On the Roberts Court, A Grant of a Stay, Followed by A Cert Grant, Almost Always Yields a Reversal

July 10th, 2017

Since Chief Justice Roberts’s confirmation, in almost every case where the Court granted the application for a stay and the petition for a writ of certiorari, the ultimate dispositions was a reversal, at least in part.

In ten cases where a stay was granted, and certiorari was granted, following oral arguments, the Court reversed (at least in part):

  1. Hill v. McDonough (2006)
  2. Leegin Creative Leather Prod., Inc. v. PSKS, Inc. (2007)
  3. Nken v. Holder (2009)
  4. Florida v. Powell (2010)
  5. Skinner v. Switzer (2011)
  6. Arizona Free Enter. Club’s Freedom Club PAC v. Bennett (2012)
  7. Perry v. Perez (2012)
  8. Mellouli v. Lynch (2015)
  9. Whole Woman’s Health v. Hellerstedt (2016)
  10. Advocate Health Care Network v. Stapleton (2017).

In ten other cases where a stay was granted, after the cert grant, the Court GVR’d (granted, vacated, and remanded) the petitions:

  1. Rutherford v. McDonough (2006)
  2. Tennant v. Jefferson Cty. Comm’n, (2012)
  3. Am. Tradition P’ship, Inc. v. Bullock (2012)
  4. Balentine v. Thaler (2013)
  5. Haynes v. Thaler (2013)
  6. V.L. v. E.L. (2016)
  7. McDonnell v. United States (2016)
  8. Weston Educ., Inc. v. U.S. ex rel. Miller (2016)
  9. Gloucester Cty. Sch. Bd. v. G. G. ex rel. Grimm (2017)
  10. North Carolina v. Covington (2017).

In two cases, an injunction (rather than a stay) was issued, and after certiorari was granted, the Court later reversed the lower courts (at least in part):

  1. Holt v. Hobbs (2013)
  2. Little Sisters of the Poor v. Burwell (2016).

There are two outliers. In one case, the Court issued a stay, followed by a grant of certiorari, which was subsequently dismissed as improvidently granted: Duncan v. Owens (2016).

There is another exception, that is an oddity all to itself. On January 23, 2015, the Court granted certiorari for two death penalty cases from the Tenth Circuit involving Charles F. Warner and Richard E. Glossip. By that point, however, Warner had already been executed; the Court had already denied his stay over the dissents of Justices Ginsburg, Breyer, Sotomayor, and Kagan. At the time, Adam Liptak noted in the New York Times that under the Court’s practices “It takes four votes to hear a case, but it takes five to stay an execution.” The failure to provide the so-called “courtesy-fifth” vote for Warner proved to be quite controversial, especially since certiorari was soon granted. Five days later, the Court, without recorded dissent, granted a stay of execution for Glossip. As a result, he would not be executed during deliberations. After the case was argued, on June 29, 2015, the Court affirmed the Tenth Circuit by a 5-4 vote.

Other than these two outliers, whenever the Court granted a stay (or injunction), and granted certiorari, the Court ultimately reversed. In effect, a decision to grant a stay has been a very strong predictor that the moving party was going to succeed on the merits. The first factor identified in Nken v. Holder— “whether the stay applicant has made a strong showing that he is likely to succeed on the merits”—appears to be dispositive. Moreover, in each of the other twenty-two cases, Justice Kennedy did not dissent from the grant of stay, and subsequently voted with the majority to reverse the lower court.

Close Court watchers should not be surprised by this metric. Over the last seven terms, Justice Kennedy has been in the majority of 5-4 cases an average of 88%. Justice Ginsburg comes in a distant-second with a 52% average. In these cases, when Justice Kennedy goes along with the issuance of a stay, he ultimately concludes that the lower court erred. A general rule can be formulated about this aspect of the Roberts Court’s “shadow docket”: where Justice Kennedy does not dissent from the grant of a stay, and certiorari is granted, the lower court will be reversed, at least in part.