Kenders' Musings

Yesterday evening the City Attorney in San Diego along with Mayor Jerry Sanders decided to take the Mt. Soledad case to the Supreme Court of the United States. I have already assembled one of our Supreme Court teams to file briefs on behalf of the Members of Congress that we represent, as well as ACLJ Members across the country in this important case. It appears at this time that the City will be asking for both a stay of the Ninth Circuit decision as well as a petition for writ of certiorari. The stay of the decision will allow the monument to remain while the litigation is pending at the Supreme Court. The petition for certiorari will ask the Court to grant plenary review of the Ninth Circuit decision.

Generally, under Supreme Court practice, the Circuit Justice in charge of the Ninth Circuit Court of Appeals has the authority to grant the stay. In this case, the Circuit Justice is Anthony Kennedy. Justice Kennedy can either grant the stay, deny the stay, or refer the stay to the entire Supreme Court for determination. It takes five votes to obtain a stay. In order for the case to be reviewed by the Supreme Court on the merits, it only takes four votes.