A Seat at the Sitting: The October Docket in 90 Minutes or Less

[Music] [Music] [Music] welcome and thank you for being with us today i'm dean reuter senior vice president and general counsel of the practice groups and the federalist society welcome to the inaugural edition of a seat at the sitting the federal society practice group's preview of the supreme court docket one month at a time washington dc in particular and even the country more generally are filled with u.s supreme court preview panels at this time of year almost always examining the entire term at least to the extent that cases granted are known at the time now though we wanted to offer insight into the court's docket one month at a time for a variety of reasons we'll discuss i want to thank and advance our panelists today we're very pleased to have each and every one of them and i'll introduce them momentarily as we look forward to the october sitting we tried unsuccessfully to recruit other panelists of more traditional progressive views opposing views differing views but we didn't fare so well but i'm sure we'll do better on that front next month now before we begin a reminder to our audience uh that today's session is being recorded and will be posted on the federal society's website and that all expressions of opinion are those of the panelists today we're going to be using the raise hand and the chat function when we get to the audience question portion of the program but first i want to introduce our panelists in the order they're going to make their opening remarks we're going to hear first from sarah harris sarah is a partner at williams and connolly supreme court in appellate practice last term she argued two cases before the supreme court won both of them and again this term is arguing two more cases in the court at least so far maybe more grants pending who knows um she's received lots of recognition for advocacy law 360 named her and appellate mvp bloomberg bloomberg law named her top 40 lawyer under 40. she served in the department of uh justice as the deputy assistant attorney general and in the office of legal counsel and clerked for supreme court justice clarence thomas she'll be followed in opinion mark's opening remarks by kate comfort todd uh who most recently served in government as the deputy white house counsel from 2018 to 2021 she's been a senior vice president for the u.s chamber litigation center before joining the chamber she was again at the white house as an associate counsel to the president uh and before that partner in appellate litigation and communications practices at wiley rhein known for its litigation and communications practice and she also clerked for justice clarence thomas and michael bludig on the fourth circuit our final opening remarks uh will come from jonathan adler he is the inaugural johann verhai memorial professor of law and director of the coleman p burke center for environmental law at case western reserve university school of law that's a mouthful jonathan but he teaches environmental law administrative law constitutional law and he carefully monitors the goings-on at the supreme court uh he's an author his most relevant book for our purposes today his business and the roberts court i recommend it you can barely see it behind him but uh there it is pick up a copy if you can um and he's also a regular contributor to the wallet conspiracy and as we were talking in the pre-call uh originally uh began as juan nonvolik um an anonymous contributor to the bali conspiracy but now well known for his contributions so the october sitting uh i want to start before we turn to cases i want to give uh folks that is our panelists an opportunity to say why are we here why why look at a particular sitting uh one one month of cases uh rather than the the docket as a whole is there something uh hopefully yes to that uh something fruitful and unique about uh picking the court's docket apart in that particular way um kate you want to lead us off there yeah i'm happy to and dean i'm grateful to be included today and i do think it's a really good way to sort of package a discussion in uh a useful way and different as you mentioned this is the season of broader supreme court previews where you're only you're trying to project what's going to happen based on 30 35 grants so far in the term and you're necessarily picking the big ticket cases high profile and focusing on those but you know the justices and their law clerks don't have the luxury of just focusing on the high profile cases um and so really the simple reason i think our simplest reason to be focused on just a sitting at a time is because you're real really in that way mirroring the work stream of the justices themselves they're roughly speaking getting the briefing on these cases at a similar time their law clerks are digging into them at the same time they're having discussions in chambers and whatever discussions they may have across chambers at the same time they're voting on them in proximity to each other and so i think it would be strange if there wasn't necessarily some seepage in the way that the judges justices are conceptualizing the issues from one case to the next and we think that's why you know there are times when you see the justices put multiple cases with the same sort of statutory scheme together even if it's not the same issue or not a similar issue at all um you know i think we saw that for the october term there would have been two section 1782 cases had one not been dismissed and and and i think also for oral argument if you think about it from the perspective of someone preparing to go up and argue their case you're neces you don't know all of the inputs that each justice has what separate research they may be have going on things that they're reading that are outside of the court materials but you know for certain that they're looking into all the other cases of the sitting and so you know any moot that i've ever been in necessarily includes some questions that seem a little bit out of left field for the advocate but are really drawing on things that might be on the justices minds based on the fact they're not just honing in on one case or looking at a collection of cases at one time that's very interesting i want to turn to to jonathan and and sarah in a minute on this same question but let me ask you kate if i could um since you clerked on the court is there a dramatic difference between october for example and later months where uh you know as the court's hearing cases in december presumably you're working on opinions uh from from the october sitting or um there's much more work to do i guess is my question uh how does that sort itself out in later later terms yeah i'm not i i think there are a lot of things that can be said about that i mean one is just sort of in this concept of seepage right that you're necessarily taking something that's fresh on your mind is a legal matter and and it's it's it may be affecting maybe not an ultimate decision but just kind of how you're coming at a later case i mean the term is cumulative right i mean it's also cumulative from term to term of course for the justices and for uh the law clerks who are working there um but but in terms of just intensity of things that are going on in people's minds at the same time and and and and connections they may be drawing that are are really related to the fact they just happen to work on this other case the day before i think it is cumulative and you start having more you know so so cases that they may be writing coming out of the october sitting and they're going to do those as quickly as they can so they can focus on some of the bigger cases we're not going to be talking to today but they're necessarily going to have these multiple work streams in the chambers i mean this is why you know are they going to have you know what you could ask is are they going to have less time to be focused on any one case as the term goes and um you know i think that people just get less sleep and it really is for those who clerked would describe it as you just sort of you know the first day you get a cert petition to review you think it's it's the biggest thing that ever happened and you spend days and you wrestle with it and by the time you're cooking in december you just sort of keep walking deeper and deeper into the water you're writing a decision you're preparing on these big cases you're still fighting about the cases um that you were unhappy about from before and um you know and that cert docket is still continuing to go so it's it's you know and i i what you can't know um you know really is whether a cert petition that plops on somebody's desk that day is going to alter how they're thinking about a current pending case but what you do know you always know is what other cases they're hearing that sitting which is why i think it's a it's a great way to package it yeah interesting sarah or jonathan anything on what's unique about doing this one month at a time one sitting at a time as opposed to the whole term yeah happy to jump in and thanks so much for having me uh one quick correction i am actually counseling two cases not arguing them uh but obviously following the court's docket very very keenly for this term um i think it's great to actually think about how the court schedules things especially in october because it's not just all the things kate said with respect to getting a picture of the cross currents and sort of how the justices and clerks are processing the cases that are sort of front of mind in a particular month but for the fall the court has a lot of leeway in how it sequences the cases in october november and december because they're all granted so far in advance uh and i think the theme of this october is sort of true of some other octobers which is the court sort of can pace itself sort of take cases in october take nine of them get back into the swing of things it's kind of a back to school feeling at the court and not necessarily picking the most controversial cases right out of the gate and they have flexibility not to do that this is sort of a consensus building month a month of um again sort of letting the justices who may not have seen each other as much in person start having those feelings again start building kind of common bonds among the clerks uh and then then sort of diving in perhaps for for cases coming down the pike jonathan your your thoughts on this swirl of issues one thing i would just add is is certainly knowing what occurs in a given sitting certainly helps us make judgments and and try our hand at predictions in terms of what the court might do um the chief justice has followed the the recent tradition of trying to assign majority opinions fairly evenly and as much as possible trying to ensure that each justice has the same number of majority of opinions and generally the same number from each sitting and so having a sense of the range of issues the range of cases in a given sitting does help us get a sense of where the court might be going on on certain cases um if if a justice got a big case in one sitting and they may be less likely to have a big case in the next