En banc Decision in Peruta -- a loss

esqappellate said:

You know, the strategy considerations on this are really interesting. It is easy to see why petitioner sought (and received) two extensions: they want a 9 member court, especially after the election results. California is in a different position. They can ask for and easily get two extensions for their brief in opp. Of course, they don't want a 9 member court, precisely for the reasons you give (4-4 court unlikely to grant cert). But it takes only 4 to grant and that 4 might calculate that it will be a 9 member court by the time it goes to argument. A 4-4 split on a decision will affirm the 9th Circuit by equally divided vote (but it is not precedent). So, I tend to agree that the best approach for Cal. is to file the Op quickly. But that means that they really need to act quickly and that's hard for them as the cert. petition will likely be very good and it will be filed by Clement who is part of the elite SCT bar. Clement petitions are *always* read carefully and carry weight. And merely getting a quick op. filed may not help them much as the Court can easily simply relist the petition for as long as they want, and even carry it over to the next Term (unusual but it can happen). Indeed, if the 9th Justice is confirmed after argument, the most likely scenario is to reschedule the case for reargument next Term. So, if you are Cal, what do you do? I am guessing that they may opt for one extension simply because they won't be able to get the op. done in time. I expect that the President-elect will nominate a Justice very soon after after inauguration, probable well before an Op. is due. Who he nominates may play a role too, if only because it means that the Op. will have to be tailored for that reality. This will be fun to watch.

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ShafTed said:

Isn't there also a new CA AG, since Harris is now in the US Congress? I'm sure whoever replaces her is still just as big an anti, it is Kommiefornia after all, but maybe inexperienced and ineffective enough to not be able to provide effective resistance to the US Consrtitution. Just a thought.

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ShafTed said:

Isn't there also a new CA AG, since Harris is now in the US Congress? I'm sure whoever replaces her is still just as big an anti, it is Kommiefornia after all, but maybe inexperienced and ineffective enough to not be able to provide effective resistance to the US Consrtitution. Just a thought.

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MrNiceGuy said:

Reading the tea leaves in full amateur mode, I would assume there's got to be a nearly guaranteed 4-4 split right now. If 5 of the current justices are leaning opposed, cert gets denied because nobody on the court has an interest in delaying the inevitable due to the fact that Trump's presumably pro-2A SCOTUS appointment won't make a lick of difference. But if it's 4-4 today and you're leaning pro-2A, you enable every delay possible and necessary to ensure that new pro-2A justice is on the court providing the tie-breaker.

I'm presuming here that the justices follow the really big, contentious cases (not just 2A related) when it's obvious they're coming their way and that they form at least some opinions on those cases based upon facts established and arguments made during the journey through the lower courts. They can be "impartial jurists" all day, but they're human beings with views and interests and I can't imagine they lock themselves in a closet when it comes to big court battles inevitably reaching their desks. I choose to view this as a great sign for us and for the country.

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Kharn said:

I really hope the 9th's arrogance costs California dearly.

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