OK, so--as expected--several Republican Presidential candidates have spoken publicly in support of Kim Davis, the "no gay marriage licenses" Kentucky Court Clerk. Mike Huckabee has planned to head to Kentucky and "stand with" Davis, Ted Cruz has named her an example of "persecution", and Rand Paul has said...well, he offered up a word salad that seemd to indicate some level of support for Davis.
Buried in the legal processes of the Davis case is one HECK of a good question that SOMEONE should ask Huckabee, Cruz, Paul and any other conservative supporting Davis.
Head below the fold for my newly-minted "gotcha question"...
First, a bit of background...
Most folks know that Davis requested a stay of Judge Bunning's order, and took her requests for such a stay all the way to the US Supreme Court, only to be rejected at every turn. Well, it's that last piece--the SCOTUS denial of her request for a stay--that gets rather interesting.
Under normal SCOTUS procedure, requests for stay from a particular CIircuit Court of Appeal land on the desk of a particular Supreme Court Justice. In this case, since Kentucky is part of the 6th Circuit, Davis' request for stay landed in Jsutice Elena Kagan's lap.
Now, Justice Kagan could have granted or rejected the request on her own authority, and that would have been absolutely proper under SCOTUS procedure; in fact, that's how many stay requests are handled. However, the notice that Davis' request was denied indicates that Justice Kagan submitted the request to the FULL Supreme Court (italics added):
The application for stay presented to Justice Kagan and by
her referred to the Court is denied.
which changes the picture substantially.
When an application is referred to the full Court, the assent of five Justices is required to issue a stay; as the A Reporter's Guide to Applications Pending Before the Supreme Court of the Unites States describes the process:
The Circuit Justice may act on an application alone or refer it to the full Court for consideration. The fact that an application has been referred to the full Court may not be known publicly until the Court acts on the application and the referral is noted in the Court’s order. Applications for stays in capital cases are often, though not always, referred to the full Court. If an application is referred, the Justices do not meet officially or publicly, but confer, sometimes by phone, or through their law clerks.
Once the full Court has acted on an application, there is no further opportunity to request relief from this Court unless there are subsequent petitions based on different issues working their way through the judicial system.
If the full Court acts on an application, five Justices must agree in order for the Court to grant a stay, but the votes of only four Justices are required to grant certiorari.
Looking at other SCOTUS orders regarding applications for stays, it seems routine to see dissenting Justices listed by name, such as found in
this recent order:
The application for stay of execution of sentence of death presented to Justice Alito and by him referred to the Court is denied.
Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would grant the application for stay of execution.
and
this one:
The application for stay presented to The Chief Justice and
by him referred to the Court is denied.
Justice Scalia and Justice Thomas would grant the application for stay.
By referring Davis' request to the full Court, Justice Kagan gave every Justice a chance to informally "vote for" a stay, but the order includes no "Justice [blank] would grant the application for stay" language. A plain reading of the order, then, would indicate that either:
All 9 Justices declined to grant a stay.
or:
None of the Justices who "would grant" a stay wanted their position announced in the order.
Either of those would be a VERY powerful statement. Basically, SCOTUS Justices will only issue a stay in matters they believe stand a reasonable chance of earning a writ of certiorari to be heard by the full Court as an appeal. So, the fact that none of the Justices would issue a stay (or felt strongly enough to include their "would grant" dissent in the order) seems to indicate that none of them believed that Davis' case would be accepted by the Supreme Court on appeal.
So, here's the question for Huckabee, Cruz, Paul, et al.:
When Kim Davis asked the US Supreme Court for a stay to delay Judge Bunning's order against her, even the four Justices who dissented from the ruling legalizing same-sex marriage declined her request. What would you say to Justices Alito, Scalia, Thomas and Chief Justice Roberts about their refusal to act on Davis' behalf?
Yeah, I know that NO ONE will actually ask that question of them, but I'd LOVE to see if any of these Presidential wannabes are willing to publicly throw Roberts, Scalia, Alito and Thomas under the proverbial bus...
(EDIT: Diary edited to correct my "only one Justice required to obtain a stay" error. Many thanks to AJayne for catching my mistake and letting me know in the comments!)