um as the opinions start to come out knowing what cases were argued in the same sitting can help us get a sense of why certain cases may be taking more taking longer than others um the last thing or the other thing i'll note about why i think it's useful to have this sort of program is as you mentioned dean you know everyone's having the the supreme court term preview and all of those previews tend to focus on the same three or four cases that tend to suck all the air out of the room and it's not that those cases aren't important i mean of course we care about the abortion case we care about the gun case and so on um but i think that that focus on a handful of cases that are high profile that are the front-page news cases tends to obscure some of the other work the court does in going term by term or sorry sitting by sitting creates the opportunity to really look more closely at the work the court is doing um the sorts of questions that the court is dealing with in terms of statutory interpretation or what sorts of relief to offer and the like and really allows you to get a better sense of the full range of of what the court is considering and what it's going to do in a given term uh for our two other experts i i want to turn to the cases momentarily but before i do that on the issue of uh assigning cases so they're even over the term but also even within a sitting is that done to the extent there's an answer to this i don't know but is that done out of respect and fairness or is that done to even the workload for everybody or is that just the way it's done i i have no personal knowledge of uh how exactly the chief or the justice and the majority would apply that sort of that sort of calculus but i do feel like all of the things you said are definitely strong explanations um if you look over time it certainly seems like the workload in particular balances out among different justices and that makes sense because whatever else happens you know that the court has to finish its work by the end of the term yeah i have i have no insider information on that either and you know i think it's actually a good uh point to be able to make because uh we spend a lot of time talking about law clerks when we talk about the supreme court and the reality is you know we've never been inside of that conference room interesting great um so let's turn to the cases um we're going to hear opening remarks on uh select cases from each of our panelists in the order i introduced them sarah harris then kate todd and then uh jonathan adler sarah turn to you and if you could just lay out your cases and and your thinking on them sure so fortuitously both of my cases will be argued on october 2nd so if you are interested in these cases you should totally block out your warning uh and just listen it but the first one i'm going to talk about is thompson versus clark which actually was not meant to be an october case of all servertronics versus rolls-royce which is the case about arbitration discovery was removed for a stipulated dismissal the court had a gap it juggled around his calendar and thompson versus clark was the lucky winner to get moved around uh up from november presumably so that there was still nine so the question presented in this case i think makes it my candidate for like this sleeper case of the october sitting because it sounds unbelievably narrow but actually turns out to be pretty important so the question is there is an existing rule that a plaintiff must await favorable termination i.e they wrote some sort of favorable resolution of their suit before bringing a 1983 action alleging unreasonable seizure pursuant to legal process basically if you're prosecuted for something you need a sort of favorable some sort of favorable outcome before you sue the government for saying maliciously prosecuting you the question here is how do you know that there is termination does the plaintiff have to show that the criminal proceeding against him has formally ended in a manner not inconsistent with his innocence which is what the 11th circuit had said or do you have to show the proceeding ended in a manner that he affirmatively indicates innocence so again like that sounds super super narrow and may be semantic and it turns out it is not remotely semantic because most cases that end with sort of quote unquote favorable termination the facts are similar to this case which is summon is prosecuted um it turns out the prosecution was not well-founded uh the person has various constitutional claims astounding in fourth amendment excessive force uh wrongful rest etc etc but they all boiled down to the idea the government had no business prosecuting me and so i'm going to sue the state officials under section 1983 and the way the prosecutions usually get dropped is that a district attorney will simply sort of stipulate to dismiss all the charges without obviously seeing much more uh so there's no sort of like statement that says just kidding you're 100 innocent it's more like we're dropping this one and under the second circuit's approach the we're just dropping this one is not going to be good enough to meet its standard so you would not be able to file a 1983 suit in the second circuit whereas a manner not inconsistent with innocence you'd be okay so that's kind of why it's important and another clue that it's actually despite the narrow sounding question quite important is that this case i think has almost more amicus briefs than all of the other cases the sitting totaled but there are 13 amiki for the petitioner who is the um who is the who is the plaintiff trying to file his 1983 suit and then uh including the united states and there are two amiki for respondent um the district attorney's office and the amiki in support of the petitioner also span the ideological spectrum you have alliance defending freedom in support of a homeschooling group which has an interest in this issue because it comes up quite often from child welfare investigations that may turn out to be unfounded and then you also have the aclu the ncn8 naacp and a lot of other groups uh favoring criminal justice reform types so kind of interesting case um the basic thing you need to know about 1983 before i get a little more into this is that it's a statute that incorporates the common law so it's an active night in 1871 the rule is to figure out what the contours are of 1983 you need to find a common lot torch that most closely resembles a constitutional claimant issue and then just use the contours of that torch to figure out what kind of guardrails 1983 has so here petitioner is saying i've got a malicious prosecution claim essentially which means again that i'm suing state officials for an arrest that prompted an unfounded prosecution terminating in my favor and the rest of petitioner's brief is sort of saying well given that it's malicious prosecution the rule at common law and there's a lot of common law discussion is that uh it turns out you did not need to show affirmative innocence was proven to make that claim successfully just that you didn't have anything that sort of excluded your innocence that the resolution was consistent with the idea that you were in fact innocent and then the respondents brief sort of responds in two ways one is just kind of saying uh the facts in this case are not so good maybe you didn't want to take this one um there are sort of fact specific barriers to sort of framing this claim is a malicious prosecution or you're sure you want to do this court so basically all of the sorts of things you might do if you are angling for the courts to dismiss the cases and prominently granted and then the back half of the brief is sort of saying okay okay if you want to look at the commonly history of malicious prosecution that's fine but it was a little bit ambiguous as to what favorable termination involved uh respondents do not dispute that it did sort of cover some of the things petitioners said but respondents also say you know what sometimes courts i come along around 1871 actually also make you affirmatively show your innocence so it's too unsettled to be really incorporated into section 1983. uh the justices i suspect are really going to have fun with this one because it gets into the common light history and they tend to find that really interesting a lot of them sort of really like the kinds of cases that let them delve into uh the history of the kamala and what what sort of these various torts entailed and i think there's also a very uh a lot of parallels to a case from last term called uzabonum versus prachevsky where there is also like a sort of similar cross ideological support uh for a petitioner who there was arguing that nominal damages awards do not move to civil rights cases and that case too sort of attracted the justices love of delving into commonwealth history so perhaps these sort of thoughts of nostalgia for this issue and that also explains the grip uh the next case i will talk about is cameron vs emw women's surgical center which i like to think of as the other abortion case the term the abortion case that no one is talking about and the reason for that is that it is not actually about abortion but a very very technical procedural question uh cases about abortion usually attract hundreds of amicus briefs and you can tell that this one does not actually involve abortion because it got for a miki total so the question presented is whether a state attorney general who is vested with the power to defend the state's laws should be permitted to intervene after a federal court of appeals and validates a seat statute when no other state actor will defend the law so if that sounds a very fact specific it is indeed very very fact specific uh why do why so you might ask why the heck should the court grant this pretty backbone case the reason is that the sixth circuit which is the court of appeals in question here appears to have split with the ninth circuit on this highly fact specific question about what happens when one part of the state stops having to defend a state law and there's no one else defend it can the attorney general or someone else then take it over um and i think the other thing that's probably going on reading between the lines is given that it was a pretty weak sort of 1-1 circuit split uh i would guess that the court was pretty skeptical of what the sixth circuit below did in this case so how did this come about um it is one of an increasingly common number of cases that gets to the quartz daca because weird things happen in state governments whenever parties flip swift swat party control so it's kentucky in this case here there are two things you need to know about kentucky one is that the kentucky attorney general's office litigates separately from the sort of rest of the kentucky executive branch um and two is that there are separate elections for the kentucky governor and kentucky ag so that you can simultaneously have a republican governor and democrat aj or vice versa which is exactly what kentucky had so here the kentucky governor started off as a republican in the suit um and so that governor's office and the branches that that office controlled were