Posted by Eugene Volokh:
Referrals to the Entire Court of Lawsuits Challenging President-Elect Obama's
Eligibility:
http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1229033650
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 [1]this docket
entry and [2]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 [3]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.
References
1. http://origin.www.supremecourtus.gov/docket/08a469.htm
2. http://origin.www.supremecourtus.gov/docket/08a407.htm
3. http://volokh.com/posts/1228153366.shtml
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
