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On Friday night, a large chunk of liberal America freaked out. The Supreme Court had issued an administrative stay upon the district court's order, which had directed the White House to start feeding millions of Americans. But then it got worse: It turned out, the stay was issued by none other than Justice Ketanji Brown Jackson, acting alone. It was a collective WTF moment. Why would she do that? Had she crossed over somehow?! On social media, I posted a piece by Prof. Steve Vladeck of Georgetown Law that I thought explained what had happened. But it turned out to be a bit too dense for many non-lawyers to process, so yesterday I wrote out an explanation in an attempt to make the explainer more accessible. I'm reprinting it here. But before we get into it, I want to urge everyone to start from a basic premise: Justice Jackson was trying to HELP not HURT here. People who leapt to the conclusion that she is part of some evil SCOTUS plot to deny food to starving children need to take a breath. This is exactly the reaction that the media's click bait headlines sought to drive. I find it helpful to assume goodwill from the three liberal judges and work backward from there. It actually is a good practice with anyone whose heart and head are in the right place—particularly in the comments section on social media. With that out of the way, let's walk through what happened. The background A federal judge ordered the government to fully fund SNAP benefits for November. The government decided to appeal that order. That was the really basic evil thing that started this all off. Why appeal a judge's order asking you to feed hungry people, like you should do under the law anyway? Meanwhile, the White House also asked for an "administrative stay" — meaning a temporary pause of the judge's order so that the appeals court can consider the appeal. That was a dangerous move, as I'll explain below. The appeals court said "no" to the administrative stay late Friday afternoon. So the government appealed that to SCOTUS. The way it works is this: For each circuit, the justice assigned to oversee it makes an initial determination on emergency requests. Justice Jackson handles such matters for the First Circuit, and on Friday evening she stepped in and issued the administrative stay. But, but, but…why?! Fair question. To understand, we need to play a bit of Chess. Or in this case, Hearts. Taking the trick even if it's painful Justice Jackson's order said in effect: "We're pausing the judge's order while the First Circuit considers the stay-motion, and this pause will end 48 hours after the First Circuit decides."  This was the right move to make. Justice Jackson used the tools she had to force a faster process rather than let things drag indefinitely. Why is that? If the district judge's order were allowed to go into effect immediately, it might get legally messy. And if the case got delayed as a result, millions might go without benefits. But what could cause that delay? If Justice Jackson didn't grant the administrative stay, there was a strong possibility that five radical justices on SCOTUS would step in and grant one anyway. They're allowed to do that, and she knew this. And here's the thing: They could do it potentially with no deadline. The district court order could conceivably languish in legal limbo for a long time. So she took control of the case the only way she could. If this were a Hearts game, she "took the trick"—and some heart points in the process—but also and critically assumed control of play. Now the pause is temporary, it ends 48 hours after the appeals court acts, and she has signaled the appeals court must act quickly. Her other option was to deny the administrative stay, but then as I discussed above the full Court could weigh in to overrule her. If the full Court granted the administrative stay, it might have stretched out for weeks (or more) before a decision came—while still blocking the judge's order. She reduced the chance of that by acting. Justice Jackson's stay has an automatic time-limit, so the appeals court is under pressure. In that sense, she chose "the least-bad option" given the messy facts and timing. What now? Justice Jackson's stay wasn't a final ruling on whether the government is right or wrong. The stay simply pauses the lower court's order while the appeals process catches up. That's order should come out, perhaps even by tonight or tomorrow. She definitely wasn't endorsing the lower court's order, nor was she giving the government a permanent win. The stay is quite temporary, and she's hoping the First Circuit issues a full opinion soon. Appellate procedure can be hard even for experienced lawyers to parse at times. I'm certain her clerks and she weighed all options and gamed this out before she acted. We don't know how SCOTUS will rule in the end, but she took away their power to delay the decision indefinitely by setting out the timeline herself. It's ironic because Justice Jackson is actually one of the biggest critics of administrative stays issued on the emergency or "shadow" docket. And here she was, cleverly using the system against the majority. ___ One cool update before I go: My fundraiser with host Heather Cox Richardson (featuring Lin-Manuel Miranda and Hillary Clinton) raised $28,000 earlier this week. Woohoo! The folks from Latino Vote are thrilled. They keep emailing me updates, marveling at the rush of support from around the country. The event on November 18 in NYC still has tickets available, and I'd love to push that number still higher! And if you can't attend or just want to donate a smaller amount, you can also do so. Every bit helps. The Latino Vote is the most crucial swing bloc for the 2026 midterms. If you want your money to be used smartly and strategically, backing organizations like Latino Vote, which can lock in the big shift we saw last Tuesday, is the best use of your money now. Help build on the momentum, and let's crush the GOP next year in a blue tsunami. I want to see Latinos back in the 68 percent range for Democrats. We can do this! |
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