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.
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.
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.
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.
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.
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.
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 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.
House GOP effort to stop court expansion through constitutional amendment fails (no surprise--no way they would have gotten 2/3). This was largely a political stunt.
But note the opposite story some will seize from this: Attempting (and failing at) an amendment to freeze SCOTUS size highlights to an otherwise-unaware public that the current Constitution is silent as to Court size and thus a new Democratic-controlled Congress can, consistent with the Constitution, alter that size as it wishes.
Don't expect this to happen. But it will be a discussion in the next few years.
The ballroom decision turns a lot on standing, which we will get to later in the semester, so I don't want to throw too much of it at you. But take this away: Standing in this case was at least arguably proper (as the dissent argues) under controlling doctrine allowing standing based on "aesthetic" concerns in environmental cases. One way of reading the ballroom decision is the majority pulling back on that environmental standing. Again, we will come back to this in the Standing section of the class.
But this piece by Prof. Michael Dorf (Cornell) raises a specific problem related to the shadow docket: A court should find the merits prong of the stay inquiry satisfied only if the lower court erred in understanding or applying existing law; a stay decision is not proper where the Court wants to change that law. But it appears that in this case the majority granted the stay because the lower court erred and the government is likely to succeed under what the majority plans/hopes/wants to turn the law into. The plaintiff (at least arguably) had standing under current standing law; the plaintiff does not have standing under a narrow approach to standing law.
The same is true with the firing cases from two years ago. Firing members of the Merit Systems Protection Board was improper under Humphrey's Executor; an injunction stopping those firings should have remained in effect (because the government was unlikely to succeed) until the Court overruled Humphrey's Executor. When the Court granted that stay, everyone knew Humphrey's days were numbered.
Our Constitution Day 2026 program will feature Prof. David Rabban (University of Texas), presenting The First Amendment Law of Academic Freedom. This will be at 12:30 on Tuesday, September 15 in the Large Courtroom.
Class participation points awarded for attendance. Please attend; this is an especially important topic for students in this moment.
Tuesday audio. No class on Monday; enjoy the long weekend.
We will finish Supreme Court. If "final" does not mean "nothing left to do in state court," what has the Court defined it mean? What are the four categories of finality in Cox Broadcasting?
We then move to Courts of Appeals. For Tuesday, prep Structure and Finality. Note GEO as an assigned case; this is the Court's most recent statement on the collateral order doctrine that clarified some things.