pursuing defense of the state's abortion law but then the governor's office switched to democrat and meanwhile the kentucky attorney general's office started off democrat but flipped to republican in the same ensuing election so what happened was the attorney the attorney general had originally sat the case out letting the governor's office folks pursue this case through the 6th circuit briefing and then the party switched the 6th circuit upheld the district court's injunction against the law at which point the governor's office via the secretary involved refused to keep defending the law through the unbunk and surf petition stages and then the agent said hey what about me i'm a lawyer i get to represent the state um and move to intervene on the commonwealth's behalf the sixth circuit said you're too late uh you should have tried to intervene earlier aj if you wanted to participate in this case so too bad it's untimely um there are not a lot of rules for intervening in federal courts of appeals and the kentucky attorney general's office now says their intervention motion was really just a handoff to continue the representation it's a normal intervention uh sort of they're saying uh and any other result would really disrespect state sovereignty because of the way that the state is set up it's supposed to be facilitating the attorney general to defend laws uh in these sorts of instances respondent is um the abortion clinic represented by the aclu and they say the aj should have just acted sooner they should have filed a notice of appeal after the district court last that's jurisdictional they also say you know the states should be treated like everyone else in terms of jurisdictional rules in terms of timeliness of intervention and that if the state is uh now sort of regretting this the attorney general has other of course uh can can approach the district court for potential relief so very narrow question there are some echoes of pieces that court has taken before like virginia house of delegates versus bethune hill where this issue kind of percolates to the court where you know state one part of the state their one house the legislature wants to sue this case is kind of the next chapter in that because everyone here agrees i think that the attorney general does have the power under state law to represent the stage and the only real question is what's the court going to do about it uh so i think these cases will keep bubbling up um and the reason is the norm that states or federal government would simply defend whatever statute is on the books uh has eroded and so it is increasingly common when there are shifts in who's in power um to see various parts of a state or federal government not wanting to defend a lot anymore oh sorry uh now it's off to you kate thank you um so the two cases i'm going to talk about are both government is top side so meaning the government lost below and and both are very unfun cases just in terms of the underlying subject matter but um but i think they're important and they're significant in their own right just as individual cases which is is both a combination of the us supporting the petition um but also just their independent significance that that would have led the supreme court to take these cases regardless of what they end up deciding um as to how the lower court did the first is zubaida united states versus zabaida where respondent was captured post-911 in pakistan detained in cia black sites um and subjected to enhanced interrogation there's no question about that repeated waterboarding other techniques that were part of that program before eventually being transferred to gitmo and where where he still is in custody um in this particular matter he sought to compel discovery from two former cia contractors a psychologist who was sort of behind this program for use in a criminal investigation taking place in poland by polish prosecutors and as the government describes it is seeking to confirm or deny whether the cia operated a detention facility in poland during the relevant period so in the early 2000s the alleged use of these interrogation techniques at that facility to the extent it existed and the details of respondents treatment again in that facility assuming it existed in poland on the one hand there's been significant disclosure of the cia program including declassified ca cia documents that go into some detail of the treatment of respondent himself discovery in a different civil case involving these same two contractors that describe some of the interrogation uh just a decision which i think will will end up coming to play in the oral argument at the court by the european court of human rights that seem to take paul the polish government's refusal to confirm or deny and turn that into an inference and ultimately a conclusion that yes of course there must have been one of these black sites operated in poland that related to respondent as well as a senate select committee intelligence report that did a comprehensive review so you've got a lot out there that is very detailed about respondent on the other hand the u.s government has repeatedly across administrations rejected the implant requests those are the mutual legal assistance treaty requests government to government transfer of information from the polish prosecutors and has never confirmed where the particular black sites um were located so the district court found that yes there was still some information despite a lot of speculation and a lot of reporting of some information there was still significant information that was being sought here that should be protected by the state secrets privilege which is how the government responded motions to quash the subpoenas of these individuals based on state secrets um but then also acknowledge there may be some of that information that is being sought that is really already in the public domain but ultimately concluded when you look at it that information isn't really what is going to be useful to the polish prosecutors and there is a risk that you will actually end up having revelations related to uh that information that is protected by state secrets in the course of trying to sort of winnow this down so the district court uh took the step of just cutting off the discovery altogether um a divided panel the ninth circuit i would reverse and send back with a heavy hand toward allowing the discovery to move forward re-hearing was denied in this case but had a very notable strong 12-judge descent which didn't even include two of the trump judges who had not participated in the case so the trump administration filed the cert petition followed up by the biden administration filing the reply and the merits briefing all taking the same view as to the ninth circuit that the ninth circuit had gone too far and imposing its own judgment not provided the proper amount of deference to the cia's assessment of what the national security risk was sort of making too much of the fact that these were contractors and not government officials um and then also just arguing that uh the discovery in this type of a proceeding which i'll get to in a second it's just the wrong place to try to dabble with information that may ultimately have a state secret element to it so so what should we be watching for um when this case is argued you know as i said this was a top side u.s government request for cert strong national security interests further supported through a change of administration it makes it a strong case for cert no matter what so i don't think we can assume the court necessarily took it to reverse which we often do when there are 9th circuit grants but i do think there are two things that may trouble a majority of the justices here the first is this sort of logical intuitive notion that it's precisely official confirmation of speculation about poland's involvement that responded is seeking if what was already in the public domain is taken as fact it's not clear why the polish polish prosecutors would need more now i should just claim at this point that i have no insider information about this case despite my government service but i do have some experience with information being widely reported and there being multiple purported sources who confirm it and it can be nonetheless false so i just put that out there and i think most people who've lived in this town worked in this town and potentially some justices that the supreme court um have witnessed that experience too and so i just think it's it's important to kind of keep in mind as the court is is looking at is there's still a nugget of a secret left here sufficient to be protected um and the second thing about this case is it's procedural posture this is a section 1782 request which means there's no underlying case filed in a u.s federal court there's no underlying case or controversy in a traditional article three sense so there would be no article three judge that is in sort of continued monitoring of how any information that is gleaned through this compulsory process might be used in an ongoing basis um and so i think that that you know given that it's it's got that overlay and the government is making much of that that you'll see a lot of questioning by the justices about how exactly we feel about using this slightly odd mechanism although has existed for a long time to hand over information that potentially gets near state secrets which is ultimately why the district court made the decision um that it did um the only other thing i'll say about this case is just sort of stepping back and looking at the context um you know they're undoubtedly strong emotions surrounding the cia's now ended enhanced interrogation program of which respondent was a part and respondent did assemble a very um powerful lineup of amiki to chronicle that treatment the case is also being heard when memories of 911 are probably at their strongest that they have been in in quite a few years you had biden officials on the hill this week talking about how the war on terror is very much alive and ongoing um and you have not just the trump and biden administrations continuing to invoke the need for uh state secret privilege here but you know would have included obama and bush before that and so i think um uh you know that's another element to sort of watch and what might be the backdrop and finally just note that there's another case involving state secrets that will be argued in november so i think we may see these cases aren't before the court very frequently so we will get some insight perhaps into how the justices are viewing state secrets more broadly that might relate to that case um the second case i'm going to mention i mentioned very briefly and not because it's not significant in its own right um but just really in the interest of time and that's the united states versus tsarnaev case out of the first circuit um this involves the death penalty um tsarnaev was the surviving brother of the boston marathon bombers um no question of guilt here that for the terrorist acts that took place in boston um instead before the court are issues connected to his capital sentence although one not or both of them