If so, I would guess that this question--of whether a stay of the judgment pending appeal should be entered--will get to the Supreme Court no matter what. After writing the post last night, I realized that, even if the District Court or the Eleventh Circuit grants the stay, the plaintiff states will be able to appeal that ruling to the Supreme Court. And why wouldn't they? It would only mean more media coverage for their efforts. So, assuming the DOJ seeks a stay--again, I do not know whether it needs one--then I think this matter is headed to the Court.
One other point: if the lower court grants a stay, and the Supreme Court decides to let that stay remain in place, that will not signal much. That is not a whole lot different from a denial of certiorari. If the lower courts have denied the stay, and it is the United States that comes to the Court seeking one, what the Court does will say much more. Either it will be denying the request of the Solicitor General merely to allow the constitutional provisions of the Act to be implemented pending the ultimate resolution of the constitutionality of the individual mandate, or it will be reaching down to grant a stay when it was denied by the lower courts. Either of these would be a decent signal--although obviously not dispositive--of what the justices think of the states' claims on the merits.
All very interesting.
