. RI Council of Churches for 48 hours. This order blocks the TRO that required the Trump Administration to immediately pay out billions for the Supplemental Nutrition Assistance Program (SNAP). Justice Jackson dissented from the extension of the administrative stay, and from the application altogether.
The order used an unusual locution:
The application for stay presented to Justice Jackson is referred to the Court.
Do you see it? The order uses the passive voice. I could only find a handful of entries on the Supreme Court’s docket with this construction, and none in the modern era.
By contrast, usually the structure is that the Circuit Justice affirmatively refers the application to the full Court.
Just last week, the order in Trump v. Orr provided:
The application for stay presented to Justice JACKSON and by her referred to the Court is granted.
The order in Boyd v. Ivey provided:
The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is denied.
There were thousands of hits with this structure: “and by him referred” or “and by her referred.”
What do we make of the use of the passive voice in Rollins? Is it possible that Justice Jackson would have summarily denied the application, and did not refer it to the Court? Did the Chief Justice, or the majority of the Court, override Jackson’s decision, and involuntarily refer it to the Court?
I would note that Justice Jackson’s earlier orders in this case were a bit unusual. Her administrative stay would “terminate forty-eight hours after the First Circuit’s resolution of the pending motion, which the First Circuit is expected to issue with dispatch.” I don’t recall seeing a forty-eight hour clock. Jackson also required the Solicitor General to file a supplemental brief the same day, and the Council’s response was due at 8:00 a.m. the following day.
I wonder if the Court was not consulted with this strange briefing schedule, and then decided to just override Jackson? So much can be inferred from the passive voice.
