Planned Parenthood of Greater Tex. Surgical Health Services v. Abbott

Cite as: 571 U. S. ____ (2013) 1
SCALIA, J., concurring
SUPREME COURT OF THE UNITED STATES
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No. 13A452
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PLANNED PARENTHOOD OF GREATER TEXAS SUR-
GICAL HEALTH SERVICES ET AL. v. GREGORY
ABBOTT, ATTORNEY GENERAL
OF TEXAS ET AL.
ON APPLICATION TO VACATE STAY
[November 19, 2013]
The application to vacate the stay entered by the United
States Court of Appeals for the Fifth Circuit on October 31,
2013, presented to JUSTICE SCALIA and by him referred
to the Court, is denied.
JUSTICE SCALIA, with whom JUSTICE THOMAS and JUS-
TICE ALITO join, concurring in denial of application to va-
cate stay.
We may not vacate a stay entered by a court of appeals
unless that court clearly and “ ‘demonstrably’ ” erred in
its application of “ ‘accepted standards.’ ” Western Airlines,
Inc. v. Teamsters, 480 U. S. 1301, 1305 (1987) (O’Connor,
J., in chambers) (quoting Coleman v. Paccar Inc., 424 U. S.
1301, 1304 (1976) (Rehnquist, J., in chambers)). The
dissent promises to show that the Fifth Circuit committed
such error when it granted a stay in this case, see post, at
3 (opinion of BREYER, J.), but that promise goes unful-
filled. Instead, the dissent mentions six “considerations,”
most of which bear no discernible relationship to the
“accepted standards” we have hitherto told courts to apply.
The dissent’s analysis is inconsistent with the “great def-
erence” we owe to the Court of Appeals’ decision, Garcia-
Mir v. Smith, 469 U. S. 1311, 1313 (1985) (Rehnquist,
J., in chambers)—deference that “is especially warranted
2 PLANNED PARENTHOOD OF GREATER TEX. SURGICAL
HEALTH SERVICES v. ABBOTT
SCALIA, J., concurring
when,” as here, “that court is proceeding to adjudication
on the merits with due expedition,” Doe v. Gonzales, 546
U. S. 1301, 1308 (2005) (GINSBURG, J., in chambers).
When deciding whether to issue a stay, the Fifth Circuit
had to consider four factors: (1) whether the State made a
strong showing that it was likely to succeed on the merits,
(2) whether the State would have been irreparably injured
absent a stay, (3) whether issuance of a stay would sub-
stantially injure other parties, and (4) where the public
interest lay. See Nken v. Holder, 556 U. S. 418, 434
(2009). The first two factors are “the most critical.” Ibid.The Court of Appeals analyzed the first factor at length
and concluded that the State was likely to prevail on the
merits of the constitutional question. The dissent does not
join issue with that conclusion; it says only that the ques-
tion is “difficult.” Post, at 4. Standing alone, that ob-
servation cuts against vacatur, since the difficulty of a
question is inversely proportional to the likelihood that a
given answer will be clearly erroneous. With respect to the
second factor, the Court of Appeals reasoned that the
State faced irreparable harm because “ ‘[a]ny time a State
is enjoined by a court from effectuating statutes enacted
by representatives of its people, it suffers a form of irrepa-
rable injury.’ ” Maryland v. King, 567 U. S. __, __ (2012)
(ROBERTS, C. J., in chambers) (slip op., at 2–3) (quoting
New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434
U. S. 1345, 1351 (1977) (Rehnquist, J., in chambers)). The
dissent does not quarrel with that conclusion either. It
thus fails to allege any error, let alone obvious error, in the
Court of Appeals’ determination that the two “most criti-
cal” factors weighed in favor of the stay.
One might think that would be the end of the matter.
Yet the dissent asserts that “the balance of harms tilts in
favor of [the] applicants,” post, at 4—presumably referring
to the third relevant factor, whether the stay would sub-
stantially injure third parties. The Court of Appeals, of
Cite as: 571 U. S. ____ (2013) 3
SCALIA, J., concurring
course, acknowledged that applicants had “made a strong
showing that their interests would be harmed” by a stay,
but it concluded that “given the State’s likely success on
the merits, this is not enough, standing alone, to outweigh
the other factors.” ___ F. 3d ___, ___ 2013 WL 5857853,
*9 (CA5, Oct. 31, 2013). The dissent never explains why
that conclusion was clearly wrong: In particular, it cites no
“ ‘accepted standar[d],’ ” Western Airlines, supra, at 1305,
requiring a court to delay enforcement of a state law that
the court has determined is likely to withstand constitu-
tional challenge solely because the law might injure third
parties.
The Court of Appeals concluded that the fourth factor
also favored the stay, reasoning that the State’s interest in
enforcing a valid law merges with the public interest. See
Nken, supra, at 435. The dissent declines to criticize that
reasoning, though we are presumably meant to infer from
its disapproving comments about the stay’s “seriou[s]
disrupt[ion of the] status quo,” post, at 3, that the dissent
believes preservation of the status quo—in which the law
at issue is not enforced—is in the public interest. Many
citizens of Texas, whose elected representatives voted for
the law, surely feel otherwise. But their views go un-
acknowledged by the dissent, which again fails to cite
any “ ‘accepted standar[d]’ ” requiring a court to delay
enforcement of a state law that the court has determined
is likely constitutional on the ground that the law threat-
ens disruption of the status quo.
In sum, the dissent would vacate the Court of Appeals’
stay without expressly rejecting that court’s analysis of
any of the governing factors. And it would flout core prin-
ciples of federalism by mandating postponement of a state
law without asserting that the law is even probably un-
constitutional. Reasonable minds can perhaps disagree
about whether the Court of Appeals should have granted a
stay in this case. But there is no doubt that the applicants
4 PLANNED PARENTHOOD OF GREATER TEX. SURGICAL
HEALTH SERVICES v. ABBOTT
SCALIA, J., concurring
have not carried their heavy burden of showing that doing
so was a clear violation of accepted legal standards—
which do not include a special “status quo” standard for
laws affecting abortion. The Court is correct to deny the
application.