Jackson, J., dissenting
court and a court of appeals would be simultaneously analyzing the same judgment.” 459 U. S., at 59.
The Court today expands Griggs beyond what the Congress that enacted §16 could have foreseen, let alone silently incorporated. Indeed, the majority can identify no other time this Court wielded Griggs to mandate a stay of all merits proceedings just because a distinct procedural question was on appeal.
In fact, the majority’s supercharged version of Griggs contradicts its own account of Congress’s intent. Consider the statutes that the majority points to as models of how Congress would reject a mandatory-general-stay rule. Ante, at 6–7, and n. 6; see supra, at 4–5. Under those statutes, the majority says, Congress intends that an interlocutory appeal does “not … automatically stay district court proceedings.” Ante, at 7. Yet, the majority also seemingly accepts that under those statutes, “the Griggs principle applies.” Ante, at 5. And per “the Griggs principle” as the majority sees it, in some cases an interlocutory appeal does automatically stay district court proceedings. Ante, at 3–4. So a mandatory general stay is thus both prohibited (by the statutory text) and required (by the majority’s view of Griggs).[1] As this contradiction underscores, the majority’s holding is untethered from any statute and any existing conception of
- ↑ This contradiction arises, for example, under 28 U. S. C. §1292(b), one of the statutes that the majority cites as prohibiting mandatory general stays. See ante, at 7, n. 6 (citing Act of Sept. 2, 1958, Pub. L. 85–919, 72 Stat. 1770 (codified at §1292(b))). Section 1292(b) authorizes permissive interlocutory appeals from a wide range of orders involving “controlling question[s] of law”—including rulings on arbitrability. Arbitrability appeals under §1292(b) were commonplace when Congress enacted 9 U. S. C. §16 in 1988. See, e.g., Danford v. Schwabacher, 488 F. 2d 454, 457 (CA9 1973) (“Since 1958 interlocutory arbitration orders have been reviewable in accordance with the procedures prescribed by 28 U. S. C. §1292(b)”). And in a §1292(b) arbitrability appeal, the majority’s reading of §1292(b) would prohibit a mandatory general stay, while the majority’s view of Griggs would require one.
