We just don’t know much right now. I would be curious if Roberts on the whole writes a lot of cert denial dissents on the whole. If he doesn’t typically do it then it might explain why he’s been basically silent since McDonald.
5/11 scotus briefs
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We just don’t know much right now. I would be curious if Roberts on the whole writes a lot of cert denial dissents on the whole. If he doesn’t typically do it then it might explain why he’s been basically silent since McDonald.
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
That may be what he was aiming for, but they did not explicitly state this. It kind of irrelevant anyway. The lower courts have not adopted this approach, instead adopting intermediate scrutiny. SCOTUS has not stepped in to adopt a different approach.
Text history and tradition is not as clear cut as you seem to suggest. Look at the Peruta en banc opinion. It appears on its surface to be exactly that, text history and tradition. It appears to be well on its way to deny not just concealed carry but any type of carry. The problem with the en banc opinion is that it denyed context and wound up taking everything out of context.
Any approach taken by the court can be abused. The problem is really how the cases are argued. Roberts can't really correct that.
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
Seems very unusual.
It is unusual. But their plate is really full now, especially after hearing the April cases in May. The law clerks are killing themselves now
wjackcooper
Active Member
- Feb 9, 2011
- 689
Interesting read despite its source:*
Regards
Jack
*10 cases that could change how the Supreme Court looks at the Second Amendment :: WRAL.com
https://www.wral.com/10-cases-that-...court-looks-at-the-second-amendment/19114233/
Regards
Jack
*10 cases that could change how the Supreme Court looks at the Second Amendment :: WRAL.com
https://www.wral.com/10-cases-that-...court-looks-at-the-second-amendment/19114233/
Kharn
Ultimate Member
Come on, at least a per curiam of "we were very clear about 'text, history, and tradition,' not the 2-step." The wait is getting ridiculous.
At least I am not the only one on drugs.
I do not think the court is willing to pull another Caetano. We will most likely end this session with no case before the court.
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
I am hoping that the reason they are relisting the cases multiple times is that they are really busy due to the adjustment in schedules and not the fact that someone is writing a denial of decent.
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
Ditto here. I would be amazed if they denied cert and simply walked away from the issues presented. They have until the end of June to decide. If they grant cert in one case, the rest then can be continued to be held. But holding them all over until next Term is *very* unlikely. I mean several have been already held over from last Term. So, the choice is a cert denial in all the cases or a cert grant in one and hold the rest. IMHO.
danb
dont be a dumbass
4 of them know how the other 5 will vote, because before granting cert they will already have exchanged and debated briefs.
So if there is no cert grant, Roberts is the problem.
We got a cert grant in NYSRPA, a surprise to many people. We also won that case, albeit ugly and in the worst way. So we will probably get a grant.
There is only one case where someone filed a supplemental "pick me" brief. And, I don't think NJ responded to it.... but looking over 10 cases takes time and none of the Justices will take Clement's word for it. Although in the end, I think that Clement will get another at-bat. Smart money never bets against Clement!
So if there is no cert grant, Roberts is the problem.
We got a cert grant in NYSRPA, a surprise to many people. We also won that case, albeit ugly and in the worst way. So we will probably get a grant.
There is only one case where someone filed a supplemental "pick me" brief. And, I don't think NJ responded to it.... but looking over 10 cases takes time and none of the Justices will take Clement's word for it. Although in the end, I think that Clement will get another at-bat. Smart money never bets against Clement!
Not only that but Clement is well known before the court from his past arguments and to tell the truth to scotus honestly as well.
If they can’t get Roberts to vote to hear ANY of the cases before them then he’s completely spineless and not doing the court any favors. The issues will simply not go away and they will continue to have cases continue to be at their doorstep until they give some guidance. There is plenty to pick from right now, so no reason to wait around another few years for the “right” case.
Kicking the can down the road seems a prime judicial pastime.
Raineman
On the 3rd box
Appears the "3rd box" is fast becoming a non-viable option.
Wonder if they know that, and if its by design?
Wonder if they know that, and if its by design?
This case has been kicked, and kicked, and kicked some more down the road:
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-9674.html
Steel Hunter
Active Member
- Nov 10, 2019
- 552
Whoa... 19 relists. That is definitely not something I want to see for this group of 10 cases. But... still better than a denial entirely.
wjackcooper
Active Member
- Feb 9, 2011
- 689
Originally Posted by danb
4 of them know how the other 5 will vote, because before granting cert they will already have exchanged and debated briefs.
Yep.
Few if any Justices, or for that matter informed, prepared Judges are persuaded by any courtroom argument, except in so far as it supports a forgone conclusion. As once put another way by a candid judge at a bench conference “counsel you may be heard, but you will not be listened to.”
Regards
Jack
4 of them know how the other 5 will vote, because before granting cert they will already have exchanged and debated briefs.
Yep.
Few if any Justices, or for that matter informed, prepared Judges are persuaded by any courtroom argument, except in so far as it supports a forgone conclusion. As once put another way by a candid judge at a bench conference “counsel you may be heard, but you will not be listened to.”
Regards
Jack
I'd love to know exactly what goes on inside those closed doors. Do they even get into the merits of these cases aside from, is the case a good vehicle? (i.e. is there a split, is the ruling below so contrary to precedent that it cannot stand,exc.)
So like if they were discussing the Rogers case would a judge essentially say they don't like people carrying guns in public so don't take the case? I tend to think the answer would be no.
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
I am not sure why you think they already decided the case before they accept it.
According to https://www.scotusblog.com/reference/educational-resources/supreme-court-procedure/ a memo gets written summarizing the case and makes a recommendation as to grant or deny cert.
Once the Justices retire their papers can become public knowledge. https://www.scotusblog.com/2017/02/neil-gorsuch-law-clerk/ gives some examples.
They certainly have dismissed cases after they granted them because they later find out the case is not what they thought. https://www.scotusblog.com/2019/04/practice-pointer-digging-into-digs/ While totally dismissing a case is very unusual, it is not uncommon for individual justices to change their vote even after oral arguments.
It certainly seems how the case will clarify broader legal issues is of primary concern in deciding which cases to grant.
The problem that I see with the 2A cases is that they do not do a good job of clarifying the broader legal issues. All they do is say we should stick with Heller without really explaining why the lower courts are misusing intermediate scrutiny.
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
That is not exactly correct, the typical courtroom argument simply rehashes the briefs. It is not really persuasive because nothing new is said.
Oral arguments can be used to clarify aspects of the case, which can change the outcome.
While they have canceled many oral arguments in today's social distancing environment, they have not canceled them all. This demonstrates that they can be useful., but are not needed for many cases.
I thought the argument was that intermediate scrutiny was the wrong standard.
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