GREGORY-PORTLAND INDEPENDENT SCHOOL DISTRICT
v.
UNITED STATES ET AL.
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Gregory-Portland Independent School District requested a stay of a district court busing order pending appeal to the Fifth Circuit, which was first denied by Justice Powell and then resubmitted to Justice Rehnquist. Justice Rehnquist denied the stay application, reasoning that while he might personally vote to reverse the busing order on the merits, a Circuit Justice's role is to apply the proper legal standards for stays rather than to substitute his own judgment for that of the Circuit Justice already familiar with the case.
[1] An individual or Circuit Justice, when considering an application for a stay pending appeal, must determine whether four Justices would vote to grant certiorari, balance…
[2] A Circuit Justice's denial of a stay application should not be second-guessed by another Justice, particularly when the Circuit Justice is more familiar with the case's c…
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Mr. Justice Rehnquist.
Applicants have requested me to grant a stay pending appeal to the Court of Appeals for the Fifth Circuit of a decision by the District Court ordering the busing of students within the applicant district. The application, as was proper, was first submitted to Mr. Justice Powell, the Circuit Justice for the Fifth Circuit, and denied by him. It has now been resubmitted to me. As indicated by the cases discussed in the application for stay, e. g., Columbus Board of Education v. Penick, 439 U. S. 1348 (1978), this Court has been divided for a number of years as to the constitutional propriety of busing orders. If I were casting my vote as a single Justice of this Court, rather than as an individual Justice empowered to grant a stay, I would in all likelihood not only vote to grant certiorari in the case if the Court of Appeals for the Fifth Circuit affirmed it, but would also give the most serious consideration to voting on the merits to reverse that decision.
However, as has been frequently pointed out, that is not the role of an individual or Circuit Justice in a case such as this. That obligation is to determine whether four Justices would vote to grant certiorari, to balance the so-called “stay equities,” and to give some consideration as to predicting the final outcome of the case in this Court.
For these reasons, and because Mr. Justice Powell is the Circuit Justice for the Fifth Circuit, and more familiar with the situation of any case in it than I could be, I am unwilling to “second-guess” his own denial of the application in this case. I accordingly deny the reapplication for a stay.
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Heckler v. Lopez, 463 U.S. 1328 (U.S. 1983)…ether four Justices would vote to grant certiorari, to balance the so-called ‘stay equities/ and to give some consideration as to predicting the final outcome of the case in this Court.” Gregory-Portland Independent School District v. United States, 448 U. S. 1342 (1980) (Rehnquist, J., in chambers). The Secretary’s stay application does not come to me in the posture of the usual application, however. The Secretary does not ask me to stay the judgment of the Court of Appeals pending the disposition of a pet…
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Heckler v. Redbud Hosp. Dist., 473 U.S. 1308 (U.S. 1985)…r Justices would vote to grant certiorari, to balance the so-called ‘stay equities,’ and to give some consideration as to predicting the final [*1312] outcome of the case in this Court.” Gregory-Portland Independent School District v. United States, 448 U. S. 1342 (1980) (Rehnquist, J., in chambers). In this case, however, the Secretary is not asking for the usual stay of a judgment of the Court of Appeals pending the disposition of a petition for certiorari in this Court. She asks instead that I grant a st…
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Heckler v. Blankenship, 465 U.S. 1301 (U.S. 1984)…ther four Justices would vote to grant certiorari, to balance the so-called ‘stay equities,’ and to give some consideration as to predicting the final outcome of the case in this Court.” Gregory-Portland Independent School District v. United States, 448 U. S. 1342 (1980) (Rehnquist, J., in chambers). These factors lead me to conclude that the request for a stay should be granted. By granting the Secretary’s petition for a writ of certiorari in Day, this Court has already determined that the question of judic…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Columbus Bd. of Educ. v. Penick, 439 U.S. 1348 (U.S. 1978)