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Tuesday, May 30, 2017

SCOTUS: A Big Day For Justice Gorsuch & The First Affirmance By An Equally Divided Court

Howard posed some questions to kick off the symposium on the Supreme Court's OT 2016. I'll start by half-seriously answering the question about what cert petitions I'm watching and why.

The petition I want to flag (which the Court also acted on this morning) is Jaffe v. Roberts.  The "Roberts" listed as the respondent in the case caption is Chief Justice John G. Roberts, Jr.  The other respondents in the case are Justices Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, and Kagan, and former Justice Scalia.  The case challenges the Justices' failure to grant certiorari in a prior case filed by Mr. Jaffe.

This morning, the Court resolved the petition.  But because all of the Justices just listed are respondents in the case, they couldn't participate in its resolution.  And the order indicates that the Chief Justice and Justices Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor and Kagan took no part in the consideration of the petition.  That left Justice Gorsuch.  And he (acting as "the Court," per the order),  "affirmed the judgment ... with the same effect as upon affirmative by an equally divided Court."

Two other quick things to flag about the order and the case.  

One, today was the first day we got an opinion in a case in which Justice Gorsuch participated (BNSF Railway v. Tyrrell).  But we also got an affirm-by-an-equally-divided Justice Gorsuch opinion.  Who would have thought that Jaffe v. Roberts would be the first affirm-by-an-equally-divided Court opinion from OT2016?  

Two, the docket page lists the counsel in the case.  The counsel for respondents is (unsurprisingly) Acting Solicitor General Jeff Wall.  Wall clerked for Justice Thomas.  Is this the first case where a former clerk represented the Justice for whom he or she clerked?  (I haven't bothered to try and look up the answer to the question, but just wanted to pose it.)

Posted by Leah Litman on May 30, 2017 at 12:14 PM in 2018 End of Term | Permalink


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