This is a significant development. It means that Justice Scalia did not deny the State’s request for a stay (nor did he grant it). He has asked the plaintiffs to respond by 4 p.m. on Thursday. It will take five justices, Scalia included, to grant a stay. I spoke earlier with General Abbott about the state’s strategy in the redistricting case. Abbott conceded that, in normal circumstances, the granting of a stay “is not a high probability event.” However, he says that certain aspects of the case–particularly language in the dissent by Judge Jerry Smith of the Fifth Circuit–could tip the case in the State’s favor. The comments below are from my conversation with Abbott. Smith “openly urged the Supreme Court to grant a stay.” To this point in the case, “no court has made a finding or issued an order that has found the map(s) to violate any law in any way.” A lower court cannot overturn or issue a remedy without concluding that a wrong occurred. The state should get a remand from the Supreme Court to the trial court. The trial court cannot create a map out of whole cloth without a finding that something wrong occurred. The trial court dictated a remedy without finding any violation of the law, therefore usurping the will of the legislature.
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