Rick Hasen, whose Election Law blog provides excellent information--albeit from a liberal viewpoint--reports that Judge Thomas has requested the parties to submit briefs by 2 p.m. PDT tomorrow discussing whether this case should be heard by an 11 judge panel of the Ninth Circuit. This does not prevent the parties from seeking a stay of the order from Justice O’Connor, who is the circuit justice, or from asking the U.S. Supreme Court to review the case. Anyone who doubts the capacity of the Supremes to take a case away from an en banc court need look no further than last year’s University of Michgan case, in which the Supreme Court decided to hear the undergrad case while a decision was pending before an en banc panel of the Sixth Circuit Court of Appeals.
That said, I will offer a couple of predictions. One, the Supreme Court really doesn’t want to have to deal with this case, so I predict that they will let the Ninth Circuit try to clean up its own mess. Two, the motion for stay which will inevitably be filed with O’Connor will be forwarded to the full court for a poll of all nine justices. She does not need to do so, but it is common practice in these high profile cases. How the court decides the stay issue is not dispositive of how they view the case, but it will provides some interesting tea leaves for court watchers to read.