This is definitely not the biggest story coming out of the mound of opinions that the Court released today, but I wanted to briefly close the loop on my post from a few days ago on Justice Ginsburg’s concurrence in the denial of certiorari in Hittson v. Chatman. In the post, I suggested that Ginsburg’s Hittson opinion was a signal that Ylst v. Nunnemaker is still good law. But now, just three days later, the Court issued a majority opinion
Comments
Josh, That part doesn’t strike me as so odd, since it requires more votes, which might not have been forthcoming.
Posted by: Steve H | Jun 19, 2015 9:59:03 AM
It also seems odd that the Court would deny cert outright instead of just holding it for another week and then GVR-ing it in light of Brumfield
Posted by: Josh Block | Jun 19, 2015 9:52:07 AM
I’m not sure it’s so unusual to hold one case for another that is “unrelated.” I suppose using a “relist” to do the work of a “hold” might be bad form, although we’re talking about a tiny delay here.
Posted by: Steve H | Jun 19, 2015 1:21:44 AM
Also, Will, I’m dubious that such a norm exists, since I think it’s quite routine to delay the issuance of opinion 1 simply because it cites unrelated opinion 2 for some proposition and opinion 2 isn’t yet ready for issuance.
Posted by: Hash | Jun 19, 2015 12:58:20 AM
@Doug: for the reasons stated by RBG in her opinion concurring in the denial of cert: the result would have been the same in Hittson had the eleventh circuit looked through. Also because an en banc petition is pending. (In fact, according to pacer, the mandate has been held.)
Posted by: KLK | Jun 19, 2015 12:08:54 AM
Why deny cert, Will? They could have gvred it.
Posted by: Doug | Jun 18, 2015 10:32:00 PM
That might well be right, or ought to be right. But note that RBG presumably drafted her opinion as a signal from the outset. And the signal pertained to cases other than the one she was writing in. So in spending time writing her opinion and having the case repeatedly relisted, she might already have pushed against the asserted norm. That is, she postponed resolving the cert case to make the signal, and so postponing it a little more to make the signal better seems like more of the same. Or arguably so, at any rate.
Posted by: Richard | Jun 18, 2015 10:19:10 PM
Maybe there’s a norm that it would be an inappropriate use of the relisting power to hold a cert. denial for an unrelated case?
Posted by: Will Baude | Jun 18, 2015 9:51:17 PM