On December 30, 2016, two days before leaving office, former Governor Pat McCrory filed a petition for an emergency stay to the US Supreme Court (SCOTUS) seeking to prevent the 2017 special elections ordered to remedy unconstitutional gerrymandering in North Carolina. During the summer a three-judge federal court found a number of NC state legislative districts were gerrymandered in a manner that violates the Equal Protection Clause of the US Constitution. McCrory has appealed that decision.

Petitions for a stay are addressed to the individual SCOTUS justice who oversees the federal circuit in which the petitioner is located. For North Carolina that is Chief Justice John Roberts, a George W. Bush appointee.  My personal opinion is that Roberts is a wicked smart traditional conservative who worries about SCOTUS’s appropriate role in the political arena. Make no mistake, Roberts is a conservative, but not the Scalia, Alito, Thomas type of conservative. It can be hard to call the ball when he’s shooting.

In order to merit a stay, the GOP petitioners must establish: (1) there is a “reasonable probability” that four justices will grant certiorari, or agree to review the merits of the case; (2) there is a “fair prospect” that a majority of the Court will conclude upon review that the decision below on the merits was erroneous; (3) irreparable harm will result from the denial of the stay; and (4) finally, in a close case, the Circuit Justice may find it appropriate to balance the equities exploring the relative harms to the applicant and respondent, as well as the interests of the public at large. Chief Justice Roberts 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.

Once the full Court has acted on an application, there is no further opportunity to request relief from the Court unless there are subsequent petitions based on different issues working their way through the judicial system.

There are two probable scenarios for the disposition of the application.

  • Roberts may simply deny it without comment or explanation (which would allow the GOP to appeal to another justice of its choice); or
  • Roberts may refer it to the entire 8 member Court, which may deny or grant it.

In practice, renewed applications usually are referred to the full Court to avoid such a prolonged procedure. If the Court grants full review, any stay issued will remain in effect until the Court hands down a decision on the merits and judgment is issued.

Now comes the guessing. What do I think will happen, based on absolutely zero cases personally argued before the Supreme Court? My money is on a denial, with or without opinion.

Here’s why: The goal of the petition is to cause the Court to intervene in the political process to preserve as much power in the North Carolina GOP as possible despite the election of Cooper, Josh Stein (a Democratic Attorney General) and a Democratic majority on the North Carolina Supreme Court. This is part of the overall strategy to reduce Cooper’s appointment powers and to screw around  with the state Board of Elections and the cascade of powers that flow from that institution. I don’t think SCOTUS, Chief Justice Roberts in particular, is going to choose to wade into North Carolina’s particularly nasty political mess on a petition for a stay. He has previously described the very limited circumstances when a Court should wade into political questions.

In order to resolve the petition in the GOP’s favor the Court would essentially have to opine on the merits of the appeal as a whole. Without the benefit of a full briefing, oral arguments and the input of amicus curiae, the Court would have to decide to overrule the 3 judge panel that heard evidence in North Carolina. This seems unlikely to me given the high stakes. Thus, even though SCOTUS would certainly be within its powers to grant the stay, my money is on a denial. That and $1.50 will get you a Coke.