Some supporters of the lawsuits challenging President-Elect Obama's eligibility for office have made much of the fact that some Justices referred stay applications to the entire Court (see this docket entry and this one). One person e-mailed me to fault the referring justices, Justices Scalia and Thomas, for even referring the stay applications. Why not just deny them without referring them to the Court, the way Justices Souter and Ginsburg had originally denied them?
I had earlier pointed out that the overwhelming majority of all stay applications referred to the full court are denied. But I had also remembered something else about resubmissions of the stay petitions to a second Justice, which happened in both these cases. I didn't want to mention it until I had a chance to confirm it, but I just managed to do it:
[I]t is also the present practice for the Justice to whom a resubmission has been transmitted to refer the application to the entire Court for action. This practice is no longer limited to reapplications made when the Court is in session, but occurs whenever such referral is practicable and time is not of the essence. Almost uniformly the reapplications have been denied.
Robert L. Stern, Eugene Gressman, Stephen M. Shapiro & Kenneth S. Geller Supreme Court Practice 683 (7th ed. 1993) (this has long been the definitive treatise on Supreme Court procedure, often known as Stern & Gressman).
So, as I mentioned before, there's nothing at all noteworthy about Justice Scalia's and Justice Thomas's referring the stay petitions to the entire Court. It is entirely standard operating procedure, and does not reflect any judgment at all about the merits of the underlying lawsuits.
Related Posts (on one page):
- Referrals to the Entire Court of Lawsuits Challenging President-Elect Obama's Eligibility:
- Myths About Supposed Court Action About President-Elect Obama's Supposed Ineligibility:
I'm also confused about this practice of letting every petition that is resubmitted get to conference. So the denial by the initial individual justice is like a roadblock to keep out the riffraff?]
Sarcastro, I think the point is that the majority of litigants will take the hint once the first Justice turns them down. Once they demonstrate their willingness to persist in the matter, referral to conference becomes the most efficient way to get rid of them once and for all.
Well, it isn't quite accurate to say it means nothing. It really means that the petition is following normal procedure designed to prevent resubmission over and over again.
This may mean that you have an over-zealous plaintiff, for example.....
The current system tries to balance workload with an opportunity for review. You could have a system where every application has to go to the conference for a vote, but that would be a waste because most application are either on minor questions (like brief extensions) or are silly (like this one). You could also have a system where no applications go to the conference for a vote, but there's also the possibility you could have a Justice who is off the reservation, like Justice Douglas, who needs to have his decisions reviewed. So you end up with a mixed system in which applicants generally understand that if the application wasn't referred it is a non-starter and the really stubborn ones just ask a second time and get the denial from the whole court.
But look on the bright side - it must be refreshing to hear this stuff from right wing anti-Obama loons, rather than left wing anti-Bush loons.
Not so much black letter rules. More like generally accepted current practice.
Before the current practice evolved, there was at least one case (a death penalty case from the 1950's) in which an application for a stay was serially presented to, and denied by, each of the nine Justices. There have also been famous incidents in which a stay denied by one Justice was granted by another or vice versa, including the Rosenberg case as well as the Cambodian bombings case.
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