Breadcrumbs in a New Term

On November 6th, the Court released its first signed majority opinion of the term authored by Justice Ginsburg.  This is Ginsburg’s third consecutive term as author of the Court’s first signed majority opinion.  In a concise unanimous decision (8-0 since Kavanaugh did not participate), the Court in Mount Lemmon Fire District v. Guido held that…

Supreme Court All-Stars 2013-2017

Success in the Supreme Court is hard to define because it can be viewed in a variety of ways. Few attorneys have the opportunity to try cases there and even fewer argue multiple cases.  Part of success therefore is simply getting a case or cases to the Court. Once the Court agrees to hear a…

Expect Kavanaugh To Shift the Court Right. How Far No One Knows.

The discussion over who will fill the Supreme Court vacancy has dominated much of the political conversation since Justice Kennedy announced his retirement from the Supreme Court on June 27.  Last night, Judge Brett Kavanaugh, an obvious choice and the one I predicted in December 2017, was announced as nominee.  When Kennedy’s retirement rumors previously circulated,…

The Invitation List

On January 18th, the Supreme Court released a short order requesting O’Melveny & Myers attorney Anton Metlitsky brief and argue the case of Lucia v. SEC supporting the decision below. The case examines whether administrative law judges of the Securities and Exchange Commission are officers of the United States within the meaning of the appointments clause….

Looking Back to Make Sense of the Court’s (Relatively) Light Workload

There have been interesting discussions as of late regarding the Supreme Court’s light workload and how it is getting even lighter.  Evidence of this decline can be found in quantitative analyses of the Supreme Court’s work.  It is a not a subject addressed by any member of the Court.  The Chief Justice, for example, did mention…

A New Era in SCOTUS Textualism

Legal interpretation begins with a legal text. At least in theory it does.  While in practice this is not always the case, textualism has become synonymous with conservatism in recent Court eras primarily due to Justice Scalia’s reliance on the language of statutory texts.  In practice, a textualist approach is not limited by judicial ideology and…

A Record Set by the OSG During the Obama Years

The Solicitor General’s Office (OSG) has a special relationship with the Supreme Court.  In the role of adviser the Solicitor General is often referred to as the 10th Justice.  The OSG enjoys much higher than average success in bringing cases to the Court and is even asked to give its opinions on whether the Court should…

The Court’s Recent Lack of Support for the Federal Government’s Agenda

This is the first of a series of two posts examining the federal government’s litigation in the Supreme Court. While this post looks at the last several terms of government litigation, the next will analyze the government’s upcoming cases.   The federal government, through the Office of the Solicitor General (OSG), is the most frequent…

The Three Shifts of Chief Justice John Roberts

Chief Justice John Roberts’ resume is not remarkably unique for a Supreme Court Justice. That is not to say that it is not impressive. There is scant evidence of an imperfection from his Harvard undergrad and law school education, appellate and Supreme Court clerkships, work in the Solicitor General’s Office, big firm law practice, and…

Still A Conservative Court

It’s a new day for the Supreme Court. We are in uncharted territory with this current Supreme Court vacancy with no end in sight.  In some respect this has led to a liberal shift in the Court’s general demeanor – especially since this is the first time in decades that conservative Justices have not held a majority…

Justice Ginsburg: Political and Efficient All Wrapped Up in One

Once on the Supreme Court the Justices have a few essential obligations. Add to this life-tenure and lots of free time while the Court is in recess and the job sounds pretty enviable. The Justices still must hear oral arguments, meet and vote to decide cases, and grant new cases for the Court to hear…

Quick Note: Roberts Court Majority Opinion Assignment

Who decides which Justice authors a given majority opinion?  There is, of course, the necessity that this Justice is part of the majority coalition. Beyond that though there are two main rules.  The first is that the Chief Justice assigns the opinion if the Chief is a member of the majority.  If the Chief is…