Thread by @gabrielmalor

Just to swing back to this now that I'm back from dinner, SCOTUS, 5-4, denies application to lift the federal eviction moratorium that's in place for the rest of July. supremecourt.gov/opinions/20pdf…

I see there are questions from the class, so let's break this down.

Groups challenging CDC's pandemic-related moratorium on evictions say CDC lacks the authority to issue that moratorium.

They're right. And a district court said so. (actually a couple courts have)

But the CDC has appealed that decision to the DC Circuit, which issued a stay of the district court's decision pending appeal.

In other words, the moratorium remains in effect pending appeal.

So the industry groups filed what is called an "application to vacate stay" with SCOTUS. That application goes to the circuit justice first.

Here, because this is in the DC Circuit, that goes to Chief Justice Roberts. So that's why it says "presented to the Chief Justice."

CJ Roberts then referred it to the rest of the Court, which voted to deny it.

This is one of the times when we know the actual vote break-out of an application like this because five justices told us their votes. Thomas, Alito, Gorsuch, and Barrett would grant.

But on an application in what is now (relatively recently, too) referred to as the "shadow docket" you need five votes.

Justice Kavanaugh concurs in denying the application. So that tells us that the Chief Justice, Kavanaugh, and Breyer, Sotomayor, and Kagan all said no.

Alright. Other issue. J. Kavanaugh, concurring in the denial, writes for himself that he agrees CDC lacks statutory authority to issue the eviction moratorium.

And yet he votes to allow it to remain in place through the end of July. How can this be, you might reasonably ask.

The answer that Justice Kavanaugh points to is that to prevail on a stay application like this, generally you don't just have to demonstrate you will likely win if the case is heard, but that the balance of hardships is also in your favor.

For a conservative majority that has been pretty aggressive about pandemic-related restrictions on churches or private religious gatherings, it's a little disappointing to see the Chief and Justice Kavanaugh won't give owners of real property any love.

Particularly when there isn't anything even nodding to a whisper of a meritorious argument that CDC has the statutory authority to just declare evictions illegal.

Wellllll, "get away with" is doing work here. Yet to be seen if CDC gets away with it. What we know is that they will continue to get away with it *for now*.

https://twitter.com/frihetviking/status/1410033204350816256

It'll be interesting to see if CDC's last eviction moratorium extension is truly the last one. Particularly if the delta variant, or whatever we're calling it this week, takes off over the next four weeks.