The Supreme Court receives thousands of briefs each term. In addition to the typical petitions, briefs in opposition, amicus briefs, and various other briefs, the Justices also receive applications for stays. These applications are typically requesting a stay of execution, but may request a stay on other types of orders as well.

Applications for stays are governed by Supreme Court Rules 22 and 23. Per Rule 23, a stay may be granted by a single Justice, and any party to the judgment in question may file an application to stay enforcement of the judgment. Regarding the content of an application for a stay, Rule 23.3 states:

An application for a stay shall set out with particularity why the relief sought is not available from any other court or judge. Except in the most extraordinary circumstances, an application for a stay will not be entertained unless the relief requested was first sought in the appropriate court or courts below or from a judge or judges thereof. An application for a stay shall identify the judgment sought to be reviewed and have appended thereto a copy of the order and opinion, if any, and a copy of the order, if any, of the court or judge below denying the relief sought, and shall set out specific reasons why a stay is justified.

Rule 22.3 provides that an application will go to the Justice assigned to the Circuit that the case arises from. Assignments of which Justice presides over each federal circuit are made when the Court’s membership changes. The Supreme Court’s website shows that as of February 2016, following Justice Scalia’s death, the circuit assignments are currently as follows:

  • For the District of Columbia Circuit – John G. Roberts, Jr., Chief Justice
  • For the First Circuit – Stephen Breyer, Associate Justice
  • For the Second Circuit – Ruth Bader Ginsburg, Associate Justice
  • For the Third Circuit – Samuel A. Alito, Jr., Associate Justice
  • For the Fourth Circuit – John G. Roberts, Jr., Chief Justice
  • For the Fifth Circuit – Clarence Thomas, Associate Justice
  • For the Sixth Circuit – Elena Kagan, Associate Justice
  • For the Seventh Circuit – Elena Kagan, Associate Justice
  • For the Eighth Circuit – Samuel A. Alito, Jr., Associate Justice
  • For the Ninth Circuit – Anthony M. Kennedy, Associate Justice
  • For the Tenth Circuit – Sonia Sotomayor, Associate Justice
  • For the Eleventh Circuit – Clarence Thomas, Associate Justice
  • For the Federal Circuit – John G. Roberts, Jr., Chief Justice

The Justice receiving the application may act alone, or may refer the application to the full Court. If the application for a stay is referred to the Court, five Justices must vote to grant the stay (compared to the four votes required to grant a petition for writ of certiorari). An interesting note on this requirement is the practice of what’s referred to as the “courtesy fifth”: when a Justice crosses an ideological line to provide the needed fifth vote in order to maintain the status quo while the order in question is being examined.

Frequently, stay applicants will file their application alongside their petition for a writ of certiorari.

For assistance in preparing a petition, call Cockle today!