On Dec 8 2020 the US Supreme Court denies Sen. Mike Lee's emergency application for injunctive relief to vacate the Pennsylvania Supreme Court decision on Nov 25 2020.

The US Supreme Court order to deny the application comes as "Order in pending case" containing one sentence:

The application for injunctive relief presented to Justice Alito and by him referred to the Court is denied.

This denial was reported by NPR, Wall Street Journal and CNN without specifying any details on HOW the decision was arrived at, whether all 9 justices voted, or whether the order itself implies a unanimous consent.

For example, NPR only added:

... said the court's one-sentence order, which did not suggest any dissent among the nine justices.

while WSJ only noted:

The U.S. Supreme Court’s order came shortly after it finished receiving written legal arguments from the parties on Tuesday afternoon.

and CNN noted:

Tuesday's one-line order was issued with no noted dissents or comment from any of the nine justices.

The Question: What is the official procedure / process that the US Supreme Court uses to deny an emergency application for injunctive relief like this? Do all 9 justices required to vote? Do other denials contain more details of the voting result in the order?


1 Answer 1


Such an order, like all other orders and decisions, is voted on at a conference of justices. Normally all 9 are present and vote, unless one or more is recused. But if one or more happens to be absent, those present vote. A majority of those present an voting is enough for such an order. Dissents from such orders are quite unusual, but any justice may file one if s/he so elects.

Reasons for such orders are not normally provided. The usual standard is that such relief is only granted if A) one party will be irreparably harmed by delay, and B) that party has a reasonable likelihood of prevailing on the merits when the matter is finally decided. Presumably a majority of the Justices did not feel that this standard was met. Beyond that, no one can say.

  • 1
    It’s not a majority. Only four votes are needed.
    – A.fm.
    Dec 9, 2020 at 1:52
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    @A.fm. I know that only four votes are needed to grant cert, but I thought an injunction needed a majority. I will need to check unless you have a source to cite. Dec 9, 2020 at 1:56
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    @PaulS.Lee One does not usually get to "re-file" in the US, specifically to avoid your very idea of trying to throw everything and the kitchen sink at it until something sticks. The general rule is res judicata: once a particular issue is litigated in a court, it cannot ever be litigated in another or the same court. In limited situations a case may be dismissed without prejudice, in which case this does not apply (but statutes of limitations etc. would). Any attempt to do this same thing over again would have to distinguish itself as being a distinct case. Dec 9, 2020 at 6:17
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    @Paul S. Lee Orders on requests for emergency relief are usually very short, and often do not disclose the votes. If they do not, no one other than teh Justices themselves is usually in formed. Dec 9, 2020 at 14:31
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    @zibadawa Corect in general fore final adjudications. but this was a request for an emergency stay. It is not res judicata and would not havbe been whatever the result. The actual merits could still come before the SC.-- although in this case they might not. Dec 9, 2020 at 14:35

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