On Tuesday, it worked. Barrett called the 5^thCircuit’s administrative stay “an exercise of its docket-management authority,” declaring that SCOTUS should not “get into the business” of reviewing “a short-lived prelude to the main event.” In other words, because the 5^thCircuit used the magic word administrativeto describe its (indefinite) stay, Barrett refused to consider whether S.B. 4 should be kept on ice while the merits are reviewed. She simply rubber-stamped the 5^thCircuit’s stay, rewarding its shameless gamesmanship. The only silver lining to this is that Barrett appears to recognize the broader pattern “lurking” here: defiant lower courts recasting stays as “administrative” to thwart Supreme Court review for months, with no endpoint in sight. “The time may come, in this case or another, when this court is forced to conclude that an administrative stay has effectively become a stay pending appeal and review it accordingly,” she tsked, sending a warning signal to the 5^thCircuit. “But at this juncture in this case, that conclusion would be premature.” (Barrett did not explain why SCOTUS did not just issue its own injunction against S.B. 4, as it undoubtedly could have.)

Justice Sonia Sotomayor’s sharp dissent, joined by Justice Ketanji Brown Jackson, was far less tolerant of the 5^thCircuit’s duplicity. (Justice Elena Kagan also dissented, in a brief separate opinion, urging that an administrative stay not be used to “spell the difference between respecting and revoking long-settled immigration law.”) Sotomayor noted that the 5^thCircuit “recently has developed a troubling habit of leaving ‘administrative’ stays in place for weeks if not months,” citing stays that dragged on for as long as 85 days. In reality, she explained, this benign-sounding tool has developed into an act of extreme judicial gaslighting. The administrative stay here, she wrote, “not only upends the status quo but also extends that disruption indefinitely.” In the process, it “defeats the purpose of this court’s stay analysis and threatens to evade effective review of this unprecedented law.” This play is largely a repeat of S.B. 8, Texas’ 2021 vigilante abortion ban, which SCOTUS allowed to take effect in the dark of night, without any reasoned analysis—after the 5^thCircuit froze a district court’s injunction with (you guessed it) an administrative stay. (In her opinion on Tuesday, Barrett wrongly claimed that the Supreme Court has never reviewed an administrative stay, evidently forgetting the S.B. 8 fiasco.)

Had the court called BS on the 5^thCircuit and applied its usual standards to the stay, Sotomayor correctly noted, it would have no choice but to halt S.B. 4. When you tot up the balance of alleged irreparable harms here, it isn’t even a close call. On the one side of the ledger, Texas claims to suffer a temporary inability to repel an immigration “invasion.” On the other side, the federal government stands to suffer irreparable harm to its foreign relations, its international obligations to protect individuals fleeing from persecution or torture, and its ability to carry out legitimate immigration enforcement. Meanwhile, noncitizens face unimaginable harm now that Texas can arrest and deport them with zero regard for their rights under federal law. None of these evils can be readily unwound, and the Supreme Court had previously held unequivocally that states cannot arrogate the federal government’s power over immigration policy and enforcement. These facts should have been reason enough for SCOTUS to block S.B. 4 immediately.

Reading the Barrett and Sotomayor opinions side by side, there is a bit less of a delta than you might assume. What’s strange about Barrett’s opinion is that she clearly recognizes the 5^thCircuit’s bad behavior, yet suspends any appropriate response for the time being. A cynic might think Barrett knows that S.B. 4 is obviously unconstitutional but wants to punish the Biden administration for its allegedly lax border enforcement by letting the law kick in for a few weeks. Her opinion implicitly faults both parties, Texas and the federal government, and gives Texas a reprieve this time—to the detriment of immigrants, Latinos, and the basic principle of federal supremacy. “If a decision does not issue soon, the applicants may return to this court,” she cautioned the 5^thCircuit. In the meantime, cruelty and nullification will reign in Texas, but just for an indefinite while.

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A few short weeks ago, the high court announced that Colorado could not enforce Section 3 of the 14^thAmendment to keep an insurrectionist off the ballot because the result would be a “patchwork” of state laws and “nothing in the Constitution requires that we endure such chaos.” It now seems, though, that states eager to usurp federal prerogatives and foment chaos can just hang around the 5^thCircuit and seek extreme forms of relief in the wink-wink disguise of an “administrative stay.” Beware a high court that shows up telling you it’s doing nothing, or empowering an appeals court to do nothing, as it fundamentally upends the balance of powers between state and federal authorities. These procedural manipulations have real-world consequences—namely, open season on people in Texas whom authorities deem to not “look American.” That heinous approach to immigration policy has only ever been the law in this country during America’s most shameful eras. Now, thanks to the Supreme Court’s obtuse inaction, it is again.

• Immigration
• Jurisprudence
• Neil Gorsuch
• Supreme Court
• Brett Kavanaugh
• Clarence Thomas
• John Roberts
• Samuel Alito
• Amy Coney Barrett