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Stays of Injunctive Relief Pending Appeal: Why the Merits Should Not Matter
Jill Wieber Lens*
Abstract
In Nken v. Holder, the Supreme Court delineated the standards that must guide a court’s discretion in deciding whether to stay injunctive relief pending appeal. A “critical” factor is whether the stay applicant has made a “strong showing” of her likelihood to succeed on the merits of the appeal. Because of the critical label, it is not surprising to see lower courts issue long decisions extensively predicting the decision of the appellate court on the merits. To preserve her interest in judicial review, the stay applicant must effectively show that she will win
the appeal.
Stays play an important role in appellate judicial review but have received little academic commentary. This Article is the first to specifically argue against the evaluation of the merits within the decision to stay injunctive relief pending appeal. An evaluation of the merits, and the current emphasis on the merit factor, is not supported historically, theoretically, or practically. Instead courts should look to whether a stay is necessary—due to any potentially changing circumstances, harm to the parties, and the public interest, similar to the other three Nken factors. Courts must also explain their application of these stay factors. Otherwise, their decisions seem unjustified, inconsistent, and illegitimate.
| I. Introduction | 1320 |
| II. The Standard for Staying Injunctive Relief Pending Appeal | 1321 |
| A. Power to Stay | 1321 |
| B. Standard | 1323 |
| C. High-Profile Recent Applications | 1326 |
| 1. Planned Parenthood of Greater Texas Surgical Health Services v. Abbott | 1326 |
| 2. Whole Woman’s Health v. Lakey | 1328 |
| III. Questioning the Evaluation of Likely Success on the Merits | 1329 |
| A. Lack of Historical Support | 1329 |
| B. Lack of Theoretical Support | 1336 |
| C. Practical Problems | 1341 |
| 1. General Awkwardness | 1341 |
| 2. Lock-in Effect | 1342 |
| D. So What Should Be Considered? | 1346 |
| IV. Legitimacy Concerns | 1349 |
| A. Failing to Explain: Kitchen v. Herbert | 1349 |
| B. No Reason for the Lack of Explanation | 1353 |
| C. How Lack of Explanation Hurts the Legitimacy of Stay Decisions | 1354 |
| V. Conclusion | 1358 |
* Associate Professor of Law, Baylor University School of Law (J.D., University of Iowa College of Law; B.A., University of Wisconsin). The author thanks Todd Pettys, Luke Meier, Rory Ryan, and the participants at the 2014 Central States Law School Association Scholarship Conference for their comments on this work. The author also thanks Chris Galeczka, Anthony Lucisano (Baylor J.D. 2016), Mitch Garrett (Baylor J.D. 2016), Jas Gill (Baylor J.D. 2016), and Phil Segura (Baylor J.D. 2014) for their valuable research assistance. Any mistakes are, of course, the author’s.
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I. Introduction
Even though reversals on appeals are supposed to have the effect of undoing the lower courts’ decisions, appellate courts do not actually have an “undo” button. Circumstances may change in the meantime, such that it doesn’t really matter how the appellate court rules. Suppose a lower court determines that a state can enforce a law requiring every doctor who performs abortions to have admitting privileges at a local hospital. An appeal is filed, but circumstances change in the meantime—clinics close if their doctors cannot comply. The appellate court can reverse the lower court’s judgment and cease enforcement of the law, but the clinics are already closed. And they have been closed for so long that they are unlikely to reopen. There is no undo button, and the practical circumstances, not the appellate court, controlled the outcome. Once the egg is scrambled, even a mighty appellate court can’t unscramble it1
.
Courts do have one remedy to stop the egg from becoming scrambled in the first place—a stay pending appeal. Stays have played a part in numerous, recent high-profile cases, even if they go unnoticed. There is a reason that same-sex marriages did not (usually) automatically begin even after a court had enjoined enforcement of a state’s ban on same-sex marriage. That reason is a stay.
The Supreme Court has delineated the four factors that federal courts must use to evaluate requests for stays of injunctive relief pending appeal2. A “critical” factor is whether the stay applicant made a “strong showing” that it is likely to succeed on the ultimate merits of the appeal3
. Thus, to obtain a stay—to maintain the usefulness of an appeal—an applicant has to show, strongly, that she is likely to win on appeal.
The emphasis and evaluation of the merits are inconsistent with the history behind, the theory underlying, and the practical circumstances of granting stays. English chancery court practice—the same authority the Supreme Court looked to when defining federal courts’ power to issue a stay—did not include an evaluation of the merits of the appeal4. Additionally, a focus on the merits is not supported by the court-defined main purpose of stays, which is to enable meaningful judicial review, both for the appellate court and the parties. Last, practically, an evaluation of the merits makes little sense given the time frame and the unfortunate natural inclination to match the later ultimate merits decision to that initial merits prediction. Considering the merits can only get in the way of evaluating the factors that are consistent with history and theory: whether the circumstances could change in a way that would interfere