Nick Krieger (@nckrieger):
As was widely reported yesterday, Attorney General Bill Schuette has asked the United States Supreme Court to stay the preliminary injunction entered by U.S. District Judge Gershwin Drain in the Michigan straight-party voting case. His emergency application is addressed to Circuit Justice Elena Kagan.
The United States Court of Appeals for the Sixth Circuit, which has denied Schuette’s request for a stay pending appeal as well as his petition for initial consideration en banc, has not yet considered the issue on the merits or issued a final judgment. Accordingly, Schuette has chosen the unusual route of requesting a stay from the Supreme Court pending a merits decision by the Sixth Circuit panel.
Although not unprecedented, such relief is unquestionably not common.
Consider the statement of the late Chief Justice William Rehnquist (although he was not yet Chief Justice at the time), hardly one of the Supreme Court’s liberal members: “[B]ecause an appeal from the District Court order is presently pending before the Court of Appeals . . . the rule to be followed is that ordinarily a stay application to a Circuit Justice on a matter before a court of appeals is rarely granted.” Atiyeh v Capps, 449 US 1312, 1313 (1981) (Rehnquist, J., in chambers) (quotations omitted).
And unlike a mandatory injunction that may be in the nature of mandamus, the prohibitory injunction entered by District Judge Drain in the instant case simply preserves the status quo by preventing the enforcement of 2015 PA 268 until the court can hear the case on the merits. See Heckler v Lopez, 463 US 1328, 1333 (1983) (Rehnquist, J., in chambers).
Justice Kagan has called for a response to the emergency application by 10 a.m. on Wednesday, September 7. Given that Schuette has requested a ruling on his emergency application by September 8, this won’t leave much time.
Of course, it would be irresponsible for anyone to claim to know with certainty what the Supreme Court will or will not do. But let’s just say that Schuette’s chances of obtaining a stay from SCOTUS probably aren’t very good.