Yesterday the government filed its opposition to Ed Moloney and Anthony McIntyre’s application to Justice Breyer for a stay in the Belfast Project case. In an earlier order, Justice Breyer had granted a temporary stay pending the government’s opposition.
The brief was filed by Solicitor General Donald B. Verrilli, Jr. It makes two kinds of argument. The first, familiar to those who have been following the case, is that Moloney & McIntyre are wrong on the merits. The second is a kind of argument unique to Supreme Court practice. Because the threshold question, on an application for a stay, is whether the applicants can show a “reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari,” and because the Supreme Court’s docket is essentially entirely discretionary, the brief takes a lot of time explaining why, in the government’s view, the case does not warrant the Supreme Court’s attention.
I’ll have more on this when Justice Breyer, or the full court, makes a decision on whether to extend the stay.
By the way, I have the application for a stay but have not been able to post it for technical reasons. I’m working on it!