really not uniquely so one is sort of how the trial court dealt with prospective jurors exposure to pre-trial publicity namely whether each juror should have been questioned particularly and uniformly about specific content to which they were exposed and the second is a very fact specific to this case you know whether it was proper to exclude particular evidence about an alleged crime that the respondent's brother committed a couple of years prior really with the view by respondus position that if that information had been presented at the death penalty stage um the jury may have seen the younger brother is less culpable and more under the sway of the older brother um you know ultimately i think people know what happened here in in the trial court there was extensive vardir but not script scripted and not always probing of exactly what the content exposure of particular media was per juror um and uh you know i just i mean just very quickly i'll say in terms of what one might be watching you know first um i know as professor adler has others have you know it's interesting that you have the biden administration fully briefing this case sticking with the trump administration's positions obviously this this prosecution was brought during the obama administration but you also have this pause in federal executions by the attorney general i don't think it's in the interest of any particular justice to raise this possible tension it's just something to keep in the background the second thing is a lot of the reporting about this case is focusing in on some social media statements that were made by a couple of jurors and that issue actually isn't directly before the court that's an issue that would need to get resolved um depending on how the the court resolves the question before it um but my guess is the court's going to spend a significant amount of its time on the first question about what whether you it's okay to have a rule for you need to have a rule for how much in depth you're going to question jurors as to the specific media exposure they had i think there will be questions about what we do when we have a system that's largely based on putting investigating the jurors on the part of adverse parties with mixed incentives um and or ultimately have relied heavily um traditionally on jurors prospective jurors self-disclosing both what they've seen and heard and how they would handle that and i think in an era when we all think you can have a trail on the computer of what we think people read you know is should that change what we think is sort of the fundamental approach to talking about jurors the second issue i think is highly fact specific they will absolutely ask a lot of questions about it but it's a little bit hard for me to see what sort of bigger principles legal standards going forward might be affected by a decision on that particular issue um so with that i will hand it over to professor adler great um and like the other pleasure to be here it's it's great to have the opportunity to to dig into some of these lower profile cases because they certainly are an important part of the court's work i want to start off just by talking about two criminal law cases that come from the sixth circuit um not because i live and work in the sixth circuit but i think that it's particularly interesting to follow the travails of the sixth circuit in the supreme court particularly in the criminal law context in some circles the sixth circuit is sometimes referred to as the new ninth because over the last 15 or so years the sixth circuit has had a pattern of reversals in the supreme court particularly in the context of criminal law and even within criminal law uh with particularly within the context of habeas petitions filed under the uh under edpa under the um anti-terrorism and effective death penalty act which among other things limited the basis upon which federal courts can grant hideous petitions to those who are convicted of crimes in state court and in fact um just recently um there was a case in which this uh the six one of the judges on the sixth circuit noted that the supreme court has reversed the sixth circuit in 22 cases uh under edpa in in just the last uh 20 years um it's something that we we have come to expect at almost at least once every term um and uh in our for the october sitting we have an advocate from the sixth circuit in which the sixth circuit and i should note those 22 cases um almost all of them were cases in which the sixth circuit had granted a habeas petition and the supreme court ultimately concluded uh that petition should not have been granted and in the lion's share of those cases um the reversals were actually summary reversals um now we have a case in the october sitting a brown versus davenport which is a case involving a grant of a habits petition by the sixth circuit the court has scheduled argument we're going to hear arguments so there won't be a summary reversal uh but certainly it's hard not to think about this this the record the sixth circuit has had before the supreme court when one sees this case in this particular case uh it does present an interesting question about what is federal courts are supposed to be looking at when evaluating whether or not a heaviest petition should be granted in this case uh irvine lee davenport was convicted of first degree murder um but what happened in his during his trial is that he was visibly shackled and um that's that's unconstitutional if the court does not have a good reason for the shackling if there's not some uh need to have the defendant restrained in that way um and the supreme court has held for some time now that that the jury being able to see the criminal defendant shackled during trial is unduly prejudicial so there's no question that trial court here did something it shouldn't have done that it should not have allowed uh mr davenport to be tried while visibly shackled um and this is something he raised in his direct appeal um but both the the court of appeals in michigan and the michigan supreme court concluded based on interviews with the jurors as well as on the overwhelm but it what those courts felt was the overwhelming evidence of mr davenport's guilt that even though this was a constitutional violation uh it was not prejudicial that it was a harmless error on this basis davenport filed a habits petition and the issue that that the the district court and the sixth circuit wrestled with is whether or not in evaluating this petition they should be focusing on the nature of the of prejudice that was um that mr davenport experienced or whether they should be focusing on the way that the appeals courts evaluated that claim on appeal now under edpa the standard is that an application for a petition for a writ of having's corpus shall not be granted unless the adjudication of the claim resulted in a decision that was contrary to or involved in unreasonable application of clearly established federal law as determined by the supreme court of unit of the united states that's the language from edba so the question is in answering that question is the unreasonable application of established federal law the action taken by the initial trial court in allowing mr davenport to be shackled or is it the appeals court in michigan supreme court's evaluation of whether or not that was unduly prejudicial to davenport and um the dissenters in the sixth circuit uh said that it really it should be the latter question and this is a case that that almost went on uh uh on bonk and there was a concurrence in the denial of on bonk review by chief judge sutton that was essentially a certain petition in this case it said this case was wrong but not on bonk worthy but the supreme court can probably sort it out because uh the supreme court had not clearly addressed this question when you read that sort of concurrence in the denial of petition for onboard review from uh someone like uh chief judge sutton on the sixth circuit that is a de facto uh petition and i think certainly was influential in the court uh accepting cert uh and i think that that it certainly suggests both both looking at what we saw below and the pattern that we've seen in the sixth circuit that we certainly go into this case assuming that the court is looking to reverse the sixth circuit uh that it is looking to to clarify that when one is evaluating a petition for word of previous corpus one is looking for whether or not the last quarter of review at the state level unreasonably applied uh the relevant federal law uh in its decision and that's really what's to be evaluated an underlying idea here which edpa embodies and what certainly the supreme court has been fairly consistent with in applying over over the last several years is that in our federalist system the presumption should be that state courts do their jobs and that state appeals courts uh consider the relevant legal questions appropriately unfairly when evaluating appeals by criminal defendants and that it's not enough to conclude that the state court got it wrong but the error has to be have been so egregious that it was really an unreasonable application this is not something that a reasonable jurist could have had a reasonable disagreement about uh but something that's that's uh you know essentially sort of the sort of clear error that that could not have been reasonably made and i think that's a certainly a high standard as applied by the supreme court over the last decade that's a very high standard that's why the supreme court rarely affirms the grant of abuse petitions under edwa and certainly going into this case uh combined with the poor record of the sixth circuit on these sorts of cases that's certainly what we would expect here another criminal law case um which comes from perhaps coincidentally coming from the sixth circuit it's actually going to be the first case heard next week uh is a case called wooden versus united states and it's an armed career criminal act case and what would be a supreme court term uh without an armed career criminal act case we seem to get one of those almost every year and it's a fascinating statutory interpretation case i think that is deceptively simple uh uh but perhaps not since it's divided uh the circuits and that is how it is that we count prior offenses under the armed career criminal act under the acca there is a 15-year mandatory minimum for gun possession uh when someone has been convicted of three or more predicate offenses that were quote committed on occasions different from one another and that seems rather simple right you have to have committed multiple predicate offenses at different times on different occasions um but maybe not what happens if you are engaged in a crime spree and you do lots of of predicate offenses one after another um so they are sequentially separate these aren't multiple offenses that all occurred from the same narrow set of events but occurred one after the other well that's what william dill wooden did he uh when he was arrested for gun possession he had previously been convicted for 10 burglaries occurred at a single storage facility but they were separate burglaries of separate units within