I had the good fortune and privilege of attending oral arguments this morning at the U.S. Supreme Court. I was there in particular to listen to the argument
Comments
Professor – Thanks very much–for the great amicus brief and summary above. As a petitioner and 1L, it was thrilling to be in the courtroom. This week our Civ Pro class has been covering the difference between the Rule 11 and Rule 8 standards–very much in line with points made by several Justices. I don’t see much chance of a flood of new cases if the Justices opt to make Rule 11 the standard for substantiality, as that is analogous to the Court’s current precedents here–which are followed by all Circuits except the Fourth (mine!). It is only the Fourth that is using Rule 8 as the substantiality standard, so it is only the Fourth Circuit states that could provide a new flood.
Posted by: Steve Shapiro | Nov 5, 2015 1:46:36 PM
I was at argument too. I thought Maryland’s lawyer’s joke about added value went over well; he got a huge laugh from Thomas, which was fun to see. There’s really no good answer to that question, besides apologizing; the cases he was talking about aren’t new. On your prediction, I saw unanimity too, until Alito started suggesting that partisan gerrymandering claims are all pretty frivolous and that three-judge courts accentuate appearances of partisanship, while Roberts and Breyer seemed genuinely worried about being forced to hear a slew of substantial but doomed partisan gerrymandering cases. I wouldn’t be surprised if Thomas shared similar views, and I’m not sure if Kennedy would enjoy rewriting his concurring opinion in Vieth several times. Of course, they could avoid these difficulties by summarily affirming in cases that do present substantial questions and just saying they don’t, but that could become more difficult if they write an opinion in this case saying that substantial just means non-frivolous. A 5-4 decision affirming the Fourth Circuit, then, wouldn’t shock me, though I think reversals by various margins (8-1 with Alito in dissent, 7-2 with Alito and Roberts in dissent, 6-3 with those two and Breyer in dissent) are more likely scenarios.
Posted by: Asher Steinberg | Nov 5, 2015 10:18:26 AM