While profmatt’s rec'd diary is an excellent introduction to the general workings of the Supreme Court, is has several details wrong [with respect to these cases]. To be clear, profmatt is absolutely correct about how things usually work in the Supreme Court. But the procedures he describes occur when the petitioners know what the hell they are doing. Apparently, that’s not the case with the wingnuts involved in these nonsense lawsuits.
So, for those law geeks among us, I did some research and want to take a stab at providing additional clarity.
There are currently at least THREE matters pending before the Supreme Court on this (non)issue: Philip J. Berg v. Barack Obama, No. 08-570; and Leo Donofrio v. Nina Mitchell Wells (New Jersey Secretary of State), No. 08A407; and Cort Wrotnowski v. Susan Bysiewicz (Connecticut Secretary of State) No. 08A469.
Berg is the only one to have actually filed a petition for cert. Donofrio is the one being considered tomorrow. None of the three has proceeded to the Supreme Court following the usual course.
Berg Lawsuit
Berg initially filed a lawsuit in the Eastern District of Pennsylvania seeking a declaratory judgment that Barack Obama was ineligible to be President under Constitution's Natural Born Citizen Clause, and seeking to enjoin his candidacy. The district court judge granted Obama’s motion to dismiss in an opinion.
Berg filed a notice of appeal to the Third Circuit Court of Appeals but, rather than waiting for the Third Circuit to act, he filed (on October 30, 2008) a "petition for a writ of certiorari before judgment" in the Supreme Court. These are very rare -- the Supreme Court almost never takes cases directly from the district court. (In fact, the general rule is that, even when a case has gone through the normal process, the Supreme Court will not consider any specific issues that the court of appeals did not consider when they heard the case). Under Rule 11 of the Supreme Court rules, a petition for cert before judgment is granted only when the case is of "imperative public importance." The Court hasn’t granted one in over four years and, as far as I can find, has granted fewer than 10 such petitions in the last 50 years -- including in seminal cases like Mistretta (constitutionality of the federal sentencing guidelines), Nixon (whether the president is subject to subpoena), and Youngstown Steel (constitutionality of the president essentially seizing the steel industry in a time of war).
Along with his cert petition, Berg filed an application for an injunction pending disposition of his petition. The application was submitted to Justice Souter, who denied it on November 3. Berg DID NOT resubmit that application, so that was the end of any injunction issue in his case.
When a petition is filed, the respondent often files a "brief in opposition to certiorari." Because the federal government is so often the named respondent in frivolous suits, it frequently waives its right to respond. On November 18, the Solicitor General (representing the Federal Election Commission, who effectively takes the place of Senator Obama), filed notice that it was waiving its right to respond. The next step is that the petition will be "distributed for conference," probably sometime in the next few weeks. Berg’s petition has not yet been circulated for conference. At that point, the Court will (probably) deny the petition, or (improbably) request that the Solicitor General file a response to it.
Donofrio lawsuit
Leo Donofrio filed a suit in New Jersey state court seeking to prohibit the distribution of "defective ballots" which, he claimed, contained the names of three presidential candidates who are not "natural born citizens" (i.e., Barack Obama, John McCain, and Socialist Workers’ Party candidate Roger Calero). He contends that, regardless where Senator Obama was born, is cannot be a "natural born citizen" because he was a British citizen "at birth" and, since he was born as a British citizen/subject, his United States citizenship was not "natural." (I’m just relaying information here folks -- don’t ask me to try to explain what’s in this guy’s head.)
I can’t find a copy of exactly what he filed in New Jersey, but eventually the New Jersey Supreme Court denied his "application for emergency relief" in a one-paragraph order on October 31, 2008.
So, on November 3, he filed application for a stay in the U.S. Supreme Court. (to read the pages in order, start at the end and work your way up hitting the "previous" key).
Here’s the funny part: apparently the Court clerk docketed his application as an "application for stay pending the filing and disposition of a petition for a writ of certiorari," and Mr. Donofrio is pissed because, in fact, he has no intention of filing a petition for cert(!!). He apparently thinks the Court should just rescind the election results based on his stay application.
His application was denied by Justice Souter on November 6. He resubmitted it on November 14 to Justice Thomas, and on November 19 Justice Thomas referred it to the full Court. The application was distributed for the December 5 conference (that’s tomorrow), and the order denying it should be forthcoming on Monday.
Now, why would Justice Thomas refer the application to the full Court? Perhaps to keep Mr. Donofrio from working his way down the list of nine justices and dragging this out forever. Perhaps to try to nip the copycatters (see, e.g., Wrotnowski law suit, blow) in the bud ? Who knows. But I’d bet my house that the application gets denied on Monday. Professor Volokh says referral is common for second applications, and not to read anything into it:
"Likewise, this other case simply involves an application for a stay denied by Justice Souter, refiled and resubmitted to Justice Thomas, and referred to the Court by Justice Thomas — something that is not uncommon, to my knowledge, with second stay requests, and that generally leads to a prompt denial by the Court at the relevant conference (in this instance, the December 5 conference). Search for "referred to the court denied" & date(> 1/1/2000) in Westlaw and you'll find 782 such instances this decade; "referred to the court granted" & date(> 1/1/2000) yields only 60, which should tell you how little you can read into the fact of the referral."
Wrotnowski law suit
This one is pretty much like Donofrio’s, but starting on Connecticut rather than New Jersey. Wrotnowski has also filed a stay application (with no indication that a cert petition is forthcoming); Justice Ginsberg denied the application on November 26, and he resubmitted it to Justice Scalia on November 29. No further action has been taken.
To make a long story short (what? Too late?)... there’s nothing to see here people, move along.
addie