The talk shows last night were all atwitter over Justice Ruth Bader Ginsburg’s grant of a temporary stay for the Supreme Court to consider the application for an emergency stay of the sale of Chrysler to a government-backed shell corporation.
What do we know this morning? A few thoughts:
- The only thing we know for sure is…the Court needs more time. A temporary stay does not provide any direct indication as to how the Court will rule on the application.
- That said, this is an unusual move. Temporary stays are relatively rare outside of the death penalty context. Ginsburg, and likely the Court as a whole, are giving this issue extra attention, perhaps due to its importance in terms of law as well as economic consequences–in other words, the government’s fear-mongering may have done it a disservice.
- Many expected an order last night–on the assumption that the Court needed just a few hours more to draft an opinion or dissents. That didn’t happen, which is telling.
- Specifically, we can predict that the Court is unlikely to reject the challenge out of hand–that could have been accomplished in short order, as with most such applications. This may indicate that one or more justices are inclined to grant the stay, or at least leaning in that direction.
- It may be that the Court is waiting for reply briefs from the challengers. That just means, though, that not all the justices’ minds are made up.
- An order could issue at any time, but it is likely to come soon. That’s the nature of temporary stays, and there is a distinct urgency in this case.
The odds are still heavily stacked against those challenging the sale–that’s the nature of last-minute challenges. But the events so far do give some small reason for hope; this is exactly what the Court would do as a first step if it were seriously considering taking the case.