Fotheringay-Phipps, are you a lawyer?
I think there is a basic misunderstanding here. The “likelihood of success” test is performed in a vacuum. It doesn’t matter who is hearing the case. What matters is whether there is a reasonable likelihood of a ruling for the petitioner given the facts of the case and existing law, or any good faith arguments made for a modification of existing law.
If SCOTUS has recently considered an identical issue and ruled in opposition to the petitioner’s petition, we can be reasonably comfortable that there is minimal likelihood of success. If there is no law directly on point, the petitioned court has to decide whether a lower court will probably agree with the petitioner’s position. That’s it.
Yes, there is, and it’s the reason already given. You asked a question to the experts in a field. You got the same answer from two of them. Both times you then tried to argue the answer was wrong. Since then, you have done so to two other lawyers.
That does indeed suggest you were not interested in just getting an answer from the experts, instead wanting to have a debate about the subject.
And, FYI, I understood the answer just fine. It is “no.” Judges do not consider what other judges would decide, because they are just judging the merits of the legal argument. The biases or ability of the other judges (or lawyers) is not considered.
The standard of “likelihood of success” is a theoretical one, not a practical one. This makes sense, since the law is full of this. “Preponderance of the evidence” and “beyond a reasonable doubt” aren’t based on what other judges think, either.
The lay interpretation of a phrase is often different from the legal interpretation. That’s another reason to defer to the experts, with their experience.
Interesting article from Volokh on a different but conceptually related matter.
I think one important thing that many people are missing is that “likelihood of success on the merits” encompasses consideration of two different things: The applicable law and relevant facts.
Most people in this thread are focusing on what happens when there is a debatable legal question but well-understood facts (which seems to be what the OP implied). That is the situation in a relatively limited number of cases.
In most where there is a preliminary injunction, however, the law is usually relatively clear, but the facts that will ultimately proved at trial are not fully determined. Typically the court will review some affidavits and exhibits, and maybe have a couple of hours of testimony, before issuing a preliminary injunction, which is well short of the evidence that would be produced after full pre-trial discovery and a trial. If the facts and law make the case seem like a winner (subject to the facts being shown at trial to match those set forth at the injunction hearing) the court will grant a preliminary injunction. In those cases, an appellate court will recognize that the injunction was based on a first-look at incomplete evidence, and decide whether the trial court was justified in its preliminary assessment.
However, what the OP seems to be asking about are cases where either (1) the case has gone to judgment, and the parties are seeking a stay of enforcement of the judgment, or (2) the relevant facts are undisputed, and the issue is the law to be applied. Note that in most post-judgment stay cases, the party seeking the injunction or stay has to post a bond or other security in case the judgment is affirmed.
So, finally getting to the OP’s question, the Second Circuit Court of Appeals (the federal appeals court for New York, Connecticut and Vermont) has an interesting take on it. Instead of stating they are looking only at “likelihood of success on the merits”, their test is: “either a likelihood of success on the merits, or a serious question going to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the plaintiff’s favor.” (cite).
Under this standard, even where the chance of success isn’t precisely “likely,” but there is a very important open question (either legal or factual, or both), and the side seeking the injunction will be very badly hurt (compared to the other side) if the injunction isn’t granted, the court will grant the injunction.
Now, lots of other courts reject this standard in the language of their decisions. However, as a practical matter, judges will consider and balance how likely one party is to succeed and how badly each party will be hurt if the injunction is or isn’t granted in making his or her decision. This occurs both at the trial and appellate level.
In other words, even where the hypothetical appellate judge thinks the case before him or her will ultimately be a loser when the appeal is done (after full briefing and decision), but recognizes that there is a reasonable chance it could go either way, he or she could well grant the injunction or stay to preserve the parties’ positions for the duration of the appeal. This is particularly so where denying the injunction or stay will essentially make the case moot and deprive the appellate court of the opportunity to rule (for example, where a stay of execution is denied, the death of the defendant would moot any appeal of the death sentence). In addition, where there is a legitimate split of views in an appellate court, judges may be willing to grant an injunction or stay in consideration their colleagues interest in allowing the appeal to proceed.
Put more simply, even appellate judges recognize their (or their fellow judges’) minds may be changed after full briefing and argument, and take that into consideration in granting or denying injunction or stay motions.