Autre Temps, Même Moeurs? Emergency Stay Practice in the 1960s and Today

Mark Tushnet

I’ve been reading some of the books about civil rights history that I’d accumulated in my office, now shipped to my house. I’d read most in manuscript, but it’s instructive to read the final versions as something like a unit.

In reading Anne Emanuel’s interesting biography of Judge Elbert Parr Tuttle, I was struck by some similarities between the emergency motions practice in the Fifth Circuit during the era of desegregation litigation and current emergency motions practice (mostly in the Supreme Court but to some extent in lower courts). Judge Tuttle and his pro-Brown colleagues often had to deal with obstructionist tactics by district court judges. Emanuel shows how they engaged in what can fairly be called creative interpretations of their statutory authority to issue stays – the most creativity being exercised in connection with stays issued by individual judges (so that they didn’t have to take the time to convene a panel, which might include circuit judges less supportive than they of Brown). She also describes some occasional careful judge-shopping by civil rights plaintiffs (it had to be occasional because in the deep South there weren’t many district court judges who were firmly committed to Brown and its implications).

And there were departures from norms of judicial administration: Judge Tuttle refused to assign segregationist judge Ben Cameron of Mississippi to three-judge courts dealing with Mississippi “race” statutes (as they were described then), contrary to the norm that the circuit judge assigned to a three-judge court would be from the state whose statute was being challenged. Emanuel also describes a brouhaha about how panels in civil rights cases were composed, by judge John R. Brown, in which Brown was charged with manipulating panel assignments to ensure that the panels would come to the “right” – that is, pro-desegregation – decision. The evidence is that Brown did some minor manipulations but that mostly he took advantage of neutral reasons – one judge was getting old and was chronically ill making travel difficult, another didn’t like to travel away from his home base – to assemble “good” panels. I note that in all this Griffin Bell doesn’t come off at all well.

All this was at the circuit level, with the Supreme Court weighing in through per curiam decisions on the merits and granting or denying stays summarily. Today the issues arise mostly at the Supreme Court level, though judge-shopping is common and some of the stay practices at the circuit courts have been controversial. (For me, maybe the most dramatic difference is technological: Lawyers had to have their papers physically typed and sent by car or plane to distant courthouses, rather than filed electronically.)

The similarities, though, are also striking. Then and now the emergency practice seems strongly result-driven, in the sense that judges interpret their procedural authority creatively, seemingly so that they can reach the substantive results they want to reach.

A couple of observations: (1) In neither period, it seems to me, was the judges’ procedural creativity out of bounds (that is, the judges then and now haven’t adopted plainly unreasonable readings of their procedural authority).

(2) There’s a subjective and an objective account of the phenomenon I’ve described: The subjective one is that judges who believe that the stakes are quite high are going to be creative if they need to be. The objective one is that when the stakes are high and lower court judges don’t fully understand that they are, appellate court judges should be creative. I have a pretty strong sense that today’s disagreements about the emergency stay practice are structured around disagreements about whether the conditions for creativity set out in the objective account are present.