Application for stay of District Court's order enjoining Defense
Department officials from "participating in any way in military
activities in or over Cambodia or releasing any bombs which may
fall in Cambodia," the only order extant in this litigation in view
of MR. JUSTICE DOUGLAS' order vacating Court of Appeals' stay of
District Court order, ante
p. 414 U. S. 1316
granted by MR. JUSTICE MARSHALL, pending further order of this
Court. BURGER, C.J., and BRENNAN, STEWART, WHITE, BLACKMUN, POWELL,
and REHNQUIST, JJ., agree with this action.
MR. JUSTICE MARSHALL, Circuit Justice.
On August 1, 1973, I, as Circuit Justice for the Second Circuit,
denied an application to vacate a stay entered by the United States
Court of Appeals for the Second Circuit on July 27, 1973, staying
the order of the District Court for the Eastern District of New
York dated July 25, 1973.
On August 2, Elizabeth Holtzman and others, plaintiffs in the
original action, presented an application to MR. JUSTICE DOUGLAS. A
hearing was then set in Yakima, Washington, on Friday, August 3. On
August 3, an order was issued by MR. JUSTICE DOUGLAS vacating the
stay entered by the Court of Appeals on July 27, 1973, and thereby
reinstating the order of the United States District Court for the
Eastern District of New York.
On August 4, the Solicitor General presented an application for
a stay of the order of the United States District Court for the
Eastern District of New York.
Since the action of the Court of Appeals in granting a stay is
set aside, the only order extant in this case is
Page 414 U. S. 1322
the order of the District Court dated July 25, 1973. The instant
application calls on me to deal directly with that order of the
In the ordinary course, a Justice acting as a Circuit Justice
would defer acting with respect to a District Court order until the
Court of Appeals had acted, but, in the present circumstances, the
Court of Appeals has already acted, and the consequence of the
order of Mr. JUSTICE DOUGLAS is to set aside the Court of Appeals
The consequence of the Court of Appeals' stay order of August 1,
1973, was to preserve the status quo
until it could act on
the merits. The Court of Appeals, having originally expedited a
hearing on the merits to August 13, 1973, has since further
expedited the hearing on the merits to August 8, 1973.
Now, therefore, the order of the District Court dated July 25,
1973, is hereby stayed pending further order by this Court.
I have been in communication with the other Members of the
Court, and THE CHIEF JUSTICE, MR. JUSTICE BRENNAN, MR. JUSTICE
STEWART, MR. JUSTICE WHITE, MR. JUSTICE BLACKMUN, MR. JUSTICE
POWELL, and MR. JUSTICE REHNQUIST agree with this action.
MR. JUSTICE DOUGLAS, dissenting.
The order I entered August 3, 1973, in Holtzman v.
not only vacated the stay of the Court of Appeals,
but also reinstated the judgment of the District Court. I mailed it
on August 3, 1973, and reported its contents to the Clerk's office.
My order of August 3, 1973, reads as follows:
"On application of petitioners and after oral argument, it is
"(1) that the stay of the District Court's order
Page 414 U. S. 1323
entered by the Court of Appeals on July 27, 1973 is vacated,
"(2) that the order of the District Court of July 25, 1973,
enjoining Defendants from participating in any way in military
activities in or over Cambodia or releasing any bombs which may
fall on Cambodia is hereby restored."
W. O. Douglas
"August 3, 1973."
My Brother MARSHALL, in his opinion of August 4, 1973, misstates
the facts when he says that "the only order extant in this case is
the order of the District Court." A correct statement would be that
the most recent order in this case was my order of August 3, 1973,
reinstating the order of the District Court, which would thus leave
the Court of Appeals free to act on the merits and give full relief
or, alternatively, permit this Court to reverse me. Under my
Brother MARSHALL's order of August 4, 1973, only this Court can act
to give injunctive relief. [Footnote 1
The Court has unquestioned power to reverse me, and, although I
disagree with the Court's action on the merits, that is not the
point of this dissent. If we who impose law and order are ourselves
to be bound by law and order, we can act as a Court only when at
least six of us are present. That is the requirement of the Act of
Congress, [Footnote 2
heretofore it has been the practice to summon the Court to Special
telephone calls cannot, with all respect,
be a lawful substitute. A Conference
Page 414 U. S. 1324
brings us all together; views are exchanged; briefs are studied;
oral argument by counsel for each side is customarily required. But
even without participation, the Court always acts in Conference,
and therefore responsibly.
Those of the Brethren out of Washington, D.C. on August 4, 1973,
could not possibly have studied my opinion in this case. For,
although I wrote it late on August 3, it was not released until
9:30 a.m. on August 4; and, before 3 p.m., August 4, I was advised
by telephone that eight Members of the Court disagreed with me. The
issue tendered in the case was not frivolous; the Government on
oral argument conceded as much. It involved a new point of law
never yet resolved by the Court. I have participated for enough
years in Conferences to realize that profound changes are made
among the Brethren once their minds are allowed to explore a
problem in depth. Yet there were only a few of the Brethren who saw
my opinion before they took contrary action.
