§ 1257

One of our argument cases, which SCOTUS will hear this year, is Suncor Energy v. Cty. Commissioners of Boulder, on the issue of whether § 1257 and Article III allow SCOTUS to review a decision of the Colorado Supreme Court. Here are competing views on the question that might be useful for argument or just for understanding SCOTUS review of state courts.

COD and anonymity

First circuit decision affirming an order denying leave to proceed anonymously and refusing to close a trial. FN 9 explains why both orders are immediately reviewable.

For Tuesday, September 22

Tuesday audio. No class on Monday. I will try to plan make-ups for the two classes (next Monday and Labor Day) that we missed.

Prep and review Interlocutory Orders.

Just in case, District Courts should be ready to go; prep Structure. Then we will really get going with that the following Monday. 

For Tuesday, September 15

Monday audio. SCOTUS papers due at the beginning of class.

Here is FRAP 3 and FRAP 4, for your information.

We pick up with Mohawk--what was wrong with the Court's explanation on the third prong, how else could a party gain review, and how might you distinguish the denial of anonymity. Consider the distinct approaches to the third prong between the majority and Justice Alito.

Prep Interlocutory Orders. As part of that, have a look at this new Order dealing with § 1292(b) certification.

Navy Court of Criminal Appeals Argument

At 9 a.m. on Tuesday, September 29 at St. Thomas. You should be able to make it back in time for class.

We will discuss the military court structure later this month. 

For Monday, Sepetmber 14

Tuesday audio. Supreme Court papers due on Tuesday. Please add ten (10) points to the scores for the papers you just got back--I mistakenly graded out of 40 instead of 50. Sorry.

Prep Finality and Collateral Order. Read GEO carefully; it clarified and confused some things about the collateral order doctrine. Try to parse the differences between the majority and Justice Alito.

We will get to Interlocutory Orders later on Tuesday. 

Information for the Constitution Day program with Prof. Rabban. Pizza, participation points, and a great academic experience will be provided.

Papers

Add 10 points to your paper scores. I forgot that I had upped the value from out of 40 points to out of 50 points. Sorry for the confusion.

Oral Arguments

Order granting certiorari.

We have 17 cases. To manage the load and create shorter days, we will split across two days: Five cases on Wednesday, twelve on Thursday. 

Because we have an odd number in the class, Roberts v. Progressive has only one attorney assigned to argue. I also need a volunteer to judge a second case.

The order identifies the judges and counsel for each case. Between now and early November, you must meet with your co-judge to decide who will be chief and your opposing counsel to decide which side you each will represent.

The first name in the case title is Petitioner (loser below). In one case the issue being reviewed is a cross-petition by the winner below. Several cases are listed twice; distinct attorneys and judges will handle distinct issues.

You may write your reaction paper on these cases (if related to the subject of the class panel) so long as you are not assigned that case as judge or counsel.

Justice Breyer on much of our class so far

H/T: Dov.

 

At 6:50 he begins discussing the shadow docket; at 8:40 arguments for and against writing opinions for decisions on the shadow docket.

At 18:00 they begin an extended discussion on politics and the Court; at 33:10 that topic continues with Justice Breyer mentioning the "the temperature of the day" vs "the climate of the era."

 

The unnecessay rhetoric of judical supremacy

The District of Maryland enjoins the executive branch from enforcing the new anti-birthright citizenship E.O. 

The court explains why the new E.O. violates the 14th Amendment as interpreted in Barbara; good enough. But then see the bottom of p.26:

The Supreme Court has spoken: Children in the certified class are “citizens at birth.” Barbara, 146 S. Ct. at 2450. Barbara is the law of the land. The President must follow it. See Marbury v. Madison, 5 U.S. 137, 178 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”).

I wrote some ideas here. We did not cover a different angle on the judicial supremacy/departmentalism debate: The President (and Congress) must be able to test the scope of judicial precedent by attempting to enact a new law or policy and seeing (via new litigation) whether the courts find the new policy consistent with their constitutional interpretation. The only way to trigger further judicial review is by enacting and enforcing a new policy, triggering new litigation challenging that policy.

And this is non-partisan. President Trump, the Court having declared invalid his initial broad anti-birthright-citizenship E.O., can attempt a scaled-back effort to limit birthright citizenship and see what the courts do. Similarly, President Biden, the Court having declared invalid his attempt to forgive student loans under one law, could attempt a smaller effort under a different law and see what the courts do (they declared the second effort invalid). But any President must have room to try.