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June 4, 2020

Justice Sotomayor stays federal judicial orders to transfer vulnerable Elkton prisoners pending Sixth Circuit appeal

As noted in this post, last week the full Supreme Court denied, by a 6-3 vote, a request by the federal government to stay a federal district court order to release or transfer vulnerable inmates from the Elkton federal prison.  But this ruling was, in essence, based on a technicality, and today Justice Sotomayor via this order granted the stay the feds were seeking:

IT IS ORDERED that the District Court’s April 22 and May 19 orders are hereby stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Sixth Circuit and further order of the undersigned or of the Court.

I believe the Sixth Circuit panel is due to hear argument tomorrow on this matter, but this stay enables federal officials to keep moving slowly on moving vulnerable prisoners out of a prison that has had hundreds of COVID cases and a handful of deaths.

Prior related posts:

UPDATE: Amy Howe has this lengthy and effective posting at SCOTUSblog about the Elkton litigation and the stay granted by Justice Sotomayor.

June 4, 2020 at 07:20 PM | Permalink


Sotomayor didn't refer it to the full court because she didn't want any concurring opinions to be issued that would likely be used to bolster the government's case. The stay was inevitable, as there are no longer five justices on the court who would ever agree to ordering release of any prisoners due to dangerous prison conditions. Roberts dissented in Plata, and I can't believe Kavanaugh would have come out the other way. Justices in that Martin-Quinn ideological space will never find conditions sufficient to require release of prisoners, and the best she can do at this point is try to keep a precedent off the books.

Posted by: Jacob Berlove | Jun 5, 2020 1:56:31 AM

I share your essential perspective, Jacob, though this still seems like a missed opportunity to (a) write something herself while granting the stay --- e.g., the order was very broad, but a subset of vulnerable prisoners ought to be moved ASAP, or (b) to explain in dissent why she (and other Justices?) do not think the balance of equities justify a stay. As it stands, she actually herself created more precedent against these releases than if there had been a court vote for a stay (which likely would not have come with an opinion. though maybe Justice Alito already had one drafted).

I have not read all the papers, so I do not want to weigh in extensively without having had a chance to review all the details. But this is not a good look for those eager to see courts be more proactive in forcing BOP/DOJ to do better.

Posted by: Doug B | Jun 5, 2020 11:48:48 AM

Given the way that the prior order was written, I think it was clear internally how the votes would break down if the government expanded its stay request to cover the trial court's second order. I think Justice Sotomayor decided that now was not the time to fight this battle over the merits of the two trial court order.

Posted by: tmm | Jun 5, 2020 3:16:27 PM

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