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Applications to Individual Justices

28 U.S.C.A. § 42. provides that applications can be made to individual members of the United States Supreme Court as individual Justices or as Circuit Justices.  The individual Justices are allotted as Circuit Justices among the Circuits.  An individual Justice, as a Circuit Justice, does not possess the supervisory powers of a court of appeals concerning the activities of the district courts within its circuit.[i]

An individual Justice of the Supreme Court has no power to dispose of cases on their merits.  Moreover, a Circuit Justice has no authority to revise, modify, or reverse the order of a United States Court of Appeals on the merits of a controversy.  S/he has no authority to enjoin restraints on First Amendment rights as an associate Justice of the Supreme Court.[ii]  An individual Justice of the Supreme Court can stay the use of evidence in a state criminal proceeding only upon the most unequivocal showing of a right to immediate federal equitable relief.[iii]  In cases where the applicant is able to rebut the presumption that the decisions are correct both on the merits and on the proper interim disposition of the case, relief from a single Justice is appropriate.[iv]

By appeal or certiorari, a Circuit Justice may grant bail on an appeal from a federal court conviction or in a case brought from a state court to the Supreme Court.[v]  Moreover, a Circuit Justice has power to allow bail pending appeal from a district court to a court of appeals.[vi]  However, a Circuit Justice is authorized to grant bail pending appeal from one state court to another state court only if there is state’s abolition of bail, or a potential mooting presenting substantial federal issues.[vii]

Notwithstanding a denial of bail by a district court and the court of appeals, an individual Justice of the Supreme Court is authorized and obliged by the Federal Rules of Criminal Procedure and by the Bail Reform Act to make an independent determination of an application for bail pending appeal to a United States Court of Appeals.[viii]  If the application does not state the questions on appeal, a Circuit Justice will deny an application for bail pending appeal.[ix]  A Circuit Justice will grant bail pending appeal to a court of appeals where:

  • the appeal is not frivolous or taken for delay;
  • it is not clear that the right to bail may be abused;or
  • the community is threatened by the applicant’s release [x]

Where admission to bail is sought pending review of a judgment of conviction by the Supreme Court, the Supreme Court Justice’s discretion is broader than where the application involves an appeal to the court of appeals.[xi]  Moreover, where the Justice is not persuaded that the issue raised by the applicant is frivolous, and there is no other reason for denying bail under the terms of the Bail Reform Act, an application for bail pending disposition of a petition for certiorari will be granted by a Circuit Justice.[xii]

If an application for bail pending disposition of a petition for certiorari fails to show that the questions presented are nonfrivolous, the application will be denied.[xiii]  The individual Justice must determine whether at least four members of the Court would vote to grant certiorari.[xiv]  Sup. Ct. R. 22.1 provides that an application addressed to an individual Justice must be submitted to the Clerk of the Supreme Court, who will promptly transmit it to the Justice concerned if an individual Justice has authority to grant the sought relief.  Sup. Ct. R. 22.2 provides that the original and two copies of any application addressed to an individual Justice must be filed in the form prescribed by the Rules of the Supreme Court.  It must be accompanied by proof of service on all parties as required by rule.

Sup. Ct. R. 22.3 provides that the motion or application must be addressed to the Justice allotted to the circuit within which the case arises.  When the Circuit Justice is unavailable for any reason, the application addressed to that Justice will be distributed to the Justice then available who is next junior to the Circuit Justice, with the Chief Justice’s turn following that of the most junior Justice.

Sup. Ct. R. 30.2 provides that unless action on the application is by law restricted to the Circuit Justice or is untimely pursuant to the rules of the Supreme Court, a Justice denying an application will note the denial on the application.  Subject to the applicable provisions of the Rules of the Supreme Court, the party making the application, except in a case of an application for extension of time, may renew it to any other Justice.  Sup. Ct. R. 22.4 provides that any renewed application may be made by sending a letter to the Supreme Court Clerk designating the Justice to whom the application is to be directed, to which must be attached 10 copies of the original application, together with proof of service pursuant to Rules of the Supreme Court.  However, after an individual Justice has denied an application for a stay pending review, another individual Justice will refer a reapplication [xv]

[i] Ehrlichman v. Sirica, 419 U.S. 1310, 95 S. Ct. 6, 42 L. Ed. 2d 25 (1974)

[ii] Locks v. Commanding General, Sixth Army, 89 S. Ct. 31, 21 L. Ed. 2d 78 (U.S. 1968).

[iii] O’Rourke v. Levine, 80 S. Ct. 623, 4 L. Ed. 2d 615 (U.S. 1960).

[iv] Bellotti v. Latino Political Action Committee, 463 U.S. 1319, 104 S. Ct. 5, 77 L. Ed. 2d 1421 (1983)

[v] California v. Alcorcha., 86 S. Ct. 1359, 16 L. Ed. 2d 1359 (U.S. 1966).

[vi] D’Aquino v. U.S., 180 F.2d 271 (9th Cir. 1950).

[vii] California v. Alcorcha., 86 S. Ct. 1359, 16 L. Ed. 2d 1359 (U.S. 1966).

[viii]Leigh v. U.S., 82 S. Ct. 994, 8 L. Ed. 2d 269 (U.S. 1962)

[ix] Bowman v. U.S., 85 S. Ct. 232, 13 L. Ed. 2d 171 (U.S. 1964).

[x] Leigh v. U.S., 82 S. Ct. 994, 8 L. Ed. 2d 269 (U.S. 1962).

[xi] Roth v. U.S., 77 S. Ct. 17, 1 L. Ed. 2d 34 (U.S. 1956).

[xii] Mathis v. U.S., 389 U.S. 801, 88 S. Ct. 8, 19 L. Ed. 2d 53 (1967).

[xiii] Baytops v. State of New Jersey, 389 U.S. 801, 88 S. Ct. 8, 19 L. Ed. 2d 55 (1967).

[xiv] Edwards v. People of the State of New York, 76 S. Ct. 1058, 1 L. Ed. 2d 17 (U.S. 1956).

[xv] New York Times Co. v. Jascalevich, 439 U.S. 1331, 99 S. Ct. 11, 58 L. Ed. 2d 38 (1978).

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