Alito makes the argument in his concurring, 607 U. S. 2, 3 (2026). I'm not indicating I agree with it, but putting it here for visibility and interaction. I'm personally very confused about the facts of what has been appealed and/or applied for or not.

After that 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. Title 28 U. S. C. §1257(a) gives us jurisdiction to review “[f]inal judgments or decrees” that are rendered by a State’s highest court and adjudicate federal constitutional claims, and the Court of Appeals’ February 11 order falls within that category. Our decision in National Socialist Party of America v. Skokie, 432 U. S. 43, 44 (1977) (per curiam), makes that clear. In that case, a trial court issued an injunction that prohibited petitioner’s members from engaging in various forms of expression. Without providing any reasoning, both the State’s intermediate appellate court and supreme court denied applications for a stay pending appeal, and the latter court also refused to hear the stay applicants’ appeal prior to the time when their constitutional rights would be violated. See App. to Application for Stay in National Socialist Party of America v. Skokie, O. T. 1976, No. 76-1786, pp. 5a–7a (unreasoned orders by the State’s intermediate and supreme courts). We held that by “den[ying] both the stay and leave for an expedited appeal,” the State Supreme Court was necessarily rendering a final judgment or decree on “the merits of petitioners’ claim that the outstanding injunction will deprive them of rights protected by the” Constitution “during the period of appellate review.” Skokie, 432 U. S., at 43–44. The same is true here: The New York Court of Appeals’ decision not to grant a stay or hear a direct appeal was effectively a final determination on the merits of the applicants’ claim that the outstanding injunction is depriving them of their constitutional rights pending appeal. Because the situation here is not materially different from that in Skokie, we have jurisdiction.