The US Supreme Court Thread

Could be he's doing that purposefully or just as likely that he doesn't care how it actually works.

 

No disagreement here. Same for Kavanaugh who got a basic fact wrong about Vermont election law two weeks ago.

 

He is, at least that's what I've heard about him. It's embarrassing for the CJ, I'm sure. But I don't know to what extent his chambers goes over other chambers' opinions with a microscope. It's much more embarrassing for Kavanaugh and his clerks. Messing up a basic fact about something like that should never be missed during editing.

 

Blame the intern.

 

LOL

If you want to talk about people who live in an elite bubble it's senior appeals judges - not all but definitely some

 

I don't really get how that would have happened

Isn't the appeal and subsequent judgement related to the pleadings under argument? Or can the Justice introduce stuff that the parties did not argue and was not put to them?

 

Yes.

This is what happens when you promote poor quality people.

 

It's absolutely the Justice's job to do a final round of editing --- that is if they care about their work. But one thing needs to be clarified --- these are not interns. They are law school graduates, usually at least a year out, having already clerked for a circuit court judge or a very high level state appellate court in rare instances. Additionally, they are almost always highly ranked in their class and on their school's law review. They shouldn't be making these kinds of mistakes.

 

I'm not really sure what you're asking. The incorrect statement about Vermont's election laws in Kavanuagh's concurrence wasn't the focus of the issue on appeal, which was about Pennsylvania's law. Kavanaugh mentioned Vermont and a couple of other states as a comparison of states who had made changes to address the pandemic versus those that hadn't. He got the facts about Vermont wrong, but the issue on appeal didn't hinge on that.

 

Yes - but where was he getting that stuff from?

Presumably not the pleadings?

 

Probably not. So?

 

I was wondering to what extent a justice goes free range. Or whether this example was made before the court and then he got the facts wrong when he included it?

I get that it wasn't a key issue in the case.

 

The opinion with the error (which was later corrected) is Kavanaugh’s 18-page concurrence in denial of a stay.
https://www.supremecourt.gov/opinions/20pdf/20a66_new_m6io.pdf#page=6
Given the time-pressure in considering a stay motion, errors like this are all but inevitable where a Justice thinks he needs to write 18 pages.
Roberts’ concurrence is 1 paragraph.

 

Yeah, I've read it. And I find the dissent more persuasive.

 

It would be very interesting to know where he included this nonsense from. I guess from the GOP lawyers pleadings? It is strange choice of language ...

 

https://twitter.com/GOP

 

Who knows, but Kagan specifically calls him out on this very passage. As for your earlier question: it wouldn't be considered "going free range" to take judicial notice of what the law is in other states, at least not in typical U.S. appellate advocacy. Here, Kavanaugh is pointing out other states haven't changed their deadlines despite the pandemic, as a contrast to what the District Court said should happen in Wisconsin (I misspoke earlier when I said Pa.). He was just wrong factually in using Vermont as such an example. But the fact that he provided examples of what other states have done/are doing wouldn't be considered improperly going outside the record. It's dicta, in that it doesn't ultimately answer what exactly the Wisconsin legislature did or did not do here, but it's not out of bounds.

Btw, if you want an example of SCOTUS improperly going beyond the record on appeal, look no further than Citizens United. It's ridiculous how the majority bent over backwards to address whether the statute at issue was facially unconstitutional when the plaintiffs specifically had only made an "as applied" challenge. Stevens's dissent hammers on this and complains that the majority ruled on a facial challenge without ANY trial court record on the issue, because it wasn't an issue below. In normal circumstances, the proper way to handle such would be to remand the case to the trial court so that a record on that issue could be created.

 

Thanks Yoss

Reading through it - it would seem likely counsel made this point? As it would seem like a good argument as to why the court shouldn't change the deadline, given other states actually did, therefore presumably WI did not want to. But I agree it is Obiter

In any event a bad look!

 

Yeah, the look is "he likes beer" and maybe his clerks do too. Luckily, given how things currently stand in Wisconsin, Kavanaugh's crap concurrence shouldn't matter.