In full, the Ninth Circuit’s order granting the stay of the vacation-of-Prop-8 holding in Perry v. Schwarzenegger reads:
Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal.
This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED.
We can read tea leaves into this all day and all night. The grant of stay, does that indicate that the appellants demonstrated a probability of success on the merits? If so, based on what? When their standing is called into question by the order itself, how can there possibly be a probability of success on the merits? Why the very expedited briefing schedule? (My last ninth circuit case had a fifteen-month calendar to cover the same period this order sets out in four.) Why phrase the standing issue in the form of an order to show cause?
The fact is the motion panel on the Ninth Circuit did not explain its reasoning. The big caution I’d offer here, to people rooting for either side of the issue, is that the motion panel that made this decision is likely not going to be the same judges as the merits panel — and the merits panel may not count for much either, since the case is almost certainly destined for en banc review.