Rostker v. Goldberg, A-70

Decision Date19 July 1980
Docket NumberNo. A-70,A-70
Citation448 U.S. 1306,101 S.Ct. 1,65 L.Ed.2d 1098
PartiesBernard ROSTKER, Director of Selective Service et al., Applicants, v. Robert L. GOLDBERG et al
CourtU.S. Supreme Court

See 449 U.S. 1009, 101 S.Ct. 563.

Mr. Justice BRENNAN, Circuit Justice.

This is an application for a stay pending review on appeal of the July 18, 1980, order of a three-judge District Court for the Eastern District of Pennsylvania invalidating the registration provisions of the Military Selective Service Act, 50 U.S.C.App. § 451 et seq., and enjoining the Government from enforcing them.1 At stake are the Government's plans to register more than four million males born in 1960 and 1961 in the two weeks commencing on July 21.

The District Court concluded that the exclusion of females from the registration provisions constitutes gender-based discrimination and that the federal parties had failed to demonstrate that the exclusion was substantially related to an important governmental interest. Accordingly, it found the provisions violative of the equal protection component of the Fifth Amendment. The applicants, Bernard Rostker, Director of Selective Service et al., urge both that the District Court applied too strict a standard of scrutiny in light of the national defense interests at stake, and that even under the standard which that court applied the decision not to include females could be justified. Beyond that, the applicants contend that the Government will suffer irreparable injury if it is not permitted to go forward with implementation of the President's July 21 through August 2 call for draft registration, while respondents-a class including persons required to register within the next two weeks-will suffer only minor and remediable harms should I decide to stay the District Court's injunction. Respondents submit that the three-judge court properly decided the constitutional question before it, that its injunction was proper, and that its subsequent decision to deny a stay of that injunction was likewise appropriate.

The principles that control a Circuit Justice's consideration of in-chambers stay applications are well established. Relief from a single Justice is appropriate only in those extraordinary cases where the applicant is able to rebut the presumption that the decisions below-both on the merits and on the proper interim disposition of the case-are correct. Whalen v. Roe, 423 U.S. 1313, 1316-1317, 96 S.Ct. 164, 165-166, 46 L.Ed.2d 18 (1975) (Marshall, J., in chambers). In a case like the present one, this can be accomplished only if a four-part showing is made. First, it must be established that there is a "reasonable probability" that four Justices will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction, Graves v. Barnes, 405 U.S. 1201, 1203-1204, 92 S.Ct. 752, 753-754, 30 L.Ed.2d 769 (1972) (POWELL, J., in chambers); Mahan v. Howell, 404 U.S. 1201, 1202, 92 S.Ct. 1, 2, 30 L.Ed.2d 5 (1971) (Black, J., in chambers). Second, the applicant must persuade me that there is a fair prospect that a majority of the Court will conclude that the decision below was erroneous. While related to the first inquiry, this question may involve somewhat different considerations, especially in cases presented on direct appeal. Times-Picayune Publishing Corp. v. Schulingkamp, 419 U.S. 1301, 1305, 95 S.Ct. 1, 3, 42 L.Ed.2d 17 (1974) (POWELL, J., in chambers); Graves v. Barnes, supra, 405 U.S., at 1203-1204, 92 S.Ct., at 753-754. Third, there must be a demonstration that irreparable harm is likely to result from the denial of a stay. Whalen v. Roe, supra, 423 U.S., at 1316, 96 S.Ct., at 165; Graves v. Barnes, supra, 405 U.S., at 1203, 93 S.Ct., at 753. And fourth, in a close case it may be appropriate to "balance the equities"-to explore the relative harms to applicant and respondent, as well as the interests of the public at large. Cf. Holtzman v. Schlesinger, 414 U.S. 1304, 1308-1309, 94 S.Ct. 1, 4, 38 L.Ed.2d 18 (1973) (MARSHALL, J. in chambers) (citing cases); Republican Committee v. Ripon Society, 409 U.S. 1222, 1224, 93 S.Ct. 1475, 1477, 34 L.Ed.2d 717 (1972) (REHNQUIST, J., in chambers).

