Appeals court stays injunction

In a surprise decision, an appeals court panel has administratively stayed the great injunction against government social-media company contacts. This administrative stay, furthermore, is indefinite – “pending further orders.” But those orders could come quickly – because the stay order also expedites the government’s appeal.

How the appeals court panel is made up

The case of Missouri v. Biden is now in the hands of the Court of Appeals for the Fifth Judicial Circuit. After Judge Terry A. Doughty issued his original injunction, the government appealed. They then asked Doughty to stay his own injunction; he refused. Accordingly, the government filed an emergency motion for stay with the Appeals Court.

The Fifth Circuit assigned a three-judge panel – and the membership of that panel might be cause for disquiet. The panel members are:

• Carl E. Stewart, age 73, Democrat, who received his appointment from President Bill Clinton. He took a seat that Congress created in the Fifth Circuit Court. Judge Stewart was in his teens during the Civil Rights era of the 1960s. What he witnessed there might have induced him to try to use his position as a judge for “social change.” He served for seven years as Chief Judge of the Fifth Circuit (2012-2019). Details on his jurisprudence are sketchy.
• James E. Graves, Jr., age 69, Democrat, who received his appointment from Barack Obama. Critical race theory appears to inform his jurisprudence, which also includes several decisions and dissents involving sexual misconduct, either of whites against non-whites or persons in authority over those in their charge.
• Andrew Oldham, 45, Republican, who received his appointment from President Donald J. Trump. He barely “squeaked through” the bitterly divided Senate of 2018. As a recent appointee, his jurisprudence is relatively thin – but his associations are unmistakably conservative.

How they voted

The “unpublished order” that came down yesterday afternoon is technically a per curiam order.

Most such orders are unanimous – but they do not have to be. A per curiam order is one in the name of the entire court – or, as in this case, a panel – and not in the name(s) of any particular member(s) of that court.

Subject to that disclaimer, the most likely vote on this order is 2-1, with Stewart and Graves outvoting Oldham. Graves especially might have the judicial temperament to oppose anything coming from a conservative.

The order does three things:

• Expedites the appeal “to the next available Oral Argument Calendar.” The Court’s web site does make its Oral Argument Calendar available for public view. The July Calendars passed this last week. Thus far the next Calendar not having any bookings is the week of September 5-8. So the practical meaning of the Court’s expedition of this appeal is impossible to determine.
• Grants a “temporary administrative stay,” presumably of the Big Injunction, “until further orders of the court.” Which means an indefinite stay, except that the panel expedited the appeal.
• Defers the emergency motion for stay pending appeal to “the oral argument merits panel which receives this case.” This suggests that the three judges who voted to grant this stay might not be the same three who will hear oral argument on the motion. The meaning of “merits panel” is not clear, because Missouri v. Biden has not yet come to trial.

Reaction

Public reaction came first in the form of these tweets:

Zoe Tillman is a court reporter for Bloomberg News. Perhaps for that reason, at least half the reaction to her tweet was in praise of the stay. But one user noted correctly the composition of this panel:

The only way “the overall Fifth Circuit” will hear this case, is en banc. One user did point out the composition of the full Appeals Court, or at least its active members.

Actually, that last is wrong. The Fifth Circuit currently has sixteen active members, of whom five received their appointments from liberal Presidents. One active seat is currently vacant: Judge Gregg Costa resigned effective August 31, 2022. President Biden has a nomination pending to that seat.

Some Twitter users cynically expect the stay to last through the Election of 2024. Again, that’s not likely, given that the “motion panel” expedited the appeal. Besides, another user cited a 2020 ruling saying temporary administrative stays in expedited appeals are “routine.”

In fact the government asked for a ten-day administrative stay, to give them time to appeal to the Supreme Court. A Supreme Court petition is not likely to happen immediately, given the order to expedite the appeal.

So for now, the government’s relationship with social media companies reverts to status quo ante. Which is the more reason to move to sites that consistently refused to obey government censorship orders.