Your Order Is Up: Order Day At The Supreme Court

Since Monday, October 9, was observed as Columbus Day, the Supreme Court did not issue any orders until Tuesday (10/17).  You can find the order list on the Supreme Court website (under "Case Documents" then "Orders of the Court"). Unless you have a case pending, or have a particular interest in a case, or are just a Supreme Court nerd (guilty) you probably won't ever look at an order list.  But since you are following this blog, it is likely that you could fall in category two: some case has grabbed your attention.  (And you can search for a particular case by name or docket number under "Docket Search").  I think a quick review of what the Court does with its orders, and how to read an order list if you ever find yourself looking at one, is useful. I know, a little bit "inside baseball", which I don't often do, but you ought to get a flavor of how the highest court in the land functions.

Tuesday's Order document covered 13 pages. First, there are Summary Dispositions where the Court grants a petition for certiorari (review), vacates the judgment of the court below (strips the lower court ruling of effect), and remands for further proceedings, most often in light of a Supreme Court opinion that has come down very recently.  These are often called GVRs: Grant Vacate Remand. 

Next, there are the Orders in Pending Cases, where the court deals with cases, already before the Court, that have housekeeping issues (pending motions, for example). Usually, these are minor issues but it doesn't mean these are minor cases. In fact, there are two original jurisdiction cases before the Court (more on that in a bit). Also lumped in with these orders are the very interesting CVSGs: Call for the View of the Solicitor General.  These are cases in which the government is not a party but the Court wants to know what the government thinks about the law and issues, so it invites the Solicitor General to file a statement. (The Solicitor General's office (part of the Justice Department) argues all the government's cases before the Supreme Court).  A CVSG is technically an invitation, but it is never refused.  I said "interesting" because the Court feels there are important issues and it thinks the Solicitor General and his office can help them sort them out.  It's a high powered bunch of appellate lawyers and their opinion carries great weight with the Court, though they don't always win.

Finally, there are 12 1/2 pages of denials: certiorari (petitions for review), rehearings, habeas corpus, and other writs than the Court can issue.  The one thing notable in this part of the order (other than a certain justice not taking part in a case) is the occasional dissent from a denial of cert, sometimes with a statement.  While not dispositive (it is, after all, a dissent) it can be instructive as to how one or more justices are feeling about an issue.  For example, many commentators have seen Justice Breyer's dissents in death penalty cert petitions as indicative of his growing unease about this issue.

I mentioned original jurisdiction cases.  Yes, a case can start in the Supreme Court.  Like all issues of federal jurisdiction (that is, can a court hear and decide a case) original jurisdiction in the Supreme Court is rooted in the Constitution (Article III, Section 2) and it is governed by statute, in this case, 28 U.S.C. §1251, and Supreme Court Rule 17.  Not only can the Supreme Court hear these cases, they are the only court that can (what is called original and exclusive jurisdiction). These cases (about one or two a year) are usually one state suing another, usually over property rights, most notably water.  The Court appoints a Special Master to hear evidence, determine facts, and recommend a decision.  The Court then reviews the Master's decisions and the parties legal arguments.  And if there are objections by the parties to the Special Master's report, the Court can hear oral argument.  

One original case that got the press room smiling (on what otherwise was a slow day) was the order in Florida v. Georgia, 142 Orig., (that is, Original Docket), setting oral argument "in due course" for objections to the Special Masters Report.  Why smiling?  Because it sounds like one of the biggest college football games of the year, which features the "World's Largest Cocktail Party", and that it is a long-running dispute about...water.  

And that's a great segue into my next post: Place Your Bets (Maybe).



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