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: