Tuesday, October 13, 2009

Supreme Court Reflections, Part 1 – Introduction

In this series of posts, I will highlight what I think were the most intriguing passages in the oral argument at the Supreme Court last Wednesday in Reed Elsevier v. Muchnick. The full transcript, including the input of six justices, is at http://supremecourtus.gov/oral_arguments/argument_transcripts/08-103.pdf. (Sotomayor, who had recused herself, was not there; Thomas and Alito said nothing.)

First, a disclaimer on what I don’t intend to be conveying with these observations. I do not presume to be predicting how the justices will rule. Anyone who answers that question with much more than “we shall see” is blowing smoke. For one thing, from the outside we have no idea of the weight of oral argument in the overall deliberation.

Second, experienced Supreme Court watchers will tell you that when a justice raises a point, it is best understood as part of a conversation with the other eight justices, rather than necessarily as a direct address to the advocate to whom he is speaking. When such indirect dialogue occurs, the conversation could be about this case; or if it could be about the general drift of the Court in a family of cases; or it could be about something else altogether. Again, who are we to say? The final decisions themselves can be hard enough to interpret.

The final reason I’m not making a prediction is simply this: I’m not sure what would constitute “winning” with respect to the specific question on jurisdiction that the Supreme Court accepted for review. If the Second Circuit ruling is upheld, the settlement is dead. If the Second Circuit is overruled, it will face, on remand, review of the merits of the objectors’ case against the settlement. If we were in the Wild West, this settlement would be summarized as “wanted, dead or alive.”


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