the storage facility and the federal government argued and its position that the sixth circuit accepted was that those were separate occasions because they were temporarily distinct each burglary was completed before the next one was started uh and that um therefore that each one of these is a predicate offense uh and but this is something that the circuits have split on and i think it'll be very fascinating pure statutory interpretation question about how do we interpret this phrase what do we do with the phrase committed on occasions different from one another does it require these to actually be separated by extended periods of time is it enough that they are temporarily distinct from one another and i one of the reasons why i think this case is is will be worth focusing on and and it'll be worth thinking about the questions that are asked at oral argument is a lot of times when we see statutory interpretation cases and we focus on them they're the big cases that that are very politically freighted cases like bostock or what have you where uh we expect uh certainly as observers and we may even expect the justices to at least be aware of the broader political context in which the case is hurt um i doubt people have really strong priors about or many people have really strong priors about the army career criminal act and it does implicate you to what extent do we interpret a phrase like this uh based on a common sense meaning or perhaps you kind of the plain meaning that we might have outside of a legal context uh to what extent we should be influenced by the on our understanding what the broader purpose of the statute is in this case it's about career criminals people that are recidivists people that keep committing crime after crime well this is a single evening's crime spree consistent with that underlying purpose even if it fits within at least one possible interpretation of of the phrase so so as someone who teaches statutory interpretation i'll be very interested to see the sort of questioning we get super quickly um because it's the only environmental case in the october sitting and it relates to a sort of question that i think is going to be coming before the court with increasing frequency i want to say a tiny bit about the original jurisdiction case uh that the court will be hearing uh next week mississippi versus tennessee but we get one right now one or two original jurisdiction cases per term for those that are aware original jurisdiction cases are those cases where there is no lower court opinion um these involve cases where one state is suing another they go straight to the supreme court because the supreme court doesn't really like fact-finding it typically appoints a special master to do the the fun work of of going through the facts and figuring out what occurred and making a set of recommendations and then the states file objections to the special masters recommendations here mississippi is claiming that tennessee and in particular of the city of memphis has stolen some of its water and water is important it's important to many states it's important particularly in the southeastern united states and in the western united states we see lots of original jurisdiction cases involving water uh because uh water is is so important for so many things and uh as we've seen increased development increased demands on water supplies we see states increasingly concerned about whether or not the actions of their neighbors are taking their water so mississippi mississippi is claiming tennessee you are taking our ground water tennessee's response is well no this is an aquifer that stretches underneath not just both of our states but in fact eight separate states and since we don't have an interstate compact at most you could claim equitable apportionment uh and and then in which we would have to kind of in equity determine who gets what share of this aquifer and then use that as the basis for determining whether or not water has been taken a mississippi doesn't want equitable apportionment mississippi's claim is you are taking ground water from underneath our land uh and you should be stopped um in some respects this is a sleepy technical question but i think it has very significant implications both focuses already mentioned increasing development and demands on water supplies combined with changes in water distribution and availability and rainfall that are occurring due to climate change this is the sort of thing we are going to see increasingly uh before the court because states are going to disagree over whose water it is and clarifying as this case will uh the extent to which groundwater should be subject to equitable apportionment will be significant and important and a sign of that is that a bunch of western states uh who don't share this aquifer at all have filed an amicus brief in this case as have some academics making clear that it's really important that the court clarify the rules for who owns what water as the western states say whiskey is for drinking waters for fighting water is something that states fight over a lot and we're seeing that this term too i will stop there dude terrific there's there's a great deal on the table and i've got dozens of questions um but um i want to maybe turn to the more thematic questions first rather than pick these cases apart however interesting they are um a couple of you have mentioned you know there are some uh outstanding high-profile cases later later in the term this i think we've described all of us have referred to it as sort of a more workmanlike term uh bread and but but bread and butter cases important cases i mean when we talk about water disputes between states or uh criminal justice reform issues that that cut across the political spectrum uh some very important things um i wonder if anybody wants to address the whole of the october sitting in in terms of its level of uh um press attention or public interest versus the the bread and butter aspect of what the court really uh really does with probably 95 of its case load i'm happy to jump in there real real quick and i think there's a lot in this first sitting that is very typical of a term you know we have an original jurisdiction case we have an ica case uh we have a a an advocace um what's what's interesting about this sitting or what's missing is we don't have much in the way in terms of a big business case um there's a lot of there's been a lot of discussion about uh business cases in the supreme court certainly a lot of supreme court litigation does involve questions involving regulation involving orisa involving um commercial disputes or business disputes that's something that seems somewhat absent from the october sitting so while there are things that that are you know staples of supreme court litigation it is interesting at least that not only does the october city not have uh the big political flashpoint case that of the sort that we'll see later in the term uh but it doesn't have a lot of cases that have attracted interest from the business community which is something we've certainly come to expect in the roberts court i guess the interesting thing there is i think rolls-royce fit the bill exactly for business cases but it went away there were certainly sort of i think there are at least six and because full disclosure i represented one of the parties in the case but um rolls-royce but the case went away from a stipulated dismissal uh the business community was certainly seem to be very interested in the issue uh but arbitration discovery as the name may suggest involves discovery um and thus this particular type of case is prone to settling or going away for other reasons um and interestingly enough i couldn't agree more with you jonathan about the courts looking for business cases um the other features sort of in the docket right now is another case also involving discovery in the securities contracts pivotal software also important to business also involving discovery also went away um so i i think there is a sort of gap in the october sitting right now um and i think it remains to be seen whether the court is going to try to are they conscious of it do they want to create more business cases i don't know but it does feel like a little light right now hey do you want to weigh in on this point or should we move on no i i might my old hat i would have been promoting very greatly that there should be no more business case grants but i i don't disagree with uh sarah and professor great this does give me the opportunity to mention once again jonathan adler's most relevant book uh business in the roberts court uh and and i had to ask you one question jonathan and i i have heard it said i've never seen this really in writing but that um you know well i have seen in writing that the court some different areas of the court are considered pro-business uh but i've also heard but not read um that that conclusion is in some ways based on data that people run the numbers and that might include a case where a business suse business in the supreme court a business wins so it's considered a pro-business uh outcome under uh that study is is that happening well i mean i think so in this you know this great great opportunity to talk about the book and kind of the thesis that we that it that it ultimately reaches which is there are kind of structural reasons why we would expect there to be a lot of cases that matter a lot to business supreme court litigation is expensive um uh hiring good advocates is expensive uh when there's a lot of money on the table uh there's a greater willingness to to push ahead and so it shouldn't surprise us that um there are um that private disputes that that matter a lot or that have larger stakes are often the ones that end up making it to supreme court in terms of the supreme court how it resolves those cases my own view and certainly in doing the book and other work i've done on business cases before the court i do think a lot of the claims that are made about business cases uh are overly simplistic and i think that that you know we like to we often see people talking about cases about who won did the police when did the defendant win did the business win did the consumer win and i think that obscures that what the court is really focusing on with the justices focus on are the underlying doctrinal questions and so those areas where business parties tend to win are those areas where their claims are consistent with what the dominant judicial philosophy is on the court and those areas where they're pushing against the dominant philosophy of the justices on the court they tend to lose and i think that that's a better way of explaining so the court is uh cur as currently uh uh composed tends to be skeptical of what i might characterize as entrepreneurial plaintiffs litigation um the court's view is if there's gonna be a new type of litigation out there we expect congress to have authorized that we're not going to discover causes of action that that had lied dormant in a pre-existing statutes the way courts and prior eras used to discover implied causes of action all the time well so if a case involves some new creative