Troy D. Cahill, counsel in Akin Gump’s Supreme Court and appellate practice, writes this explanation of the temporary stay order. Prior to joining Akin Gump, Troy served as staff attorney in the Supreme Court’s Office of the Clerk. While there, he assisted in the disposition of emergency applications for interim relief.

The temporary stay order entered by Justice Ginsburg is the conventional and relatively common way by which an Individual Justice maintains the status quo pending the ultimate determination of a stay application.  While most often used to maintain the status quo pending the receipt of a response, temporary stay orders are sometimes issued by an Individual Justice to allow the Justice (or the full Court if the matter is ultimately referred to the full court for disposition) additional time to consider and act on an application for stay to which a response has been filed.

In the Chrysler case, Justice Ginsburg was faced with a definitive deadline (4 p.m. today) by which she or the Court needed to act or else the Indiana benefit funds and other applicants would be irreparably harmed.  Given that the last response brief was not filed until Monday morning, given the significance of the underlying challenge to the government’s power to deal with the economic crisis, and given that Justice Ginsburg may have wanted to allow the applicants a reasonable opportunity to reply to the arguments made in response to their stay application, it is not surprising that Justice Ginsburg issued a temporary stay to permit herself additional time to consider the arguments and determine whether to refer the matter to the full court and whether to vote to grant or deny the stay request.

Temporary stays, like the one issued by Justice Ginsburg in the Chrysler case, may find their most frequent use in relation to capital cases in which a State refuses to delay a scheduled execution in order to permit the Court a reasonable time within which to act on a pending application for stay of execution.  Confronted with the choice of permitting an execution to proceed despite the existence of a pending potentially meritorious stay request or granting a temporary stay to allow the Court a reasonable opportunity to consider and act on the stay application, the Circuit Justice will issue a temporary stay of execution to be lifted or continued upon the Justice’s (or the Court’s) ultimate decision on the pending application.

While the Chrysler case obviously is not a capital case, the same factors that compel an Individual Justice to issue a temporary stay in those cases, apply with equal force to the circumstances presented by the Indiana benefit fund and other applicants.  The issuance of a temporary stay by Justice Ginsburg ought not be seen as a radical departure from Court procedure or read as in indication of how Justice Ginsburg intends to act on the application.  Instead, the temporary stay order should simply be read for what it is – an interim order meant to maintain the status quo until Justice Ginsburg (or the full Court if the matter is referred) has considered and ruled on the application.

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