*

 This opinion is being initially released in typescript form.

In the

United States Court of Appeals

for the Seventh Circuit

 

No. 01-3448

NAVREET NANDA,

Plaintiff-Appellee,

v.

BOARD OF TRUSTEES OF THE

UNIVERSITY OF ILLINOIS, 

BELLUR PRABHAKAR,

GERALD MOSS, et al., 

Defendants-Appellants.

 

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 C 4757--Rebecca R. Pallmeyer, Judge.

 

ON MOTION TO STAY THE MANDATE

DECEMBER 3, 2002*

 
No. 01-3448 Page 2

RIPPLE,Circuit Judge (in chambers). This matter is before

me on the application of the Trustees of the University of Illinois for

a stay of this court’s mandate pending its petition for a writ of

certiorari to the Supreme Court of the United States. Familiarity

with this court’s opinion in the underlying litigation is presumed.

See Nanda v. Bd. of Trustees of the Univ. of Illinois, 303 F.3d 817

(7th Cir. 2002).

The appropriate judicial inquiry inconsidering an application

such as the one before me today has been set forth on numerous

occasions. A party seeking a stay of mandate pending the filing of

a petition for writ of certiorari must establish that the petition will

present a substantial question and that there is good cause for a

stay. See Fed. R. App. P.41(d)(2)(A). We therefore ask whether the

applicant has a reasonable probability of succeeding on the merits

and whether the applicant will suffer irreparable injury. See

Williams v. Chrans, 50 F.3d 1358, 1360 (7th Cir. 1995) (per curiam).

To demonstrate a reasonable chance of success on the merits,

the applicant must show a reasonable probability that at least four

Justices will vote to grant certiorari and a reasonable possibility

that at least five Justices will vote to reverse the judgment of this

court. This task requires that I view the case from a different

perspective than I ordinarily would take in deciding a case in the

regular course of business. In deciding a case, a circuit judge must

not anticipate future changes in jurisprudential course by the

Supreme Court of the United States; it is the task of a circuit judge

to apply established doctrine. See State Oil Co. v. Kahn, 522 U.S. 3,

20 (1997). The present situation, by contrast, requires that I

perform the predictive function of attempting to determine the

future course of the Supreme Court’s jurisprudence. 

Even taking into account this different perspective, I cannot

say that the University has met its burden. The Supreme Court has
No. 01-3448 Page 3

1

 See, e.g., Trustees of the Univ. of Alabama v. Garrett, 531

U.S. 356 (2001); Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000).

2

 Therefore, this is not a case, such as many of those cited by

the University in support of its motion to stay, which involves or

creates a conflict among the circuits. Cf. United States v. Holland,

1 F.3d 454, 456 (7th Cir. 1993) (in chambers) (“A conflict among the

circuits is an accepted basis for the granting of a writ of certiorari.”).

held that various statutory schemes are infirm because they are not

premised on an appropriate exercise of Congressional power under

Section 5 of the Fourteenth Amendment.

1

 However, my colleagues

and I, after careful study, have concluded that Congress’ exercise of

its legislative power in enacting Title VII is based on far firmer

footing. We have determined that Title VII’s disparate treatment

provision is a legislative measure well-tailored to address the same

sort of intentional discrimination that the Fourteenth Amendment

itself forbids. Like our colleagues in the Eighth Circuit, see

Okruhlik v. Univ. of Arkansas, 255 F.3d 615 (8th Cir. 2001), we also

determined that Congress had ample evidence of discrimination

when it enacted this legislation.2 Indeed, in Varner v. Illinois State

University, 226 F.3d 927 (7th Cir. 2000), cert. denied, 533 U.S. 902

(2001), another panel of this court noted that this well-documented

history of discrimination is embodied in the jurisprudence of the

Supreme Court itself.

Under these circumstances, I cannot say that the Supreme

Court, faced with unanimity among the circuits that have decided

the issue, nevertheless will determine that this case is worthy of a

grant of certiorari. Nor can I say that there is a reasonable

possibility that the Supreme Court ultimately would decide to

reverse the judgment of this court. 
No. 01-3448 Page 4

Accordingly, the application for stay of mandate is denied. 

APPLICATION FOR STAY DENIED