theory of some new creative class action theory for example supreme court's likely to reject that and that will be uh chalked up as a business win um but if businesses go to court saying um excessive punitive damages are unconstitutional uh they violate due process well this is a court that's skeptical of that not because of any favor or disfavor about business but because this is a court that's skeptical of very aggressive substantive due process claims uh and so especially since justice kennedy's left the court are there there aren't there isn't a majority of justices on the court that are are open to that sort of claim and so that's an area where business is going to lose not because the court is more or less solicitous of business but because of the nature of the claim that's that's being brought before the court and i think that pattern replicates itself over a wide range of subject matter interesting interesting well turning back to the business of this court uh the term opens on monday i think we're going to see a new uh a new form of or format for oral argument i wonder if one of you could talk about that maybe describe what's changed uh from last term um and what we'll see on monday anybody want to weigh in there sarah you've unmuted yeah sure i'm happy to do it um so since the special may 2020 session the court as many of you may know has held remote arguments with syrian questioning starting with the chief and going through each justice and order of seniority next is justice thomas and then so on i actually did two arguments in that format and so i'll just sort of say my take on the pluses and minuses the pluses are there are there's more until uninterrupted time with one-on-one questions you get to kind of flesh out your arguments a little more without getting interrupted which can be great uh the other plus is justice thomas ask questions which uh as a former clerk for him i consider awesome but i think the general consensus also was that he was a great questioner and really did a nice job of setting the stage for the ensuing questions that the court was concerned with you would hear like justice fryer saying yes justice thomas said and sort of picking up the baton from there um and i guess one theoretical plus although i did not use it was that you in theory could wear like a hoodie or sweatpants or something if you're a really casual person if not i wear a suit uh but if that makes you feel comfortable you could totally do it the minuses are that you are at one justice's mercy for about two and a half minutes um and if you represented a criminal defendant last term for instance you might not have enjoyed being at justice alito's mercy for quite that long without a friendly question jumping in and then you also had fears of technological failure which did happen every so often um i liked it i think the supreme court car it's fair to say was split over it but now the court is debuting a new format that is sort of almost back to normal which is arguments are now in person but it is very restricted to argument council a plus one the justices and i think like a tiny number of press you still get a two-minute opening at the start uh which the court's been doing for a couple of terms now but then it's the free-for-all and then there's a bonus round of theory item questioning after that so what's it gonna be like um no one really knows but i think the only clear thing is that it's definitely going to be a longer argument format the court clearly is not afraid of having arguments run over and i think the most interesting two things to say about this or one is justice thomas going to participate may well be that they're still keeping this theory adam questioning option so that he feels more comfortable participating i hope that's true and two i think for the justices who use arguments strategically and so i put justice as alito um justice kagan and increasingly justice barrett i think we saw last term in that category it'll be really interesting to see whether they choose to make their really hard hypos or efforts to extract concessions near the end of the free-for-all or whether they want to really zero in on it during the syrian point where other justices can't interrupt them i don't know but um that'll be something i'm looking for yeah and i would just add i think it's interesting that the court decided to do the free-for-all first and then the seriatum it just seems as a complete logical matter to me if i had no one asked me um i would have started with the sariadam first to just make sure that all of that stage setting was happening i also would have liked to have justice thomas going earlier and um in in the proceedings um but but i think that's what's a little bit strange about it is sort of tacking this seriatum piece on after and and i agree with sarah i'm not sure whether people are going to use that strategically or whether um you know what what exactly that's going to look like but i think that's a little bit strange um both for the advocates and frankly for what i think they were trying to accomplish was setting up the format jonathan anything on this point professor adler just as an academic it will be very fascinating i mean it was very interesting as as as kate and sarah both noted it was very interesting to see how the dynamic of oral argument changed going from the old format to going to seria autumn and this new hybrid um uh certainly uh i think will we'll produce some dynamic some changes in the dynamic that are hard to predict um the bigger point i think is is i hope this indicates that the court is going to stick with live or nearly live streaming um uh i i think that has been um a very very a good step forward in terms of court transparency i'm not someone who believes we necessarily need video or live video of oral arguments but but having live if not or if not live same-day audio overall arguments i think is incredibly beneficial and incredibly useful and i i like to think that the court's experience during the pandemic has been to acclimate itself to the idea that that live audio is okay and and the world won't end uh and if anything it'll help people understand more how the court works and hearing especially the cases we've been talking about today being able to in real time hear the justices engage with the meat of these these cases uh and and wrestle with uh the the legal materials and and the questions they present i think it's valuable and i think it helps demystify the court in ways that that are that are good for general public understanding of the work the court does yeah and the court actually did just announced this morning that they are going to do live live audio so i think that that's exactly right clearly they got a lot of positive feedback i seem to remember i think one of the arguments against was the potential for grandstanding i think mostly the fear was about advocates uh grandstanding or playing to the larger audience playing to the public um maybe some some concerns about justice's uh grandstanding but i take it there was none of that at least to date and that's at least part of the reason we're gonna get live streaming going forward there's one example of uh or one instance where some protesters um interrupted an oral argument and and certainly there there is a concern that's been voiced that that a live stream does create uh an incentive for protesters or others who want to get their message out but but these days that sort of thing can easily be solved by even just a short delay right so um uh you could it would be relatively easy for the court if it was concerned about that once there is an audience in the courtroom again to have a 10 or 15 minute delay on the stream uh so that any sort of protest could be edited out um so that you know some some outsider couldn't use the the stream as a platform um uh so you know it's something they can deal with and hopefully hopefully they will continue to do this i don't know if anybody has any information on this but i'm curious if you do and you can share it how how uh first we came to the format from last term and then how and why it's been revised who decides this is it just the chief is it a consensus um does anybody want to speak to that or should we move on yeah i don't i would assume that there is some discussion among the justices but i don't know how that ultimate decision is made yeah fair enough fair enough uh that makes sense um i want to mention to the audience we've got about another we were resolved to do this in less than 90 minutes so we've got almost 25 minutes left i've got plenty of questions to carry us through but if you'd like to use the chat or the raised hand function if you're in the audience if you would like to ask a question uh please do so um this might be i mean we might start with sarah here i don't know but um you mentioned in your discussion of cameron the the dissonance or i suppose between one administration at the state level and the next and uh differences of opinion between uh the aeg and and um i guess the rest of the executive branch but the question is really about the federal government now in the supreme court and changes of administration and consistency or inconsistency between one administration and another um and and kate i think you mentioned that in in a couple of your cases there was consistency um uh and uh layered on top of all of this is like what causes inconsistency what can we expect um why does this happen and with particular regard to this administration is it important that there was no confirmed sg um in in maybe fostering a change in position anyhow i throw all of that open data yeah i think the interesting thing right now is the government uh the biden administration's listener general's office i think last term when they came in i think knew that they were under the gun and flipped positions in a lot of cases but did it fast except for in united states versus terry which was a little bit later and i think it's safe to say an argument both the chief justice and justice spherot really really held the government's feet to the fire on that asking some very uncomfortable questions about has the government shifted from its calculus as to when it should change its position uh what metrics do you use etc etc those are not questions that you really want to get as a government lawyer although i suspect that the deputy who argues did expect them um it's just they're not comfortable by contrast as kate has mentioned this term the court is now hearing cases that got granted you know last term and would have been briefed by the outgoing trump administration folks but clearly the bite administration had decided to cue to the position so going forward i mean i think like the next likely flip that's going to happen is the court asked for the views of the united states in the harvard affirmative action case um that brief will probably come in by december and i would probably put money on the idea that the biden administration is not going to agree with the trump administration uh that harvard's affirmative action policies are unlawful i'm guessing they're not going to say that so what sort of drives it i mean i