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August 5 — U.S. Supreme Court Justice Stephen G. Breyer was trying to inspire his colleagues with his unusual concurrence Aug. 3, University of Chicago Law School professor William Baude told Bloomberg BNA Aug. 4.
He was referring to Breyer's vote to stay lower court rulings that allowed a transgender high school student to use the boys bathroom in accordance with his gender identity, Gloucester Cty. Sch. Bd. v. G.G., 2016 BL 251590, U.S., No. 16A52, stay granted 8/3/16 .
Breyer said he was agreeing to the stay as a “courtesy” to his four colleagues who wanted to grant the stay but didn't have the five votes necessary to do so.
That “looks a lot like the largely discarded practice of courtesy fifth votes,” traditionally applicable in death penalty cases, Cornell University Law School professor Michael Dorf told Bloomberg BNA Aug. 4.
Breyer “is hoping that by adhering to his extension of the ‘courtesy fifth vote' in all cases,” he will convince his colleagues to “adhere to it as well, especially in death penalty cases,” Baude said.
Justices have traditionally adhered to the “courtesy fifth vote” in death penalty cases to avoid the macabre situation where an execution moots a case some justices wanted to hear.
The unwritten rule arises from the fact that it takes five justices to stay a case, but only four to agree to hear one.
When four justices want to grant a case, “it is important for somebody to provide a fifth vote to stay the case so that the case doesn't become moot,” Baude said.
That courtesy vote is traditionally supplied by the Chief Justice.
But although Chief Justice John G. Roberts Jr. signaled support for the practice during his confirmation hearings, the court hasn't adhered to the practice lately.
Breyer, it seems, is trying to revive the practice.
Roberts and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. voted to stay lower court rulings in favor of a Virginia student who wanted to use the bathroom that corresponded to his gender identity, rather than his biological sex.
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan didn't want to stay the case.
So Breyer provided the fifth vote necessary for the stay.
“In light of the facts that four Justices have voted to grant the application” for a stay, that the Supreme Court is currently in recess and “that granting a stay will preserve the status quo (as of the time the Court of Appeals made its decision) until the Court considers the forthcoming petition for certiorari, I vote to grant the application as a courtesy,” Breyer said.
As a result, the case is stayed until the court can consider whether to review the case in full. The petition for certiorari is due in late August.
Notably, the first day of school for Gloucester County is Sept. 6, 2016—after the deadline.
But the court's first conference to meet and consider pending petitions isn't until Sept. 26, 2016, which means school will be in session when the justices get around to actually considering the request to hear the case.
Breyer's courtesy fifth vote in Gloucester is “different from the traditional ‘courtesy fifth' in an important respect,” Baude said.
Breyer's courtesy vote in Gloucester came when the court was only asked to stay the case, not also review it on the merits.
The courtesy vote is traditionally employed when the justices are asked to stay a case and review it at the same time.
“Breyer wants to extend the tradition to situations where four justices have voted for a stay, but have not necessarily decided to grant certiorari,” Baude said.
That may be because Breyer wants to bring back the defunct practice in capital cases.
Notably, Breyer, joined by Ginsburg, questioned the continued constitutionality of the death penalty in Glossip v. Gross, 83 U.S.L.W. 4656, 2015 BL 206563 (U.S. June 29, 2015).
Breyer has continued to question the validity of the death penalty, dissenting when the court has refused to reengage the issue.
The “argument for a courtesy vote in the death penalty context is much stronger than in a case like Gloucester County, where preserving the status quo is less imperative,” Dorf said.
“Either the respondent is able to use the restroom matching his gender identity in the interim or not, but either way, the issue won't be mooted,” he said.
“Thus, if Justice Breyer were to revive the practice of courtesy fifth votes in this case, that would mean that the practice certainly should extend to capital cases, where the mootness risk is real,” Dorf said.
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