Former Governor McDonnell & the U.S. Supreme Court... What are the odds?
In recent years the Supreme Court of the United States (SCOTUS) has granted only 1-4% of the petitions for certiorari (ie; to grant a hearing). Currently, a decision is pending in the case of the United States v. Robert McDonnell. What does a 96% failure rate mean for McDonnell's case? According to a very reliable source, not much.
I'll explain why in this blog,
I will reveal my “reliable source.”
Each case is truly unique and is judged on it's own merits. When I looked at the factors that the McDonnell case presents, there were four little words that tipped the scale.
McDonnell’s primary issues are “issues of law” rather than factual issues. Factual issues invariably fail in the appellate courts for many reasons. This factor alone isn’t compelling but it’s worth mentioning since the 96% failure rate includes cases with purely factual issues that never had a chance from the start.
One of McDonnell’s primary arguments involves the instruction given to the jury regarding the definition of “official acts.” Since the jury relied on that definition for each of his corruption convictions, a successful argument on that issue could mean reversal of the decision below. This is an important factor because it shows the impact that the issue could have on the case.
Incidentally, if he had been convicted of making a false statement on a bank loan application, his fate would likely not turn on this legal issue and it would be a different story. This is only conjecture however because he was found not guilty of those counts.
McDonnell argues that three Circuits in the United States are in conflict with the 4th Circuit (where he was convicted & where Virginia is situated). The federal courts are divided into 12 regions (ie; Circuits). The SCOTUS is more likely to hear a case when:
a. there’s an “important federal question” and/or;
b. if one Circuit is in conflict with another.
This is clearly helpful to him. The government will likely argue to distinguish McDonnell’s case from the others to establish that they’re not in conflict. The Court may ultimately agree with the government, but for purposes of meeting the threshold to have the case heard, this argument is important for McDonnell to get his foot in the door.
Most telling is this. The Court granted McDonnell’s petition to stay the mandate from the Fourth Circuit Court of Appeals which resulted in McDonnell remaining on bond. This appears to be unprecedented, at least in recent years. In his application requesting the stay, McDonnell noted that a single Justice has the authority to grant an emergency stay so long as there's a “reasonable probability” that the Court will hear the case. Obviously his hope was to convince a single Justice that there was a "reasonable probability" that they would hear the case and consequently keep him on bond. He made the application to the Chief Justice and the stay was granted. There are four important words in the first line of the Order entered on August 31, 2015:
“The application for stay of the mandate presented to The Chief Justice and by him referred to the court [emphasis added] is granted, and the issuance of the mandate of the United States Court of Appeals for the Fourth Circuit in case no. 15-4019 is stayed pending the timely filing and disposition of a petition for a writ of certiorari.”
McDonnell was correct that an emergency stay can be granted by a single Justice. But the Rules of the Supreme Court also establish a process for a stay to be issued by the Court. When it's issued by the Court, there must be a vote of five (5) of the nine (9) Justices. The four little words “referred to the court” suggest that there was a vote from five Justices, not just one.
Fifteen (15) years ago, the Supreme Court granted a stay of the mandate from the Florida Supreme Court in the case of George W. Bush, et al. v. Albert Gore, Jr. et al. In that opinion, Justice Scalia made note of the following, "It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success."
Similarly here, if five (5) Justices found that there was a reasonable probability that this Court will grant certiorari, then how many votes are required to actually grant certiorari?
… so there’s my reliable source; the Court Order.