Steve VladeckMar 3
1/9: In the New York redistricting case, Justice Alito's justification for why #SCOTUS even had *jurisdiction* to issue a stay is based upon a remarkably misleading portrayal of the state court proceedings. I realize this is technical, but I wanted to write a short thread to explain the shadiness:
Show threadSteve Vladeck
2/9: In a nutshell, and *unlike* what's true for cases that come from the lower federal courts, #SCOTUS can review state courts only once the highest state court that *could* have ruled on the issue *did* rule on the issue. Here, that's New York's highest court, i.e., the "Court of Appeals."

28 U.S. Code § 1257 - State co...
28 U.S. Code § 1257 - State courts; certiorari

LII / Legal Information Institute
Mar 3 at 1:59pmWeb
Show threadSteve VladeckMar 3
3/9: In this case, after losing in the trial court, Rep. Malliotakis and the other defendants *simultaneously* sought relief from NY's highest court *and* its intermediate court, the "Appellate Division." On February 11, the Court of Appeals said "you have to go to the Appellate Division first":

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Show threadSteve VladeckMar 3
4/9: Instead of waiting for the Appellate Division to rule, the defendants then went straight to #SCOTUS — filing their applications for emergency relief the very next day, i.e., February 12. But on February 19, the Appellate Division *did* rule, and it denied the applications for stays:

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Show threadSteve VladeckMar 3
5/9: At that point, nothing would've stopped Malliotakis and the other defendants from going back to the NY Court of Appeals and asking it for relief again, now that the intermediate court had said no. Instead, they filed ... nothing. That fact, alone, should have deprived #SCOTUS of jurisdiction.
Show threadSteve VladeckMar 3
6/9: Now come back to what Justice Alito wrote about all of this. Read the last sentence here closely: Alito makes it seem as if the Court of Appeals' February 11 transfer to the Appellate Division came *after* the Appellate Division had already denied a stay. But it came *eight days beforehand.*
Show threadSteve VladeckMar 3
7/9: Alito thus claims (in the next sentence) that the applicants had "nowhere else to turn" for relief besides #SCOTUS, entirely because he asserts that the Court of Appeals' 2/11 ruling transferring the case to the Appellate Division was *effectively* the final word of the state's highest court.
Show threadSteve VladeckMar 3
8/9: But he can only make that claim by distorting the order of events, and by igoring the fact that the applicants could have gone back to the Court of Appeals after the Appellate Division's 2/19 ruling, but *chose not to.* Thus, the ground on which Alito rested #SCOTUS's jurisdiction is bollocks.
Show threadSteve VladeckMar 3
9/9: This may seem hypertechnical, but it underscores the broader point I made in "One First" about *both* of the Court's grants of emergency relief last night—that the Republican appointees' impatience is leading them to run over settled legal constraints to reach the merits in these cases. /end

214. The Court's (Selective) I...
214. The Court's (Selective) Impatience is a Vice

The only theme uniting Monday night's twin grants of emergency relief is the Republican appointees' willingness to upend long-settled limits on the Court's power when, but only when, they *want* to.

One First
Show threadvolkrisMar 3

@stevevladeck.bsky.social But Alito addresses your concern in his concurrence by emphasizing the timing aspect.

He says that effectively the state courts have run out of time, so to wait around for another appeal to process would have been no appeal at all.

Alito cites precedence based on such concerns for timing, so in his mind this is settled the other direction.