The Supreme Court has three pending stay applications on the shadow docket relating to President Trump’s order purporting to rescind birthright citizenship for children of some aliens.
The “courtesy fifth” suggestion sounded off to me, because I had assumed that practice was limited to situations in a failure to grant a stay would moot the cert petition that four Justices wanted to grant — generally in capital cases, but I guess the same dynamic could arise in other cases too. But I see that Justice Breyer voted to grant a stay as a courtesy in Gloucester Co. School Bd. v. G.G., back in 2016. Although I can’t find a copy of the stay papers , it doesn’t appear that there was any threat of mootness there, and Breyer’s opinion doesn’t suggest as much.
(It’s a classic Breyer multi-part explanation: (1) four Justices had voted to grant the application; (2) the Court was in recess [unclear why that matters??]; and (3) a stay would preserve the status quo as it existed before CA4’s decision. Mike Dorf wrote a post at the time explaining how his vote didn’t really make sense, except perhaps as an olive branch to secure more “courtesy fifth” votes from CJR or AMK in the future.)
Good point. It would make sense for the “courtesy fifth” to be limited to cases where it’s necessary to preserve the Court’s jurisdiction. But then, I think it would make sense for all stays under the All Writs Act to be limited in that way since the Act refers to writs “in aid of” the Court’s jurisdiction, but for some reason we’ve gotten away from that . . .
The “courtesy fifth” suggestion sounded off to me, because I had assumed that practice was limited to situations in a failure to grant a stay would moot the cert petition that four Justices wanted to grant — generally in capital cases, but I guess the same dynamic could arise in other cases too. But I see that Justice Breyer voted to grant a stay as a courtesy in Gloucester Co. School Bd. v. G.G., back in 2016. Although I can’t find a copy of the stay papers , it doesn’t appear that there was any threat of mootness there, and Breyer’s opinion doesn’t suggest as much.
(It’s a classic Breyer multi-part explanation: (1) four Justices had voted to grant the application; (2) the Court was in recess [unclear why that matters??]; and (3) a stay would preserve the status quo as it existed before CA4’s decision. Mike Dorf wrote a post at the time explaining how his vote didn’t really make sense, except perhaps as an olive branch to secure more “courtesy fifth” votes from CJR or AMK in the future.)
Good point. It would make sense for the “courtesy fifth” to be limited to cases where it’s necessary to preserve the Court’s jurisdiction. But then, I think it would make sense for all stays under the All Writs Act to be limited in that way since the Act refers to writs “in aid of” the Court’s jurisdiction, but for some reason we’ve gotten away from that . . .