think it is the case that on the one hand the sg's office has to balance institutional interests where it is more unusual at least for the government to change positions in say criminal cases or cases where the government has really an institutional interest in a particular issue across the board where the government usually wants to win the prosecution says they like to claim immunity for federal officials stuff like that that doesn't mean it's impossible to see a flip but it's less likely and then there's sort of cases about a particular administration's rulemaking uh where there are more political considerations and there have been over time many more sort of flips of position on those kinds of things because one administration will think that the next administration's rule is not lawful uh and or and or wants to get rid of it and rulemaking so what does all add up to i mean i think that it means that we may be approaching more of a norm where it is more expected that if there's a change in administration the sg's office will flip more and i think the question is is that a good thing or a bad thing i'm not sure it's inherently either i think it's just probably a change from the more institutional uh path that the office had historically taken yeah i think that that's a really good description of the types of cases where you could expect to see a change i think it's like a lot of discussions we have about the court um and makes me think of the business case discussion as well you end up with it's very difficult to get perspective on the court um and i think that's part of what's the good discussion today um and you get this sense when there's a bunch of flippage usually at the beginning i think we will see some more on on some new areas that the biden administration is being asked to weigh in on or at least hasn't had the opportunity to yet but by and large most of the cases most of the issues continue have a continuity that go across administrations and nobody talks about that and nobody is pointing it out and really jumping up and down on that that's just the norm and these are relatively few exceptions that come i think largely you know instead of contrasting it from the cameron case the cameron case is what it is because of the state level we have non-unitary executives and necessarily you're going to end up with these situations uh where you know in hindsight we can say why didn't you stay in why didn't you do it but but it gets complicated in the the predicting ability and which way which component is gonna flip um you know i happen to uh view the federal government as unitary executive and i think there will be differences from one president to the next and one administration to the next and it would be really kind of strange if the sg were just standing pat with everything that had been done in every strategic decision um as well as policy decisions that had been made along the way um and and we should expect to see some but we should also highlight when we're able to that in the many cases where it doesn't happen jonathan do you want to weigh in here yeah because the only the only thing i'd add is that when we look at the federal government uh in its litigating position in the sg's office in particular we have to remember that the that office has to balance a certain set of considerations that i think a lot of times political commentary about the actions of the justice department overlooks which is not just the outcome of a particular case but what it means for all the litigation that the federal government's involved in and and how a case uh may affect that so we talked about the tsarnaev case before the bide administration uh isn't particularly interested in in maintaining that position because it it's in favor of capital punishment but rather because the justice department is involved in lots of criminal prosecutions around the country and something that changes the way of warders is is is conducted or changes the the way appeals courts might review um wardear in criminal trials could have broad-reaching ramifications for a wide number of cases and the justice department has an institutional interest in maintaining positions that help the executive branch maintain the work that it does and that sometimes chafes a bit with what a a given administration's policy preferences are and um so i think that that that is important to remember it because it helps explain why we see consistency on certain legal questions even though what might appear to be the policy particulars have changed so dramatically very interesting again if you have a question use the raise hand function if you can i've seen a couple in the chat and we'll get to those momentarily um but uh we mentioned the the new format um and the possibility of longer oral arguments i don't know if that's a foregone conclusion or not but of a somewhat related question and that's about the shrinking docket of the supreme court i can't i can't identify really off the top of my head anything else in the federal government that has been shrinking uh over the past decades um certainly not to the extent we're seeing in the caseload of the supreme court it's i think it's more than halved or it's you know it's forty percent of what it used to be with it um any any thoughts or reflections on what used to be the number of cases and now is the number of cases too few i agree i mean the court the court this was a trend that began initially in the 1980s when congress reformed the nature of the court's jurisdiction so the court used to have a a decent number of cases every term that were part of a mandatory appellate jurisdiction and congress has i wouldn't say eliminated but dramatically reduced the the range of cases that can invoke the court's mandatory appellate jurisdiction it tends to involve election cases redistricting cases a very narrow set of cases where congress has required um effect or effectively required the court to hear so the court's docket is made up almost exclusively of certiorari cases cases where it's discretion discretionary on the part of the court and under both the rent chief justice rank quest and chss roberts the trend has been to grant fewer and fewer cases over time and um it's gotten to the point where you know we don't even get to 100 cases we now get to 70 60 55 um and and it's unclear whether or not that isn't part of function was a function of a pandemic that that it's gotten that low um my own view though is that that there there are there are more circuit splits than that there are more cases that that are worthy of the court's attention i also think that that one of the many factors that may explain the pressure that we're seeing on the shadow dock at the emergency docket whatever you want to call it is that the court is is is deciding fewer merits cases and and hopefully we'll see some recalibration there are you suggesting jonathan that there are fewer cases being argued in the court because of the shadow docket or because there are fewer cases being argued in the in the court the shadow docu docket has emerged or become more prominent well i think i think the the the shadow dockets become more prominent for a a range of factors i think i think um there are multiple factors uh that that have contributed to that um but i think we we it is fair to note as some commentators have that some of the issues that are being handled on the shadow docket are issues that should be handled through uh normal argument and briefing and um the court i think should should do that and if it hurt more cases generally that would create less pressure for people to to to seek emergency relief because their these cases would be handled in the regular course um but the shadow rockets is a whole other i mean there are other factors some of which i think were were specific to the last four years that also uh contributed to the large number of cases on the shadow docket um as well as the increased uh entering of nationwide injunctions by district court something that that began um really started to increase about seven or eight years ago uh and has continued to pace that also puts pressure on the shadow doctor sarah arcade anything on the the overall caseload or the shadow docket i i other than i would you know i i don't use that term i i know that um it's become very popular but i think you know whatever you want might want to call it the emergency motions docket the we might call it often times the bread and butter docket of the kinds of things courts all over the country do to deal with things on an emergency motion um it it you know i it's hard i'm hard pressed to think of a lot of situations where the court has done something there that a sort of normal argument full briefing um time frame that the court uses in its it's it's actually argued cases um would that it that i really see a play off there that one is coming at the expense of the other i mean the court isn't equipped generally to do really fast beginning to end type of uh litigation or review that involves oral argument i clerked during the bush versus gore term it pushed the court to the limit to do those two cases back to back in that emergency manner the way that it did um you know it was capable of doing it it did hear the oral argument um but i don't know that that's something that the court is is uh you know that would be a change in how the court typically acts to take those things that really are emergencies and shove them into their work a day sittings now i understand the argument that they've they they don't have a bunch of things going on in their work a day sittings but i think there's plenty to come from the normal cert fair that could go into those dockets and build them up but i i don't necessarily see the relationship between um the two of those things and and a little bit hard-pressed to to to get as much credence to this concept of the shadow docket as i think is is kind of popular to talk about right now interesting sarah yeah i agree with that i mean i think that just to talk about what's causing the small number of merit cases i really don't think it's likely that it is so much the so-called shadow docket emergency docket other docket um it does sort of seem like the court is deciding that they are taking a pass on various sorts circuit splits i mean maybe this is sort of the plea of the advocate but like i do wish they would take more because you see petitions go up not just your own but like other people's and they really do point to a circuit split or a really important national issue um and the court nonetheless says not right now like they might say we'll try again later we'll see the circuit split whatever but the end result does seem to be not so many cases uh the lung conference just happened that's the case that's the conference that happens right after the summer where the court considers a bazillion invitations that have been building up over the summer uh they had five grants this morning now who knows they might be issuing more orders less later but like five grand out of the long conference is not a big number your odds are really low um and so you know i do wonder a little bit about the timing of