The news loves to run with this stuff, because they know we will click on the news story, and it will generate ad revenue.
It is an administrative stay.
In case anybody is not clear, the three judge panel is not even assigned when an administrative stay is issued. The court issues the administrative stay, and then assigns the case to a merits panel to decide the motion to stay.
Amy Coney Barrett's concurrence:
"Administrative stays do not typically reflect the court’s consideration of the merits of the stay application. Rather, they “freeze legal proceedings until the court can rule on a party’s request for expedited relief.” R. Bayefsky, Administrative Stays: Power and Procedure, 97 Notre Dame L. Rev. 1941, 1942 (2022) (Bayefsky). Deciding whether to grant a stay pending appeal requires consideration of the four Nken factors, which include an assessment of the applicant’s likelihood of success on the merits. That is not always easy to evaluate in haste, and an administrative stay buys the court time to deliberate . . .
. . .
But the Fifth Circuit has not entered a stay pending appeal. Instead, in an exercise of its docket- management authority, it issued a temporary administrative stay and deferred the stay motion to a merits panel, which is considering it in conjunction with Texas’s challenge to the District Court’s injunction of S. B. 4. Thus, the Fifth Circuit has not yet rendered a decision on whether a stay pending appeal is warranted. That puts this case in a very unusual procedural posture."
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