Jackson, J., dissenting
yet another case, the rule is that the trial court has “authority” during an interlocutory appeal “to take further proceedings in the cause, unless in its discretion it orders them to be stayed, pending the appeal.” Smith v. Vulcan Iron Works, 165 U. S. 518, 525 (1897). That authority is “recognized” by the 1891 Act but existed already as a traditional matter, “often exercised by other courts of chancery.” Ibid.
This was the background against which Congress enacted §16. And—importantly—courts understood stays as discretionary with respect to interlocutory appeals concerning arbitrability. Before Congress enacted §16, parties brought interlocutory arbitrability appeals under other sources of appellate jurisdiction, and courts treated stays as discretionary, not mandatory.[1] Yet, according to the majority, Congress sought to displace that common understanding when it enacted §16—without saying anything at all about stays pending appeal.
Even setting all that aside, the majority opinion’s reliance on a “background” rule, ante, at 3, still fails. The majority has not shown that its own rule (the mandatory-general-stay rule) existed as a background matter when Congress enacted §16 in 1988. Indeed, the majority opinion does not identify a single case in which this Court imposed a mandatory general stay of pre-trial and trial proceedings pending an interlocutory appeal. Not in an arbitration case. Not in an analogous case about the proper adjudicatory forum for a dispute. Not in any interlocutory appeal at all.
- ↑ See, e.g., Pearce v. E. F. Hutton Group, Inc., 828 F. 2d 826, 829 (CADC 1987); Maxum Foundations, Inc. v. Salus Corp., 779 F. 2d 974, 977 (CA4 1985); Matterhorn, Inc. v. NCR Corp., 727 F. 2d 629, 630 (CA7 1984); Lummus Co. v. Commonwealth Oil Refining Co., 273 F. 2d 613, 613–614 (CA1 1959) (per curiam); Bernhardt v. Polygraphic Co. of Am., 235 F. 2d 209, 211 (CA2 1956) (per curiam).
