SCOTUS Stays Third-Party Removal Injunction 40 Minutes After Reply Filed

On September 24, the Solicitor General sought an emergency stay, as well as an administrative stay, of the Boston District Court’s order blocking third-country removals. Justice Jackson promptly issued a schedule with the briefs due on September 28, but did not grant an administrative stay. The Solicitor General, perhaps anticipating this denial, preemptively asked that the denied application should be referred to the full Court. At the time, I speculated that by virtue of Jackson’s denial of the administrative stay, the case was effectively referred to the full court.

Another theory a colleague suggested is that the Justices had already discussed the case, and the four-day briefing schedule was something of a compromise. That is, Jackson could have given a week or longer, but that delay would have triggered an administrative stay. To avoid that outcome, Jackson agreed to a shorter briefing schedule. I suppose that’s possible, but if Jackson was unwilling to vote for a stay, and knew there were five votes for a stay, what exactly would that compromise buy?

In any event, the Court did not wait for Justice Jackson to formally refer the case to the Court. On September 29 around 2:40 ET, the government filed its reply brief. About 40 minutes later, the Court issued a very detailed order granting a stay, treating the application as a cert petition, granting that petition, and setting the case for argument in December. The Court also requested briefing on at least three specific questions presented:

The application for stay presented to Justice Jackson and by her referred to the Court is granted. The February 25, 2026 order and judgment of the United States District Court for the District of Massachusetts, case No. 1:25-cv-10676, are stayed. The application is also treated as a petition for a writ of certiorari, and the petition is granted. The parties are directed to brief and argue the following questions: (1) Whether the district court had jurisdiction over Respondents’ claims. (2) Whether the district court had authority to enter classwide declaratory relief and APA vacatur under 8 U. S. C. §1252(f)(1). (3) Whether the Government’s Guidance on third-country removals is unlawful under 8 U. S. C. §1231(b), the Due Process Clause, or FARRA/CAT and its implementing regulations. (4) Such other questions that the Government determines are appropriate for the proper disposition of the case. The Clerk is directed to establish a briefing schedule that will allow the case to be argued in the December 2026 argument session. The stay shall terminate upon the sending down of the judgment of this Court. Justice Sotomayor, Justice Kagan, and Justice Jackson would deny the application for stay.

The Justices did not need all of the briefing to grant this stay. The die was cast as soon as the application was filed.

Moreover, it is fairly rare for the Court poses specific questions presented after treating an application for a stay as a cert petition. The Court took this path in Trump v. Slaughter (25A264), Department of Education v. Brown (22A489), and United States v. Texas (22A17). The fourth proposed question is something I could not find in any other case: “Such other questions that the Government determines are appropriate for the proper disposition of the case.” The Court may be looking for other ways to dump this case.

The interim docket continues to evolve.