Via Twitter: Why Sotomayor Likely to Refer Utah's Stay Request to Full Supreme Court

UPDATED-See end of post

Mon. AM: Keeping an eye on #SCOTUS to see if any movement on Utah's #SSM request. Expecting Sotomayor to refer to full court, but we'll see.
— Michelle Olsen (@AppellateDaily) January 6, 2014

...If she denies, Utah could renew its request to "any other Justice," under #SCOTUS Rule 22.4.
— Michelle Olsen (@AppellateDaily) January 6, 2014

...Another reason referring to the full Court is likely. Denying just passes the buck to another justice. If UT can pick, my $ is on Scalia.
— Michelle Olsen (@AppellateDaily) January 6, 2014

...Would Sotomayor rather pass to the full Court or Scalia on this issue? Again, I think full Court is likely.
— Michelle Olsen (@AppellateDaily) January 6, 2014

The importance of the same-sex marriage issue also makes it likely that Justice Sotomayor will refer Utah's stay request to the full Court.

Update from Adam Charnes, who clerked for Justice Kennedy:

@AppellateDaily By tradition, if 1 justice denies and it is resubmitted to a 2nd justice, the 2nd justice refers it to the entire Court
— Adam Charnes (@AdamCharnes) January 6, 2014

This tradition is one more reason Justice Sotomayor will likely refer the request to the full Court. Why add paperwork when the request will probably end up with the full Court anyway?

Second Update: Justice Sotomayor referred the matter to the full Court, which granted the stay (here).

Third Update:

Re discussion earlier today on #SCOTUS apps, example of tradition bucked (2nd justice didn't refer to Ct) via @EQCF http://t.co/Yf7pD4FCW2
— Michelle Olsen (@AppellateDaily) January 7, 2014

SCOTUS Shows Interest in Two Rehearing Petitions

Petitions for rehearing at the U.S. Supreme Court are almost always a waste of time, money, and paper.

They are denial, the first stage of grief, in writing: "Look, I know you just decided against me. But, did you really read my brief? Take a look at the same arguments in this petition. This time I used more italics." For such petitions, there is a special graveyard reserved near the end of Supreme Court order lists, known as "Rehearings Denied."

Given the long odds, it was surprising today to see the Supreme Court requesting a response to not just one, but two rehearing petitions in Smith v. Florida (09-10755) and Addison v. New Hampshire (10-8527). While a response request does not guarantee rehearing, it is an essential first step, in most cases.

As Court Rule 44.3 states, "The Clerk will not file any response to a petition for rehearing unless the Court requests a response. In the absence of extraordinary circumstances, the Court will not grant a petition for rehearing without first requesting a response."

Responses are due November 2.

FRAP Amendments Effective Today

Various amendments to the Federal Rules of Appellate Procedure go into effect today. For more detail, particularly on the amendment related to amicus briefs, please see this prior Appellate Daily post.

FRAP Amendment-Amicus Briefs

The Supreme Court recently approved an amendment to Federal Rule of Appellate Procedure 29 (amicus briefs), which will go into effect December 1, 2010, unless Congress legislates otherwise.