The Supreme Court prudently sidestepped a dispute the shutdown settlement will moot. It did not, as the AG implies, slap down the lower courts.
Attorney General Pamela Bondi was crowing last night on X about how the Justice Department had “just secured an administrative stay” from the Supreme Court in the case involving the Trump administration’s refusal to fund November’s disbursement of Supplemental Nutrition Assistance Program (SNAP) funds — around $8 billion — to 42 million Americans. Bondi suggested that, by this further suspension of a Rhode Island federal district judge’s temporary restraining order (TRO), directing the Agriculture Department to make the payment, the justices had decided to “prevent further judicial upheaval for the SNAP and Child Nutrition programs.”
That is not what happened at all.
I wrote about the case earlier this week (here and here). On Sunday, the Justice Department lost its appeal of the TRO issued by Obama appointee Judge John J. McConnell Jr. The appellate ruling by a three-judge panel of the First Circuit (one Obama and two Biden appointees) was unanimous. The Circuit’s decision started the clock running on a 48-hour deadline that had been imposed Friday night in an administrative stay issued by Justice Ketanji Brown Jackson (the Supreme Court justice to whom emergency appeals from the First Circuit are initially directed).
An administrative stay is just a brief freezing of the status quo so that a higher court, to which an emergency appeal has been made, has a chance to understand the controversy before making a decision that could cause irreversible harm.
Given that Judge McConnell’s TRO ordering the November SNAP payment was due to go into effect at midnight Friday — i.e., just a few hours after the administration appealed it to the First Circuit and, then, to Justice Jackson — the First Circuit should have ordered an administrative stay. When it was derelict in doing so, Justice Jackson properly ordered one.
Still, in light of the stakes involved — food-purchasing assistance for needy people — Jackson used the occasion of issuing the stay to nudge the First Circuit to decide the emergency appeal expeditiously; she further added the condition that her administrative stay would expire 48 hours after the First Circuit’s ruling. By that condition, she clearly hoped to nudge her Supreme Court colleagues into getting familiar with the controversy so they’d be in a position to rule quickly if — as seemed likely — the First Circuit ruled against the administration and the Justice Department then appealed.
On Sunday evening, the First Circuit ruled against the administration and the 48-hour clock began to run — it would thus have elapsed yesterday (Tuesday evening). By that point, however, the Senate had struck a deal to end the government shutdown that was the administration’s rationale for not making the November SNAP payment.
Nevertheless, because the Senate was still wrapping up and voting on the deal — and because the deal could not be final until (a) the House voted on it, which, logistically, couldn’t happen earlier than Wednesday (today); and (b) the president then signed it — Jackson asked the Justice Department to inform her Monday regarding its position. Solicitor General D. John Sauer responded that, while the government did intend to press its appeal of the First Circuit’s decision upholding the TRO, the government’s appeal would be moot if the shutdown ended. That’s because the deal ending the shutdown would fully fund SNAP, allowing the payments to go out forthwith.
Obviously, the Supreme Court does not want to wade into the SNAP dispute unless it has to. So in an unsigned order late yesterday, the full Court extended Justice Jackson’s administrative stay through Thursday (tomorrow, November 13). This provides time for the expected House approval of the Senate deal to end the shutdown, which should happen today — but could be delayed a bit if House members, who have been in recess and need to get back to Washington, encounter travel nightmares akin to what the rest of us have been experiencing for the past couple of weeks.
President Trump has signaled that he will sign the bill codifying the deal as soon as it reaches his desk.
Justice Jackson dissented from the Court’s extension of her administrative stay to Thursday. This signals that she believes Judge McConnell’s TRO and the First Circuit’s affirmation of it are correct. It’s unsurprising that the Court’s most progressive justice felt the need to send such a signal after the flack she took from the left on Friday night for issuing the administrative stay, but her dissent is otherwise inconsequential.
To be clear, then, the Supreme Court did not reverse the lower courts or indicate in any way a conceit that those courts were wrong in ruling against the administration. The justices simply took Solicitor General Sauer at his word that if the shutdown ended, the controversy would be moot, the November SNAP payment would be made, and there would be no further need for the Court to intervene.
I don’t think the justices get annoyed when, for example, the Solicitor General argued last week that tariffs are not taxes but, rather, are a regulation of commerce. That may be the wrong position (I’m quite confident it is) but it is a defensible legal position, which the administration’s advocate would naturally be expected to advance in making the administration’s best argument.
By contrast, it must irk the justices to find the Attorney General publicly implying that the Supreme Court has just slapped down lower courts over what Bondi hyperbolizes as their “upheaval” and “disruption.” To the contrary, the justices prudently sidestepped a dispute that is being resolved without need for the Court to slap down either side — and under circumstances in which the lower court rulings, while not incontestable, may well have been correct.