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Tuesday, April 18, 2017

Notes on Monday's SCOTUS arguments

I covered two of yesterday's arguments for SCOTUSBlog--in Perry v. MSPB (considering where review is had for MSPB decisions) and Town of Chester v. Laroe Estates (considering whether intervenors must have standing). Some additional thoughts below.

First, the story for many commentators about Perry was how engaged Justice Gorsuch was with both sides in the first case on his first argument day (it is not clear from the transcript, but reports are he asked his first question about ten minutes in). What has been discussed less is that Gorsuch seemed poised to rejected everything the Court had said previously about mixed cases. While the Court as recently as five years ago in Kloeckner v. Solis had stated that mixed cases go entirely to a district court, Gorsuch pushed both sides to the conclusion that the CSRA does not authorize district courts to review MSPB decisions and that mixed cases must be split up, with discrimination issues going to the district court and CSRA issues to the Federal Circuit. It is not clear where and whether he will follow that position. I previously, mainly jokingly, predicted that Gorsuch would write Perry, because it seemed the kind of case assigned to the junior-most Justice and I expected it to be unanimous, in light of Kloeckner. I may prove partially correct about him writing--but it may be a solo dissent.

Second, Gorsuch showed a distinct style on the bench (I cannot tell the tone of that style from the transcript--I am anxious to listen to the audo). He is well prepared and able to dig into the minutiae of the case, including statutory language (contrast that with the 10,00o-foot professorial musings of Justice Breyer). And he does not let attorneys get away with half-answers or skirting his questions; he keeps coming back and demanding answers. An exchange in Town of Chester with respondent's counsel is illustrative. Gorsuch was asking about the line between an intervenor seeking his own relief and seeking to benefit from the same judgment that a plaintiff with standing is seeking. Counsel argued it depends on the scope of the judgment sought, in light of the "one good plaintiff" rule. When counsel tried to pivot, Gorsuch apologized for interrupting, but said "[i]if you would just answer my question, I would be grateful," later insisting "that's not a trick question." When counsel again returned to the one good plaintiff, Gorsuch said "I'll let you go."

Third, Town of Chester silently ties into debates about the proper scope of judgment. Everyone was getting tripped up by the "one good plaintiff" rule, under which a non-class judgment can work to the benefit of multiple plaintiffs so long as one has standing. But that rule may be problematic under Article III, as Aaron Bruhl argued in an amicus brief and a forthcoming article. And it may be problematic as a matter of the law of judgments, where a court should be limited to issuing a judgment that directly benefits only a named plaintiff (and a named plaintiff must, under Article III, have standing). The one good plaintiff rule reflects the same misunderstanding of judgments and injunctions that allows for nationwide/universal injunctions.

Fourth, the Justices keep dancing around the connection between standing and merits, without seeing (or wanting to see) the identity between them. In Chester, Justice Alito asked respondent's counsel for an example of a case in which an intervenor lacked standing. Counsel responded with Trbovich v. UMW, in which a union member, who would not have been allowed to sue under the LMRDA, was allowed to intervene. To which Alito responded "that's not an Article III question. That's a merits question. That's the scope of the claim." That it is, Justice Alito. That it is.

Posted by Howard Wasserman on April 18, 2017 at 01:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


"I guess I'm struck by the confidence of a Justice who would say on his first day on the job that all eight of his colleagues were "mak[ing] it up" (p. 26 of the transcript) in a case they decided a few terms ago"

Sometimes cases need to be overturned just a couple years later, the pledge case, for example.
Or how Breyer was ready to overturn Heller in McDonald, due to his claim of whole new historical evidence.

Posted by: Pledging | Apr 18, 2017 9:24:43 PM

This sort of thing wasn't seen in a positive sense from some of us who oppose his nomination, including during the hearings. It flags the answer of one of the five or whatever questions posed by a professor here recently might be 'yes, he will be more likely to overturn precedent.'

But, you know, small sample size and all that.

Posted by: Joe | Apr 18, 2017 8:17:31 PM

I guess I'm struck by the confidence of a Justice who would say on his first day on the job that all eight of his colleagues were "mak[ing] it up" (p. 26 of the transcript) in a case they decided a few terms ago, when he himself would later acknowledge that whether he's right depends on a very difficult parsing of the phrase "subject to" that the assistant to the SG couldn't even understand (see p. 49 of the transcript). My favorite part is where he asks (at p. 50) if the government "has any authority for th[e] proposition . . . besides Kloeckner" that this phrase means what the Court recently and unanimously said it did in Kloeckner, when the government wasn't there to defend Kloeckner, a case it lost, but to distinguish it and quite obviously wouldn't be prepared to defend, in that detail, precedent that everyone in the case has treated as a given.

Posted by: Asher Steinberg | Apr 18, 2017 7:43:47 PM

He might have a textual point--hard to tell, given how poorly written the statute is. He does not have a purposivist point--the goal of mixed cases is to find a way to keep everything together.

Posted by: Howard Wasserman | Apr 18, 2017 3:54:48 PM

Does Gorsuch have a point about Kloeckner or is this a pretty eccentric view? I was fairly surprised that he would ask what seemed like at least a dozen questions in his first argument about essentially overruling a 5-year-old unanimous decision that both parties treated as a given, but I couldn't tell how oddball that position was from the transcript. Glancing at Kloeckner, it does seem tolerably clear, given the cross-reference in 7703(b)(2) to 7702, and what 7702 says about Board review of mixed cases, that a mixed case goes in full to district court (subject to niggling about what a mixed case is). It also appears, from reading Kloeckner, that even in Kloeckner the government agreed that at least mixed cases that were decided on the merits went in full to district court.

Posted by: Asher Steinberg | Apr 18, 2017 1:33:41 PM

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