Yes: @chrisgeidner--Steve is correct. It's not unprecedented to deny stay when only 4 votes to stay, not grant the underlying petition.https://twitter.com/sjhorowitz/status/807038931246219265 …
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Replying to @danepps @chrisgeidner
Yes. The courtesy fifth wasn't a thing wmeven when I clerked back in the stone ages (06-07). Now if the liberals had voted to grant cert ...
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true even in capital cases?
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In the last capital case of the '06-'07 term, the 4 liberals voted to grant a stay. No courtesy fifth.
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The then-governor of VA, Tim Kaine, entered a stay on his own accord b/c 4 is enough for a cert grant.
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That wasn't generally the practice -- because 4 votes for a stay didn't imply 4 votes for cert.
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Replying to @nicholas_bagley @danepps
Were any of those (was the last one) an 8-justice vote?
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It seems to me that there is a substantive difference there. I get that mathematically it doesn't change things, but it's different, yes?
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I agree. It changes the denominator!
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