U.S. Supreme Court Asserts New Shadow Docket Powers Over State Courts

On Monday, the Supreme Court issued a stay in Malliotakis v. Williams, halting an order by a New York state trial judge requiring a redraw of New York’s congressional map. The New York judge had found that the state’s 11th congressional district violated a 2014 state constitutional amendment barring racial vote dilution.

The following analysis of the Supreme Court’s order first appeared in One First, a newsletter about the Supreme Court.

I wanted to follow up on the Court’s grants of emergency relief Monday night in the Malliotakis redistricting cases (and on my Monday night post about the decision) by taking a deeper dive into the jurisdictional issue the applications presented. I’ve written before about how the Supreme Court’s formal jurisdictional relationship with state courts differs in some pretty significant respects from its relationship with the lower federal courts. Here, those differences should have meant — as Justice Sonia Sotomayor’s dissent argued — that the Court lacked the power to intervene. By nevertheless granting the stays, the Malliotakis majority has necessarily set a precedent for litigants in state courts to seek emergency relief from the justices in circumstances in which it shouldn’t be (and has never previously been) available.

The majority, of course, did nothing to explain why it had jurisdiction; it didn’t say anything at all. But perhaps the most galling aspect of Monday night’s ruling is Justice Samuel Alito’s concurrence — which rests the Court’s jurisdiction on a remarkably deceptive (if not deliberately misleading) sleight-of-hand about the timing and sequencing of the state courts’ rulings. With the record properly clarified, the Court’s exercise of jurisdiction in Malliotakis notwithstanding the availability of further review from New York’s highest court is in direct conflict with a 2022 ruling; and, more fundamentally, risks throwing open the emergency docket floodgates to encompass a potentially limitless number of state court rulings, as well.

The Supreme Court’s Jurisdiction Over State Courts

Let me start with the basics. Unlike its power to review lower federal courts (which kicks in as soon as a case is “in” a court of appeals, i.e., as soon as the appeal is docketed), the Supreme Court’s power to review state courts is — and always has been — far more narrowly circumscribed.

Without going back over what I wrote two years ago, there are two key points here: The Supreme Court has jurisdiction to review state courts only when there has been a (1) “final” decision on a question of federal law from (2) the highest state court from which a decision could be had. To be sure, the justices have long taken a functional, not formal, approach to “finality” (so that what matters is whether the federal issue being appealed has been fully resolved below, not whether the underlying litigation has fully concluded). But the requirement that litigants “exhaust” their state court appeals (by going all the way to the highest possible court within the state court system) is one that has jurisdictional implications under 28 U.S.C. Section 1257 — meaning, it can’t be waived or bypassed no matter how strong the arguments for doing so might be. That constraint, which dates all the way back to the Judiciary Act of 1789, was meant to protect state courts from undue federal interference.

To illustrate how these principles limit the Supreme Court’s power to grant emergency relief, consider an application the Court denied in September 2022, Yeshiva University v. YU Pride Alliance. In that case, a state trial court had held that Yeshiva University’s refusal to recognize an LGBTQ+ student group violated New York’s Human Rights Act and entered a permanent injunction ordering the University to treat such groups the same way it treated other groups with respect to its student-group recognition process. The university appealed (asserting a federal First Amendment objection) and sought emergency relief (a stay of the injunction) from New York’s intermediate state court.

The intermediate appellate court denied the request for a stay on August 23, 2022. Under New York’s (complicated) procedural law, the next thing Yeshiva University should’ve done was seek permission from the intermediate court to appeal its denial of a stay to New York’s highest court — the Court of Appeals. But its attempt to do so — filing the same request simultaneously in the Court of Appeals and the appellate court — was rejected on procedural grounds because it didn’t come in the proper form. (Had it been rejected on substantive grounds, that arguably would have been a final decision by the highest state court from which relief could have been had.) Rather than correct the clerical error and re-file, Yeshiva went straight to the U.S. Supreme Court.

The Supreme Court, by a 5–4 vote, denied the application — because of the jurisdictional defect. As the Court’s brief order explained:

The application is denied because it appears that applicants have at least two further avenues for expedited or interim state court relief. First, applicants may ask the New York courts to expedite consideration of the merits of their appeal. Applicants do not assert, nor does the Appellate Division docket reveal, that they have ever requested such relief. Second, applicants may file with the Appellate Division a corrected motion for permission to appeal that court’s denial of a stay to the New York Court of Appeals, as the Appellate Division clerk’s office directed applicants to do on August 25. Applicants may also ask the Appellate Division to expedite consideration of that motion.

Indeed, the majority added, “If applicants seek and receive neither expedited review nor interim relief from the New York courts, they may return to this Court.” In other words, the Court denied emergency relief because it was still possible for Yeshiva University to seek further emergency relief (and expedited review) from the state courts, and the Court of Appeals hadn’t yet held otherwise.

