What we’ve seen several times is birther cases submitted to a justice of the Supreme Court, rejected by that justice, filed again with another justice, and finally distributed to the whole court. This is pretty much standard practice.
If a Justice acts alone to deny an application, a petitioner may renew the application to any other Justice of his or her choice, and theoretically can continue until a majority of the Court has denied the application. In practice, renewed applications usually are referred to the full Court to avoid such a prolonged procedure.
A Reports Guide to Applications pending before the Supreme Court
Nevertheless, some birthers are all excited by this exact scenario in Orly Taitz’ case of Noonan v. Bowen, denied by Justice Kennedy, resubmitted to Justice Roberts and distributed for consideration on February 15.
One birther, Al Halbert, in a paroxysm1 of conspiracy optimism, wrote:
This may give the Chief Justice the room he needs to excuse himself from this duty [administering the Oath of Office to President Obama] as the court will conference this grave matter a short three weeks later. Of course this gives Obama time to consider resigning and sparing the nation the agony of such a matter having to be taken-up by SCOTUS.
And it may not, for we’ll see what Chief Justice Roberts does. [Historical note: Chief Justice Roberts did indeed administer the oath of office to Barack Obama twice, on January 20 and 21.] As far as I’m concerned, the chances that the Supreme Court will hear the case are between negligible and nil. Perhaps I should go ahead and write the article for automatic publication on February 19, “Supreme Court declines to hear Noonan case without comment. In the list of Supreme Court orders published today, Noonan appeared on the list under ‘denied.’”
1I’m trying to get the reading level up.
s/18/19/
It will not be “denied cert” because what Taitz has submitted is not a cert petition. It’s a stay application.
And the procedure you outline is the procedure for stay applications. Cert petitions have a different procedure.
What the birthers fail to realize is that Roberts could have granted the stay if he believed it had merit. That would have been something for them to get excited about.
They also have a fundamental misunderstanding of the role of SCOTUS. The only way that SCOTUS will ever rule on the definition of “natural born citizen” is if a lower court rules on it and that decision is appealed to SCOTUS. SCOTUS is not a fact-finding body. It rules on the law and either affirms or overrules lower court decisions. The birthers have been laboring under their misconceptions since Berg’s case was scheduled for a conference late in 2008. They were convinced that it meant that Obama was going to have to “show his papers.”
Besides, as I have pointed out before, by the time February 15 rolls around there will be nothing left to be stayed. The votes have been counted and certified, and Obama will be inaugurated on Sunday with the public ceremony on Monday.
President’s day, how could I forget?
“I’m told by attorneys that this is pretty much standard practice. ”
Even the Supreme Court says this is routine.
http://www.supremecourt.gov/publicinfo/reportersguide.pdf
“If a Justice acts alone to deny an application, a petitioner may renew the application to any other Justice of his or her choice, and theoretically can continue until a majority of the Court has denied the application. In practice, renewed applications usually are referred to the full Court to avoid such a prolonged procedure.”
Taitz has a post up:
And, yes, that’s just the title.
Let me remind everyone that Taitz has submitted a stay application, not a cert petition.
Stay applications are resolved on paper — they are never argued before the court. If Taitz wants them to “hear this case in open court” then she will have to submit a cert petition.
I would suspect that Justice Scalia would think that anybody who wants their case heard should get off their butt and file a petition.
And it’s not a hearing, it’s a conference. One would think that by now Orly would have figured out the difference.
If she could listen in on the conference, it would be amusing to see the expression on her face when it ends and she realizes that her petition wasn’t even mentioned. Corrupt clerks!
I’m a bit surprised that she hasn’t filed a motion to have Sotomayor and Kagan recuse themselves.