it because there are some times in the court's calendar now where they are so parsimonious with grants that they can barely fill like i i think it was a real struggle for them this past term to fill the october november december sittings like they even granted an immigration case to immigration cases over the summer which like happens approximately like very very rarely to have summer grants i think just to have things to say and it had things to do in december so i don't know what the driver of it is um but it is a really pronounced trend and i think it is causing challenges to even it seems like they're having trouble keeping pace for whatever reason there's a question in the chat and it's it's a question i i suppose i share i think it's for uh uh for sarah and and that is concerning thompson versus clark i don't understand how almost anyone could ever file a 1983 case if the government can choose to block lawsuits against itself i think implicit in this question is when you you had mentioned that if if charges are dismissed um that in some circuits means you can't file a section 1983 case and i think the question is asking is that being done deliberately is the word out that that would uh that would preclude uh a section 1983 case so this is certainly you're sort of preaching to the choir of the petitioner's brief here because the petitioner is basically saying the um standard in circuits like the second circuit at least for malicious prosecution type claims where there is this element prerequisite to filing a 1983 suit you do need to show quote favorable termination um you know i don't think anyone is accusing the government of systematically having bad faith but the rule being that the government if the government just does the sort of normal course dismissal and doesn't have to affirmatively admit that you were innocent or more likely than not innocent then yes like it is the case for for good or bad intent that you would i mean this is what petitioners say you virtually never can file a malicious prosecution 1983 suit under the second circuit's rule um and you know i think that is one of the policies slash sort of practical arguments that they are really pressing home in their brief uh and i would certainly expect that kind of question to come up an argument for the other side to say can you explain to me are you aware of examples in which there have been successful malicious prosecutions in the second circuit because it seems like that would be really hard are there other guests went away in on this okay we've got just a couple minutes left and i want to try and stick to this sitting rather than venture in into uh future cases uh unfairly um but i have a question of jonathan adler on the the original jurisdiction case jonathan um and that is i do see the the the water wars coming um especially in the western states and there are dozens or maybe hundreds of water treaties um is it common to have water treaties for groundwater that is water that's under the ground now most most of the compacts um that that arise or that are litigated are over river water so you see quite a few cases involving um upstream states versus downstream states and they entered into a compact 30 years ago about how to figure out uh how much water can be diverted upstream and leaving enough for downstream and um we don't usually see i mean there are some that that that have groundwater but usually we think about these in terms of river compacts certainly states can do that um any compact involving water though or any compact involving anything has to be accepted by congress for it to be effective what's what's becoming an issue increasingly is assumptions that states have made about what how much water will be available when and where uh have turned out not to be true for for a whole for a range of reasons um some of its increased demands on water some of it is um a lack of with scientists for is a lack of stationarity uh basically that that systems are more dynamic than we than we thought they were and certainly climate change as well so i do think we are going to see more of these sorts of cases there are aquifers around the country where we had historically never came close to outstripping their recharge rates and it's not clear that that will be true going forward and states are in a position to advance those claims and in the absence of compacts or the absence of legislation um they will take their cases to the court let me ask a final question um i think each of you or at least two of you have mentioned on bank uh denial of on bank granting on bank um concurring or dissenting from denial of on bank what's the effect of all of that on on the court um one of you mentioned that chief judge sutton wrote an opinion in that process that basically became a certain petition how does the court look at that is it uh you know if there are just three judges who've gotten it wrong or maybe two out of three judges on a panel it strikes me that the court might think that's um less important than if an entire court uh on bonk has gotten it wrong but um or right but um anyhow i'd love to hear your thoughts on that yeah my reaction to that is i don't i think it's less important whether the lower court took it on bonk or how many judges voted wrote a dissent exactly what the lineup it is than the actual writings that are produced in that process um and because there are a lot of very circuit specific considerations as to whether they'll take something in bonk um and and some are more stingy than others you know it's i don't think that there's a lot that the supreme court should put into weight as to whether they did or they didn't although certainly if they did i think it it suggests that there was some level of importance in that circuit that they felt they needed to grapple with that particular issue but i think what's what's more significant is that process revealing thoughts and views of some of the other judges in a circuit particularly a larger circuit like the the ninth circuit but in other circuits as well that are getting to weigh in and put their two cents and often times much more than two cents into really uh well reasoned and argument as to why either the the panel got it wrong and so they're really making the case for the supreme court taking the taking that up on review and and coming with their view of the merits or just why it's something that's really sometimes it's written as this is really frustrating and we're doing our best but we have really no guidance from the supreme court and it would be really useful if you all would step in and review this particular case and so that's why i think uh you know in particularly uh judges that are very savvy at the cert process um and who know how to kind of write to that and or to particular justices if you sort of think about the amount of energy money resources put into garnering amica support in any given cert petition or a merits based case i mean i've always thought the much more powerful amicus is having a federal judge and particularly a well a very good writer of a federal judge um weigh in on the issue on your behalf and so oftentimes these petitions for re-hearing you know no one thinks they're even going to be granted but you really are trying to get some some good thoughtful writing by one of the other federal judges you were otherwise able to reach at the panel time yeah i would just add on that score i think the ninth circuit has their bad signal process like really down to like a very finely honed process because if you look at some of the grandstand of the ninth circuit over the past two terms in particular like it is almost a formula like if you get more than 12 like to censor the rehearing on bonds like the couple of opinions the supreme court usually grants uh because they are really really effective in sort of saying you know one of them will sort of be like discontent being supreme court president and the other one will be like discreet circuit splits and then another one will sort of be like this is profoundly wrong um and you see it sort of time and again on different areas of the ninth circuit's decision-making and it is pretty hard to get on bunk in the ninth circuit simply given the number of judges so these are sort of on bunk petitions that fell short or even the ninth circuit often will sue a spontaneity call for rehearing on bank and so i feel like they have their process of getting the court's attention pretty good um other circuits are not as active i mean the first circuit virtually never hears anything on bank and is i think more inclined to not really go out there on a limb and have just a descent from denial over hearing on bonk and other circuits are kind of in the middle of those two but i think like sixth circuit is sort of more like the ninth circuit and also as jonathan was saying i think for some of his cases explains why some of the judges will withhold the votes that might actually have led to rehearing on bank that was certainly true brown versus davenport and instead concurrent say you know what we could re-hear this on bank but there's already kind of circuits but it would be more helpful if the supreme court stepped in more efficient like seems like it's going to go to the supreme court anyway uh so i agree with kate though too also like when whenever you're sort of working on a certain petition or looking at them uh having having the judges as amiki is really by far the best because they have already looked at the keys and have a level of credibility that a miki may not right jonathan 30 seconds for a final thought uh well just on that i mean it's interesting there was actually a recent case in the fourth circuit where the judges on the fourth circuit in the context of an onboard petition actually raised this issue and and one judge in particular complained about uh some of his colleagues using dissents from denial von blanc as de facto petitions and i think we certainly see that that the justices um at least in certain types of cases uh are aware of dissents from denial of onboard petitions and and it certainly can't hurt in terms of distinguishing a case from the the piles and piles and piles of cases that the justices have to have to consider granting [Music] very interesting well uh we promised to do this in less than 90 minutes and i think we're close to that but i want to thank our three experts today kate todd professor jonathan adler and sarah harris this has been very entertaining and informative a good blend i would say thanks to our audience for zooming in as well a reminder to our audience to check the federal society's website for the next iteration of this which will precede the november sitting but also the many many other federal society programs and events that will be taking place in the interim but until that next event we are adjourned thank you very much everyone you 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Channel: The Federalist Society

Views: 693

Rating: 4.8400002 out of 5

Keywords: #fedsoc, federalist society, conservative, libertarian, fedsoc, federalism, fed soc

Id: GzxSh0eQjVw

Length: 92min 45sec (5565 seconds)

Published: Thu Sep 30 2021