Supreme Court Justice and Former Seventh Circuit Judge Cries Fake Tears About Public Perception

In re A.F. Moore & Assocs., 974 F.3d 836, 841 (7th Cir. 2020)

We do not doubt that the district court acted in good faith when resolving the motion before it, but had it considered the appropriate standard for a stay pending a petition for a writ of certiorari, it may well have realized that its position was fraught.

The defendants’ motion obligated the district court, which had been reversed by a reviewing court, to weigh the likelihood that it might be later vindicated by our own reversal.

That analysis is only a step removed from a court declaring that it was right all along and entering the judgment just reversed—the most obvious violation of the mandate rule.

See Deutsche Bank Nat’l Tr. Co. v. Burke , 902 F.3d 548, 551 (5th Cir. 2018) ;

Barrow v. Falck , 11 F.3d 729, 730 (7th Cir. 1993).

District courts have routinely refused invitations to engage in this sort of stay calculation for just that reason.

See, e.g. , William A. Graham Co. v. Haughey , 794 F. Supp. 2d 566, 569 (E.D. Pa. 2011) ; Lentz , 352 F. Supp. 2d at 726 ; Mister v. Illinois Cent. Gulf R.R , 680 F. Supp. 297, 299 (S.D. Ill. 1988) ; Studiengesellschaft Kohle, mbH v. Novamont Corp. , 578 F. Supp. 78, 80 (S.D.N.Y. 1983).

In this case, an additional factor dispelled any doubt about whether the district court could go down this road: we had already denied the defendants’ request for the very same relief.

Once we refused to stay the mandate, the taxpayers’ only recourse was with the Supreme Court, which has ample authority to stay our judgment under § 2101(f) or otherwise.

See S. CT. R. 23 ; Ohio Citizens for Responsible Energy, Inc. v. NRC , 479 U.S. 1312, 1312, 107 S.Ct. 682, 93 L.Ed.2d 692 (1986) (Scalia, J., in chambers) (noting authority to issue stay even when § 2101(f) does not apply).

The district court, in contrast, was not in a position to overrule us.