In his dissent (which was joined by Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett), Alito argued that the Court could issue a stay even without waiting for the New York Court of Appeals, citing the Supreme Court’s 1977 ruling in National Socialist Party of America v. Skokie. (I’ll come back to why Skokie presents materially different facts from both YU Pride Alliance and Malliotakis below.) But he never disputed that Yeshiva University could have sought further emergency relief from the New York state courts; all he argued was that such a move would likely be fruitless.

The State Court Proceedings in Malliotakis

Against that backdrop, let’s turn to the (remarkably similar) sequencing and timing of the litigation in Malliotakis — to illustrate the jurisdictional problem with the applications, and with the Court’s granting of them.

The trial court decision at the heart of the dispute — a preliminary injunction holding that the current map for New York’s 11th Congressional District violates the New York state constitution by diluting the votes of Black and Latino voters — was issued on January 21, 2026. The defendants, including Rep. Nicole Malliotakis (R) (who intervened in the trial court), appealed that ruling to the intermediate court. While that appeal was pending, Malliotakis herself and other defendants separately sought stays from both the appellate court and the Court of Appeals, even though the latter move was procedurally improper under New York law.

On February 11, the Court of Appeals transferred the stay application to the intermediate appellate court — explaining that it was inappropriate to seek emergency relief from the highest court before doing so from the appellate court. Eight days later (on February 19), the appellate court denied the stay applications. At that point, Malliotakis and the other defendants were free to seek further review within the New York state courts — by seeking permission from the appellate court to appeal its denial of emergency relief in the Court of Appeals. They never asked for that.

Instead, on February 12 (the day after the Court of Appeals transferred the applications for emergency relief to the appellate court), Malliotakis and the other defendants went directly to the U.S. Supreme Court — asking for stays of the trial court injunction. In other words, at the time the defendants applied for relief from the Supreme Court, no state appellate court had even ruled on their applications for stays. And when the appellate court subsequently denied those applications on February 18, the defendants didn’t pursue any further relief in the state courts — even though they absolutely could (and, thus, should) have.

Sotomayor’s dissent is exactly right about what this should’ve meant: Just like in YU Pride Alliance, there was no “final” decision by the highest state court from which a decision could be had for the Supreme Court to review. As she explained, “in every other case in which this Court has granted emergency relief from a state-court decision, the State’s highest court either denied it first or failed to act promptly on a request for it.” Here, the New York Court of Appeals hadn’t denied the applications on the merits; it ruled only that the applicants had to go to the appellate court first. If the Court of Appeals had dragged its feet, that would be one thing. But recall, again, that after the appellate court denied the applications, Malliotakis and the other defendants didn’t even ask. It’s hard to drag your feet by not ruling on a stay application that hasn’t been filed.

Alito’s (Deeply Troubling) Response

As noted above, the majority’s 107-word order had nothing to say about this — or about why YU Pride Alliance was remotely distinguishable. (Never mind that this is the same Supreme Court that held, last summer, that, “although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases.” Apparently, they inform how lower courts should act in “like cases,” but not the Supreme Court.)

The only defense of the Court’s behavior came, not surprisingly, from Alito. I’m going to quote his relevant discussion in full, and bold the sentence where he certainly at least appears to affirmatively misrepresent what happened below:

After [the trial court’s] highly questionable injunction was issued, the applicants filed appeals in both the Appellate Division (the State’s intermediate appellate court) and the Court of Appeals (its highest court) challenging the trial court’s order on federal constitutional grounds. At the same time, applicants asked both courts to stay the trial court’s order. The Appellate Division refused to issue a stay, and by order issued on February 11, the Court of Appeals sent the appeal filed in that court to the Appellate Division and dismissed applicants’ motions for a stay. With nowhere else to turn, the applicants asked us to issue a stay, and we have jurisdiction to entertain their application.

Ordinary grammar would dictate that, in the bolded sentence, the reader expects that the Court of Appeals’ February 11 order came after the appellate court refused to issue a stay (with “and” being used to convey chronology) — leaving the impression that the Court of Appeals had already acted on the substance of the stay, thereby clearing the way for the Supreme Court to step in. But as noted above, it didn’t. The Court of Appeals’ February 11 order was about the procedural flaw in the applications — and the appellate court denied them on the merits eight days later. In other words, whereas Alito leads readers to believe that the applicants really did have “nowhere else to turn” because the Court of Appeals turned them down, the reality is that they did have a means of getting the Court of Appeals to actually rule on the stay, and chose not to pursue it — a fact that Alito’s portrayal of the timeline necessarily obfuscates.

Indeed, Alito relies upon this sleight of hand to analogize Malliotakis to Skokie. In that case, the district court had issued an injunction barring the American Nazi Party from marching in Skokie, Illinois. An Illinois appellate court and the Illinois Supreme Court denied emergency applications to stay the injunction; and the Illinois Supreme Court denied leave for an expedited appeal on the merits. Because the event would’ve come and gone before the state courts conducted any further proceedings, the U.S. Supreme Court treated the Illinois Supreme Court’s twin denials as an effectively final ruling on the plaintiffs’ First Amendment claim, granted certiorari, and reversed.