Whatever may be said on the merits, I am firmly convinced that
the telephonic disposition of this grave and crucial constitutional
issue is not permissible. I do not speak of social propriety. It is
a matter of law and order involving high principles. The principles
are that the Court is a deliberative body that acts only on
reasoned bases after full consideration, and that it is as much
bound by the law of the land as is he who lives in the ghetto or in
the big white house on the hill. With all respect, I think the
Court has slighted that law. The shortcut it has taken today surely
flouts an Act of Congress providing for a necessary quorum. A
Gallup Poll type of inquiry of widely scattered Justices is, I
think, a subversion of the regime under which I thought we
One Justice who grants bail, issues a stay of a mandate, or
issues a certificate of probable cause cannot, under the
Page 414 U. S. 1325
statutory regime designed by Congress vacate, modify, or reverse
what another Justice does. [Footnote 3
] The Court, of course, can do so -- and only
the Court [Footnote 4
] -- but,
when the Court acts, it must have six Members present.
Page 414 U. S. 1326
Under the law as it is written, the order of MR. JUSTICE
MARSHALL of August 4, 1973, will, in time, be reversed by that
Higher Court which invariably sits in judgment on the decisions of
this Court. The order of August 4, 1973, in this case would be
valid only if we had the power to agree by telephone that the rules
framed by Congress to govern our procedures should be altered. We
have no such power. What Members of the Court told Brother MARSHALL
to do on August 4, 1973, does not, with all respect, conform with
our ground rules. It may have been done inadvertently, but it is
nonetheless not a lawful order. Therefore, I respectfully
The Court takes a bite out of the merits, for the order of
August 4, 1973, bars the Court of Appeals from reinstating the
judgment of the District Court until and unless this Court acts, as
the order states that the order of the District Court "is hereby
stayed pending further order by this Court."
"The Supreme Court of the United States shall consist of a Chief
Justice of the United States and eight associate justices, any six
of whom shall constitute a quorum."
28 U.S.C. § 1.
The statutes authorizing individual Justices of this Court to
affirmatively grant applications for such actions do not authorize
them to rescind affirmative action taken by another Justice.
28 U.S.C. § 2101(f) (stays of mandate); 28
U.S.C. § 2241(a) (writs of habeas corpus); 18 U.S.C. § 3141 and
Fed.Rule Crim.Proc. 46(a)(2) (granting of bail).
This requirement of collegial action is confirmed by the Rules
of this Court and by this Court's prior decisions and
Rules 50 and 51 govern the in-chambers practices of the Court.
Rule 50(5) provides that, when one Justice denies an application
made to him, the party who has made the unsuccessful application
may renew it to any other Justice. It was pursuant to this Rule
that application for the stay in this case was made to me. But
neither Rule 50 nor Rule 51 authorizes a party, once a stay has
been granted, to contest that action before another individual
The Court has previously deemed it necessary and proper to meet
together in Special Term before stays granted by an individual
Justice out of Term could be overturned. In Rosenberg v. United
States, 346 U. S. 273
full Court felt constrained to consider its power to vacate a stay
issued by an individual Justice, finally resting that power on the
Court's position -- as a body -- as final interpreter of the
"We turn next to a consideration of our power to decide, in this
proceeding, the question preserved by the stay. It is true that the
full Court has made no practice of vacating stays issued by single
Justices, although it has entertained motions for such relief. But
reference to this practice does not prove the nonexistence of the
power; it only demonstrates that the circumstances must be unusual
before the Court, in its discretion, will exercise its power."
"The power which we exercised in this case derives from this
Court's role as the final forum to render the ultimate answer to
the question which was preserved by the stay."
"* * * *"
". . . [T]he reasons for refusing, as a matter of practice, to
vacate stays issued by single Justices are obvious enough.
Ordinarily, the stays of individual Justices should stand until the
grounds upon which they have issued can be reviewed through regular
"In this case, however, we deemed it proper and necessary to
convene the Court to consider the Attorney General's urgent
at 346 U. S.
-287 (footnote omitted).
Finally, it is our procedure during a Term of Court to take an
application that has already been denied or acted upon by one of
the Justices to the entire Court upon an application made by the
opposing side, so that the entire Court can act and thus prevent
"shopping around." That course is not possible during recess, when
the Justices are scattered around the country and throughout the
world. Therefore, it has been my practice if I grant a stay during
recess to make that stay effective only until the Court convenes in
October. This course could not be followed in the instant case,
because, after August 15, 1973, the case will be moot.