American Jurisprudence, Second Edition (Database updated May 2004)

Stay Pending Review by United States Supreme Court [§§446-466]

§ 446. GENERALLY

In any case in which the final judgment or decree of any court is subject to review by the Supreme Court on writ of certiorari, the execution and enforcement of such judgment or decree may be stayed for a reasonable time to enable the party aggrieved to obtain a writ of certiorari from the Supreme Court. Whether to grant a stay of enforcement of a judgment pending certiorari to the Supreme Court to review the judgment rests in the court's sound discretion. Although the power of the Supreme Court to issue stays pending review is vital to the proper functioning of the court's jurisdiction, the discretion to do so is not liberally exercised.

A stay pending action by the court on a petition for writ of certiorari will be granted only when:
(1) there is a reasonable probability that four justices will vote to grant certiorari;
(2) there is a fair prospect that a majority of the justices will find the decision below erroneous; and
(3) a balancing of the equities weighs in the appellant's favor.

Furthermore, even when the conditions necessary for the grant of a stay are found to exist, sound equitable discretion will deny a stay when a decided balance of convenience does not support the stay.

Observation: In assessing whether a stay should be granted, a Circuit justice to whom the application for stay has been made acts as a surrogate for the entire court. Thus, the role of an individual justice is not to consider his or her own personal view as to how he or she would vote on the merits on a case in which a stay is sought pending disposition of a petition for certiorari; his or her obligation is to determine whether four justices of the court will vote to grant certiorari, to balance the stay equities, and to give some consideration as to predicting the outcome. However, he or she may informally consult with other justices as to whether they would grant or deny the stay.