The thing that some people seem to be missing is that while stays like this aren’t uncommon, it also isn’t uncommon for them to be denied. There is a standard of judgment Justices are supposed to be using to decide whether or not to grant these emergency stays. It’s a two part analysis, and the first step is supposed to be the likelihood of the case eventually being ruled in the moving party’s favor. If there’s a reasonable possibility it could be ruled in their favor, you grant the stay, especially if (and this is part 2 of the analysis) that party would suffer some kind of harm if the stay is not granted. However, if there is almost no chance the party will be successful in their lawsuit, they don’t usually grant the stay. That’s what the 11th Circuit Court of Appeals said here. They could have granted the stay, but they said no. Someone else mention Sotomayor doing the same in the Yeshiva University case, and that one, imo, is also a little questionable. The difference, however, is that Sotomayor has no connection, not even a tenuous one, to the case. Thomas, as everyone here seems to agree, is conflicted. He could have avoided this entire controversy by recusing himself, or by letting the entire Court make the decision on the emergency stay request.
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