In his order dissenting from the denial of Alaska’s request for a stay, Judge O’Scannlain cited Herbert v. Kitchen (2014).

 

Is Herbert v. Kitchen still good law? How should we understand it? Is the precedent valid because it is still on the books? Is it invalid because we now know that (at least) 5, and perhaps 6 Justices no longer support that decision to stay the judgment? Is there a difference between Hebert granted a stay in an emergency context, but a stay is not appropriate following the formal certiorari process? Have the circumstances changed to render this precedent obsolete?

On the one hand, nothing the Supreme Court has done would, in the least, cast doubt on that precedent of super-recent vintage. On the other hand, what the Court has *not* done casts serious doubt on this precedent. By denying certiorari on the petition for certiorari from the 10th Circuit, the stay originally granted in Herbert v. Kitchen has been lifted.

I don’t think this is a valid citation. And,unless the Court says otherwise, Herbert should not be relied on in this context. Barely a year old, Herbert v. Kitchen (January 6, 2014), has been superseded before it even made it into the U.S. Reports. How often does that happen?