That the first prong of this test is satisfied is undeniable. The importance of the question and the substantiality of the constitutional issues are beyond cavil. The second prong is more troubling. In my judgment the case is a difficult and perplexing one. My task, however, is not to determine my own view on the merits, but rather to determine the prospect of reversal by this Court as a whole. In the past, the standard of review to be applied in gender-based discrimination cases has been a subject of considerable debate, compare Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975), with Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). And my Brethren's application of the standard upon which we have finally settled in a context as sensitive as that before me cannot be predicted with anything approaching certainty. Nonetheless, it does seem to me that the prospects of reversal can be characterized as "fair." I therefore turn to the interrelated inquiries that make up the third and fourth prongs of the approach set forth above.

The applicants identify three distinct injuries that the United States would sustain if the District Court's order were to remain in force and this Court were then to uphold the Selective Service Act. First, during the life of the District Court's injunction, the United States is barred from instituting registration without time-consuming congressional action, even in the face of a clear and present threat to national security. Accordingly, the Nation's military capability to respond to emergencies would remain uncertain until the full Court completes review of the ruling below.2 See Affidavit of W. Graham Claytor, Deputy Secretary of Defense, at 2 (July 16, 1980); Affidavit of Bernard Rostker, Director of Selective Service, at 2 (July 15, 1980). Second, the inauguration of registration by the President and the Congress was not merely a predicate to possible future conscription. It was an act of independent foreign...

To continue reading

Request your trial
44 cases
  • Morgan v. Foretich
    • United States
    • D.C. Court of Appeals
    • August 21, 1989
    ...as a Circuit Justice, granted a stay of the Maryland order on the ground that all four criteria in Rostker Goldberg, 448 U.S. 1306, 1308, 101 S.Ct. 1, 2, 65 L.Ed.2d 1098 (1979), were met. In particular, the Chief Justice concluded that the fifth amendment issue was an "important question" w......
  • Rostker v. Goldberg, 80-251
    • United States
    • U.S. Supreme Court
    • June 25, 1981
    ...as Circuit Justice for the Third Circuit, stayed the District Court's order enjoining commencement of registration. 448 U.S. 1306, 101 S.Ct. 1, 65 L.Ed.2d 1098. Registration began the next Monday. On December 1, 1980, we noted probable jurisdiction. 449 U.S. 1009, 101 S.Ct. 563, 66 L.Ed.2d ......
  • Messer v. Kemp
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • October 16, 1987
    ...of the case," R. Stern, E. Gressman & S. Shapiro, Supreme Court Practice Sec. 17.19 (6th ed. 1986) (citing Rostker v. Goldberg, 448 U.S. 1306, 1308, 101 S.Ct. 1, 2, 65 L.Ed.2d 1098 (Brennan, Circuit Justice 1980)), it is not a merits decision. We therefore conclude that the Supreme Court's ......
  • Hollingsworth v. Perry
    • United States
    • U.S. Supreme Court
    • January 13, 2010
    ...486 U.S. 1301, 1304, 108 S.Ct. 1763, 100 L.Ed.2d 589 (1988) (KENNEDY, J., in chambers); Rostker v. Goldberg, 448 U.S. 1306, 1308, 101 S.Ct. 1, 65 L.Ed.2d 1098 (1980) (Brennan, J., in chambers). To obtain a stay pending the filing and disposition of a petition for a writ of mandamus, an appl......
  • Request a trial to view additional results
2 books & journal articles
  • THE PRECEDENTIAL EFFECTS OF THE SUPREME COURT'S EMERGENCY STAYS.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 44 No. 3, June 2021
    • June 22, 2021
    ...535 U.S. 1301, 1304 (2002) (Rehnquist, C.J., opinion in chambers) (quoting Whalen, 423 U.S. at 1316); see also Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., opinion in chambers) (calling it "well established" that " [r]elief from a single Justice is appropriate only in those......
  • Practice Before the Supreme Court of the United States
    • United States
    • Kansas Bar Association KBA Bar Journal No. 64-04, April 1995
    • Invalid date
    ...Court Practice 636-645. [FN68]. See Sup. Ct. R. 23.3. [FN69]. Sup. Ct. R. 22.4. [FN70]. Sup. Ct. R. 23.3. [FN71]. Rostker v. Goldberg, 448 U.S. 1306, 101 S. Ct. 1, 65 L.Ed.2d 1098 (1980); Barefoot v. Estelle, 463 U.S. 880, 103 S. Ct. 3383, 77 L.Ed.2d 1090 (1983). [FN72]. See, e.g., Cole v. ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT