1) No make-up next Monday (September 15). About half the class has a conflict, so it makes no sense to hold the session. Normal class both days next week. Make-ups TBD.
2) During our shadow-docket discussion, I forgot to mention the connection between the increase in stay petitions to SCOTUS and the increase in cert before judgment--the Court responds to a petition for a stay pending review to the court of appeals by treating it as (and granting) a petition for cert before judgment and taking up the entire case. See, for example, United States v. Texas. This also came up in Trump v. Boyle. The Court granted a stay in a firing case, based on a prior order in a firing case; Justice Kavanaugh concurred to argue the Court should have granted cert before judgment. Note that Kavanaugh's concurrence in CASA requires additional cert-before-judgment, because he insists that the Court must resolve the "interim" merits earlier in cases.
3) Shane asked for examples of the Court making a stay decision, then coming out the other way. The most prominent example of the Court staying the injunction but then affirming is Allen v. Milligan (a redistricting case from Alabama, on mandatory review of a 3-judge district court). Two examples of the Court refusing to stay the injunction but eventually reversing on the merits--Biden v. Texas and US v. Texas.
4) Point # 3 somewhat relates to another piece of the shadow docket controversy--whether the Court should write something to explain its stay decisions. In Labrador v. Poe and in CASA, Justice Kavanaugh wrote concurrences to justify not writing--the concern that writing "locks" the Court into a position on the merits.
5) The Court granted the latest cert before judgment today, in the tariffs case (actually two consolidated cases). This involves consolidation of cases at different stages--plaintiffs sought cert before judgment in one case while the government sought cert from a Federal Circuit decision in the other.