Critically, though, the Illinois Supreme Court in that case had received and denied a stay application on the merits — not because of some procedural defect that left open the availability of further emergency relief. In other words, Skokie is easily distinguishable from both YU Pride Alliance and Malliotakis because, in Skokie, the state’s highest court had received — and had denied on the merits — an application for emergency relief. And it showed no sign of moving quickly on the appeal, either.

Of course, it may not be a big surprise that the YU Pride Alliance dissenters continue to read Skokie as applying to facts that can be easily distinguished. But (1) that doesn’t excuse Alito’s distortion of the factual record to make the Malliotakis case look like Skokie; and (2) it doesn’t remotely explain the inconsistent votes of one or both of Chief Justice John Roberts and/or Justice Brett Kavanaugh. Both were clearly in the majority in YU Pride Alliance (where we know the ruling was 5–4); and at least one of them had to be in the majority in Malliotakis (and my own guess is that both were). There is no obvious legal principle or fact that differentiates those two cases, and no explanation for how they’re different, either.

Okay, But Why Does This Matter?

It is, alas, hardly news that Alito is inconsistent. Or that the Court sometimes plays fast and loose with the facts to make two cases that are easily distinguishable look more like each other. It may also seem, at first blush, like dancing on the head of a pin to condition the Supreme Court’s ability to grant emergency relief to a state court on whether the state’s highest court had a chance to rule substantively on a stay request.

But it’s worth underscoring why these problematic moves produce an especially problematic result here — not just with respect to this one dispute over a single congressional district in New York (where, surprise surprise, the ruling directly benefits a Republican member of Congress), but with respect to the Supreme Court’s ability to grant emergency relief from state court rulings going forward.

After all, imagine a case in which a state trial court issues an injunction against a defendant, and the defendant immediately files a procedurally improper request for emergency relief from the state supreme court — jumping the ordinary rules for such relief in just about every state court system in the country. Malliotakis now seems to stand for the proposition that the state supreme court’s rejection of a procedurally improper request for emergency relief (versus a denial of emergency relief on the merits, as in Skokie) is enough to trigger the Supreme Court’s jurisdiction — which would allow any litigant in that scenario to leapfrog the entire state appellate process by filing a bogus (and premature) request for emergency relief from the state supreme court. Once the state’s highest court denies the request on procedural grounds, the applicant can use that denial as a basis for going right to the U.S. Supreme Court. It’s almost the textbook definition of bootstrapping — all to get hot-button legal questions, at least where federal law is implicated, in front of the U.S. Supreme Court as soon as possible.

Suffice it to say, such analysis opens the door, at least jurisdictionally, to tons of new emergency applications to the Supreme Court — applications that would previously have been barred by, and over which the Supreme Court really doesn’t have jurisdiction under, 28 U.S.C. Section 1257. Maybe the justices genuinely believe that the New York courts were slow-walking things (which is hard to swallow given that the New York Court of Appeals was never given a meaningful opportunity to grant or deny emergency relief). Maybe the justices genuinely think that they can police the line between cases like Malliotakis and my hypothetical. Maybe they just don’t care about receiving even more emergency applications on questions on which they’re likely to divide.

But there are two points that really ought not to be controversial here. The first is that limits on the Supreme Court’s jurisdiction are supposed to mean something. It’s striking that none of the right-wing commentators defending the Malliotakis ruling have actually explained why the Court clearly did have jurisdiction; to them, apparently, we shouldn’t let pesky things like a lack of power to issue a ruling get in the way of a ruling we like.

Second, and more generally, if the Court is going to undertake a quiet but undeniable expansion in its power to grant emergency relief in cases coming from state courts, it should’ve said so — and it should have committed to providing a more convincing rationale for such a shift than one based upon Alito’s . . . casual . . . relationship with the facts. It may be hard for non-lawyers (or even lawyers) to get worked up about the Court exercising jurisdiction in a class of cases in which it doesn’t have jurisdiction. But it’s a pretty radical expansion of the Court’s ability to grant emergency relief at a time in which applications are already dominating the justices’ docket; and it’s a pretty shameless aggrandizement of the judicial power of state courts — and the limits on the Supreme Court’s jurisdiction over those tribunals that Congress has consistently imposed since 1789.

Maybe it’s no wonder that the majority didn’t write.

Stephen Vladeck is a law professor at Georgetown University and editor and author of the Supreme Court newsletter One First.

Suggsted Citation: Stephen Vladeck, U.S. Supreme Court Asserts New Shadow Docket Powers Over State Courts, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Mar. 6, 2026), https://statecourtreport.org/our-work/analysis-opinion/us-supreme-court-asserts-new-shadow-docket-powers-over-state-courts