It has been just a little over two weeks since the Justices last heard oral arguments, but don’t mistake their absence for inactivity. Among the many things that occupy their attention when they are not hearing oral arguments are emergency applications – particularly applications to stay the ruling of a lower court or to stay an imminent execution.

Just in the past eleven days, the Court has acted on eight stay applications:  five in capital cases, two in election disputes, and one in a case involving a struggle over subpoenas from the British government to Boston College researchers. Sometimes stay applications simply present technical procedural requests, but at other times – for example, when an execution is imminent or election battles are looming – they can create real drama and suspense.

This critical role of the Court occasionally grabs headlines, but more often than not it plays out away from the public eye, shrouded in some degree of mystery. Yet the handling of stay applications can be of major importance to law students who will become litigators in both civil and criminal cases, to those who study the workings of the Court, and to those who regularly track death penalty cases in the states.

First, let us define the terms. In the context of the Supreme Court, a stay is a type of interim order, one that halts the effect of a lower court ruling. The stay might be temporary until the Court can consider a full appeal or until some further action takes place in the lower courts. In the case of a pending execution, a stay stops the execution until further legal developments. And sometimes the Court may vacate a stay issued by a lower court and allow an action, or even an execution, to proceed.  A stay is related to, but distinct from, an injunction – for example, one that prevents a law from taking effect or that blocks a proposed government action.

As you might imagine, these requests often present difficult and important issues that require quick action and bring immediate impact.

Consider some recent examples. On October 16, the Justices denied a request by the Ohio Secretary of State to stay a Sixth Circuit order that requires Ohio election officials to permit early voting for either all voters or none on the days leading up to the November 6 election. The state had wanted to allow military personnel and their families to continue early voting on the final days, but to close the process for others.

Earlier this week, the Court also left intact Montana’s limits on campaign contributions in state election contests. In a challenge brought by Montana Republican campaigns and donors, a federal district court agreed that the limits were invalid, but the Ninth Circuit stayed that decision. The Supreme Court declined to vacate the Ninth Circuit’s stay, leaving the state law in place at least through the election.

As significant as these actions were for their immediate impact on state election laws, applications for a stay rarely get more dramatic than in death penalty cases. On October 18, the Justices stopped the execution of Anthony Haynes in Texas just two-and-a-half hours before he was to be killed for the murder of an off-duty policeman in Houston. Lower courts had declined to halt the execution despite claims by Haynes that he lacked effective legal representation at his trial and sentencing. The Supreme Court’s stay, granted over the dissents of Justices Scalia and Alito, is temporary until the Court can decide whether to review Haynes’s case on the merits.

Earlier this week, the Justices rejected several requests for a stay of execution for a Florida death row inmate who was scheduled to be put to death on October 23. But after the Court turned down three requests for stays by lawyers for inmate John Ferguson, the Eleventh Circuit granted a stay. Then, the Supreme Court denied an emergency request by Florida officials to vacate the Eleventh Circuit order and allow the execution to proceed. Ferguson is on death row for killing eight people, but his lawyers argue that mental illness prevents him from understanding why he is facing execution.

The handling of stay requests can be one of the most mysterious facets of the Court’s procedures – the papers requesting the stay go into the office of the Clerk of the Court, and an order granting or denying the stay comes back out the same door, sometimes in a matter of hours. But what happens in between the filing and the Court’s order is largely unseen.

When the Justices handle an appeal in the form of a petition for a writ of certiorari, the Court’s docket, which is publicly available here, displays what is happening in the case – when a response is due to the petition and when a case is scheduled to be considered by the Justices at one of their private Conferences. With stay applications, the Court frequently issues orders at times when there are no scheduled conferences, and – in the case of late-night requests for stays of execution – when it is quite unlikely that the Justices themselves are physically at the Court.

On rare occasions, the Justices may even decide on their own initiative to treat an emergency stay request as a petition for certiorari and grant review on the merits.  This is what the Court did on December 9, 2000:  although Republican nominee George W. Bush asked the Court to stay the recount of ballots in Florida, the Court treated the application as a petition for certiorari which it granted and decided.

