Link Roundup: Weeds, Sotomayor, Recent Media
Nancy Polikoff: Israel, Civil Marriage, and Valuing All Families

Jay Wexler: Ginsburg Grants a Stay

Today's post is from law professor and humorist Jay Wexler, author of the forthcoming Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars. He studied religion at the University of Chicago Divinity School and law at Stanford, and worked as a clerk to U.S. Supreme Court justice Ruth Bader Ginsburg. Wexler teaches at the Boston University School of Law, and he blogs at, where this post originally appeared.

Book cover for Holy Hullabaloos links to Beacon Press page for bookSo Monday, Justice Ginsburg issued a stay of a lower court's approval of the whole bankruptcy deal involving Chrysler and the sale of a bunch of its assets to Fiat and whatnot. Though it doesn't happen often, individual justices of the Supreme Court have the authority to grant stays of lower court decisions when they believe that the stay is necessary for the Supreme Court to decide whether to decide the case on the merits.; In other words, if a lower court decision would result in some irreversible action (like the whole Chrysler deal), and if there's a plausible argument that the lower court decision involves some legal issue that might be worthy of Supreme Court review, the adversely affected party might ask a justice to issue an emergency stay of the lower court decision so the whole Court will have some time to decide whether in fact the case is worthy of review. The request goes to the justice who has authority over the geographical area where the case comes from; Justice Ginsburg is the justice in charge of the second circuit area, which includes New York, and so the request went to her. The justice has the option of either just deciding whether to grant the stay him or herself, or alternatively to bring it to the whole Court to decide whether to grant the stay. A decision to grant a stay doesn't mean that the Court will actually go ahead and decide the case on the merits; it just means that the Court thinks the issue is important enough that it needs some time to consider whether to decide the case on the merits.

When I was clerking for Justice Ginsburg in the 1998-1999 term, I had occasion to work on one of these stay requests. It was late in the term--maybe June or something--and as usual I went on a long lunch break. I can't remember whether it was one of those days when I went back to my rat-infested apartment to eat and watch a rerun of Good Times or whether I went to the Au Bon Cafe with friends or what, but I remember coming back after lunch to find this big file on my desk involving a request for an emergency stay in a really famous religion case-- one in which I discuss in Holy Hullabaloos. Now, I'm good at certain things, but one thing I'm not good at is dealing with emergencies. Luckily, there generally aren't any emergencies at the Court. Clerks do a lot of work, but you always know what's coming and you generally have a good amount of time to do it. This allows you to plan your work in a rational fashion and not have to worry that something unexpected is going to come up and bite you in the ass. Well, this file bit me on the ass, and I freaked out. I said something like: "Ahhhh" and wet myself. OK, I didn't wet myself, but I got very nervous and worried and also a little irritated because now I was going to have to do all this work to figure out what the stay application was all about, which meant that I wasn't going to have time to watch more television or work on my unbelieveably horrible novel about a blueberry muffin called "Arrivederci, Loser," the title of which was based on a piece of hate mail that my wife once received from a former nutso friend who thought that my wife had abandoned her for me (she had).

The case in which the stay was requested is too confusing to describe fully here. It basically involved a first amendment Establishment Clause (church/state separation) challenge to the state of New York's decision to grant a community of Satmar Hasidic Jews its own school district so it could administer publicly funded assistance to disabled children in the community. Back in 1994 the Court had invalidated the first version of this arrrangement in the Kiryas Joel v. Grumet case that I discuss in the book.  In subsequent years, the state made several attempts to comply with the Court's decision in that case while still giving the Satmars the authority they wanted. The thing I worked on was a request to stay a lower court decision holding the most recent attempt unconstitutional. Luckily for me, Justice Ginsburg, as usual, knew exactly what to do and didn't really much need my help and so it all turned out fine (the Court in fact granted the stay but didn't end up hearing the case, though a few justices thought they should have), but I still sharply remember the feeling of YIKES I had coming back to lunch to find the latest iteration of a famous case in my field of interest sitting on my desk.