A bunch of people have asked me what’s up with the Justices supposedly ordering President-Elect Obama to produce documents related to his eligibility for the Presidency. (As I noted below, I have no reason to doubt his eligibility, but here I’m just trying to rebut one claim about the Justices’ supposed action on the subject.) Here’s a sample of what I’d gotten, from the “Amazing Facts” blog:
SCOTUS tells Obama to show proof of Natural Born Citizenship
Supreme court ruling on Obama’s eligibility for presidency
Court Of The United States (SCOTUS) Justice David Souter has agreed that a review of the federal lawsuit filed by attorney Phil Berg against Barack Hussein Obama II, et al., which was subsequently dismissed for lack of standing is warranted. SCOTUS Docket No. 08-570 contains the details….
Except this is not a fact, amazing or otherwise; the Court did not tell President-Elect Obama anything; the Supreme Court is not “ruling” on the subject except insofar that it has a certiorari petition before it (like thousands of certiorari petitions are filed before it each year); and Justice Souter has not agreed to anything. The docket sheet makes clear that all we have is a filed petition, a filed application for a preliminary injunction that was denied by Justice Souter, and a “[r]esponse due December 1, 2008” — a notation that simply marks the date by which any response should be filed, and imposes no obligation on anyone to file a response. Anyone can file a petition. All we have here is action by some litigants, not by Justice Souter.
(Note that parties routinely decline to file a response to a petition for certiorari, and those petitions are routinely denied in the absence of a response. If a Justice is inclined, he can call for a response, which is a signal to the respondent that at least one Justice thinks the petition has merit; and the Court almost never grants an unresponded-to petition without first calling for a response. But there has been no call for a response in this case, and I don’t expect there to be any such call.)
Likewise, this other case simply involves an application for a stay denied by Justice Souter, refiled and resubmitted to Justice Thomas, and referred to the Court by Justice Thomas — something that is not uncommon, to my knowledge, with second stay requests, and that generally leads to a prompt denial by the Court at the relevant conference (in this instance, the December 5 conference). Search for “referred to the court denied” & date(> 1/1/2000) in Westlaw and you’ll find 782 such instances this decade; “referred to the court granted” & date(> 1/1/2000) yields only 60, which should tell you how little you can read into the fact of the referral.
I wouldn’t even be posting about this if it weren’t for the several messages I’ve gotten on the subject; but given those messages, I thought I’d try to clear the matter up as best I can.