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Myths About Supposed Court Action About President-Elect Obama's Supposed Ineligibility:

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

http://origin.www.supremecourtus.gov/docket/08-570.htm

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.

Related Posts (on one page):

  1. Referrals to the Entire Court of Lawsuits Challenging President-Elect Obama's Eligibility:
  2. Myths About Supposed Court Action About President-Elect Obama's Supposed Ineligibility:
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Referrals to the Entire Court of Lawsuits Challenging President-Elect Obama's Eligibility:

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):

  1. Referrals to the Entire Court of Lawsuits Challenging President-Elect Obama's Eligibility:
  2. Myths About Supposed Court Action About President-Elect Obama's Supposed Ineligibility:
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