We're Back on the Supreme Court Conference Docket ...
... for this Friday, the 20th. Let's see if anything comes out of it this time.
posted by Irv Muchnick at 5:45 AM
Wednesday, February 18, 2009
About Me
- Name: Irv Muchnick
Author of CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling's Cocktail of Death (Fall 2009) and WRESTLING BABYLON (2007). Lead respondent in the landmark U.S. Supreme Court case for writers' rights, Reed Elsevier v. Muchnick. http://muchnick.net
Previous Posts
- Pondering the Supreme Court Delay
- Now We're at the January 9 Supreme Court Conference
- LibraryJournal.com Reports Our Speculation on Supr...
- Probably No Word From the Court Till '09
- Supremes: Still No Word
- Supremes: Nothing Today
- LibraryJournal.com Stays on the Case
- Answer Man
- Tribune Company Bankruptcy
- Supreme Court Non-Update Update
9 Comments:
If we are indeed linked with the Carlsbad case (set for Court arguments early next week), then we'll likely keep getting rescheduled from conference to conference, until Carlsbad in announced. Probably not for 2-3 months.
If folks go to www.scotusblog.com (a very good source of supreme court info) & scroll down just a bit, they'll find a full transcript of the Carlsbad Technologies case that was argued yesterday. This is the one that seemed like it might be why we apparently are being "held" without a cert decision.
Having just read all 50 pages of it, I'm not so sure that it has all that much to do with us, since its central question was appeals court jurisdiction based on federal vs. state concerns (and the justices didn't seem of a mood to change current law).
The only thing that I got out of it that might relate to us: The line of questioning did concern how much latitude a federal appeals court should have to take/not take a case. The general feeling: a lot.
But then, that would be on a question that was actually presented on appeal. In our case, the appeals court stepped in and ruled on a question that wasn't even presented; it wasn't a matter of just deciding to not review the case. So again, we shall see.
Although this case does involve state courts and Federal courts, it is the Federal Court (in this case the District Court) that remanded the case because it said it lacked jurisdiction. In our case, it also was a Federal court (the Circuit Court) that remanded because it said it lacked jurisdiction. I think the outcome of this case will determine our case because the court is going to decide whether a Federal Court's decision to excerise jurisdiction is reviewable or not. I think Justice Ginsburg's comment in Carlsbad leans in favor that it is reviewable. "If Congress conferred jurisdiction, it has it, and the Court can't divest itself of that. It can, if Congress permits it, decline to exercise jurisdiction, but a court is not capable of divesting itself of jurisdiction." In our case, the Court ruled that it did not have jurisdiction because the C-claims did not have standing to initiate a lawsuit without registration. If the court rules in Carlsbad that a Federal Court's decision on jurisdiction is absolute, our case will be denied Cert. If the Court decides that a Federal Court can not choose to exercise jurisdiction when jurisdiction is present, then Cert will probably be granted and the specifics on our case will be argued.
I am not an attorney and these are purely guesses.
Thanks, Anonymous; makes more sense to me now!
And, predictably, we have now been rescheduled to the next conference, on Friday.
It appears the anonymous post is incorrect. Sources familiar with the Supreme Court suggest that the Court is either summarily reversing the lower court decision or is waiting for a Justice to complete a dissent to the denial of Cert. There is no way of knowning. However it is highly unlikely that this case is related to Carlsbad.
Who are these sources familiar with the Court & how do they know it is either a reveral or a cert denial (a rather large either/or, lol)?
At any rate, a detailed analysis of the justices' discussion of Carlsbad is now on scotusblog.com.
The writer couldn't find a direction that the Court seemed to be taking; that was pretty much my reaction to it.
I didn't say they said it was an either/or situation. Just that those two scenarios were the most likely outcomes after a delay of this magnitude. The source that I emailed was one of the contributors to SCOTUSBLOG. He said that if the case was tied to another case, it would not be relisted every week. Also, being relisted 10 times is highly unusual and therefore anything is possible.
Anonynous, can you ask your source at Scotusblog these 3 questions:
1. If the court has decided on denial of cert, is there normally this long a wait for a dissenting opinion to be written?
2. If the court has decided on a summary reversal, why wouldn't that have been posted already?
3. If the court has decided on either of the above, why would our case keep getting relisted? Why wouldn't it just stay off the calendar until the decision was posted?
Okay. After asking. in his experience watching the Supreme Court, what might be going on with this case (I gave him the docket number), here is the direct quote from the email I received:
"The most common explanation is that the Court has denied review, and someone is writing a dissent from denial. But, when it gets relisted that many times, I have no idea what is going on. The case would not be relisted if it were being held for the outcome in some other case. It would not be relisted if a definitive vote had been taken on it, and no one was writing. It does not seem to me to be all that complicated a case, so I cannot fathom why one or more Justices is having trouble with it.
I have seen cases listed 7 or 8 times, but this is getting to be a bit ridiculous."
Then, I got a second opinion from another contributor and here it is:
"One of two things is happening. The Court is either summarily reversing the decision below or one or more of the Justices is writing a dissent from the denial of certiorari.
No real way of knowing which one. It still remains possible after all this time that the Court will grant certiorari."
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