So how does the process work for handling stay applications? The Court’s Office of Public Information has shed some light on the process through “A Reporter’s Guide to Applications.” Under the Court’s rules, a stay application is addressed to a single Justice. Each Justice is assigned to handle emergency applications from one of the regional federal appeals courts or from state courts within that circuit. Although the Justice who receives the application may act on the application unilaterally, she will often refer stays in cases involving very serious issues – such as executions –to the full Court. Thus, the multiple stay requests filed by John Ferguson and, later, the state of Florida went initially to Justice Thomas, who handles matters from the Eleventh Circuit (in which Florida is located), but he referred them to the full Court. The Montana campaign limits dispute went first to Justice Kennedy, the Circuit Justice for the Ninth Circuit, but he too referred the case to the whole Court.

In reviewing a stay application, the Court will generally consider four factors: whether it is likely that there will be four votes to agree to hear the case on the merits; whether it is likely that a majority of Justices will agree that the lower court ruling was incorrect; whether there will be irreparable harm without the stay order; and whether balancing all of the interests in a case argues for a stay.  Notably, although the Court’s rules require only four votes to agree to hear and decide a petition for certiorari, five votes are needed to grant a stay.

Getting five votes for a stay in a case that divides the Court can sometimes be tricky. There is a common practice, especially in death penalty cases, by which a Justice who thinks a case does not merit full review may nevertheless cast a fifth vote for a stay if there are four other votes in favor of granting the petition for certiorari. Without this courtesy, there might be enough votes to hear a prisoner’s appeal on the merits, but the execution could nonetheless be carried out because there was no stay in place. On the other hand, if some Justices vote for a stay but do not support granting the petition for certiorari, a stay might be denied even though there are four Justices dissenting. Some Justices believe that the habeas corpus process of review in death penalty cases should trigger a stay until the Court has reviewed the petition for certiorari.

If the Justices do not have to meet in Conference to consider stay applications, how are the requests decided? That remains something of a mystery. Presumably the Justice to whom the application was addressed takes the lead in presenting the facts of the case to the other Justices, most likely through written memos. The Justices may rely on their law clerks to distill the essence of the stay request and to make a recommendation on how to handle the application. In this way, as the Court’s guide for reporters notes, “[a] Justice need not be physically present in the Court building in order to act on an application.”  Moreover, when a stay request has been referred to the full Court, “the Justices do not meet officially or publicly, but confer, sometimes by phone, or through their law clerks.”  The Clerk’s office is inevitably involved in the logistics of collecting the votes.

The Court takes extra measures to try to avoid rushed, last-minute consideration of requests for stays of execution. According to an account by Adam Liptak of The New York Times, the Court’s emergency applications clerk (colloquially known as the “death clerk) keeps the Justices updated on executions working their way up the final appeals ladder. Liptak reported on an August 2012 speech by the current emergency applications clerk, Danny Bickell, in which Bickell explained that as an execution date approaches and final appeals and stay requests become a virtual certainty, he reaches out to the lawyers on both sides to make sure that the Court gets copies of all legal papers that are being filed in lower courts. If the Court is still considering a stay application as the time set for an execution approaches, Bickell will contact state officials to see whether they plan to await further word from the Supreme Court. If state officials do not plan to wait, the Justice who oversees matters from that federal circuit may issue a temporary stay, just to give the full Court a chance to finish reviewing the application.

How often does the Court handle stay applications? If you count all of the routine requests for extended deadlines and other applications, there are 1200-1300 applications per year to individual Justices.  Requests for stays in capital cases currently run about 60-65 per year.

This is an important part of the Court’s work that takes place most often away from the public spotlight. The Justices literally make life-and-death decisions and other high-impact interim rulings, usually without the same explanation of their actions or reasoning that accompanies decisions in argued cases. Court observers are thus often left to speculate about why the Court intervened in a case or declined to take emergency action.

Posted in Featured, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): Handling stay applications, SCOTUSblog (Oct. 26, 2012, 1:40 PM), http://www.scotusblog.com/2012/10/scotus-for-law-students-sponsored-by-bloomberg-law-handling-stay-applications/