A reapplication to stay, pending appeal to the Court of Appeals,
the District Court's decision ordering the busing of students
within the applicant school district is denied.
MR. JUSTICE REHNQUIST.
Applicants have requested me to grant a stay pending appeal to
the Court of Appeals for the Fifth Circuit of a decision by the
District Court ordering the busing of students within the applicant
district. The application, as was proper, was first submitted to
MR. JUSTICE POWELL, the Circuit Justice for the Fifth Circuit, and
denied by him. It has now been resubmitted to me. As indicated by
the cases discussed in the application for stay,
e.g., Columbus
Board of Education v. Penick, 439 U.
S. 1348 (1978), this Court has been divided for a number
of years as to the constitutional propriety of busing orders. If I
were casting my vote as a single Justice of this Court, rather than
as an individual Justice empowered to grant a stay, I would, in all
likelihood, not only vote to grant certiorari in the case if the
Court of Appeals for the Fifth Circuit affirmed it, but would also
give the most serious consideration to voting on the merits to
reverse that decision. However, as has been frequently pointed out,
that is not the role of an individual or Circuit Justice in a case
such as this. That obligation is to determine whether four Justices
would vote to grant certiorari, to balance the so-called "stay
equities," and to give some consideration as to predicting the
final outcome of the case in this Court.
For these reasons, and because MR. JUSTICE POWELL is the Circuit
Justice for the Fifth Circuit, and more familiar with the situation
of any case in it than I could be, I am unwilling to "second-guess"
his own denial of the application in this case. I accordingly deny
the reapplication for a stay.
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