Comments on: Court to hear Texas redistricting cases

By: Kent Scheidegger

Kent Scheidegger — Wed, 14 Dec 2005 21:10:05 +0000

David Moran finds it “disturbing” that a party who has waived the opportunity to respond provided in the rules might not be given a second chance. I see nothing disturbing about it and agree with Richard Samp that it should be the norm. If the petition is indeed “wholly meritless,” it takes relatively little time and money for an attorney familiar with the case to say why. However, as has been pointed out several times already, the unique status of reapportionment cases makes it unlikely that this case is a harbinger of change in this area.

By: Paul Wolfson

Paul Wolfson — Mon, 12 Dec 2005 22:12:25 +0000

As for the Court’s failure to ask for a response from Texas, it bears note that the case is before the Court on mandatory appeal, not cert. So the question before the Court was not whether it would accept jurisdiction in its discretion, but whether, since it had jurisdiction, it would summarily affirm or note for plenary consideration. It was Texas’ burden to file a motion to affirm summarily and thereby convince the Court that it need not take the case for plenary consideration. Having not done so, Texas ran the risk that the Court would simply exercise its mandatory jursidiction and hear the case. I don’t think this portents any change in the practice on the certiorari docket.

By: Adam White

Adam White — Mon, 12 Dec 2005 21:41:05 +0000

This certainly will up the ante in the Democrats’ interrogation of Alito for the “one man, one vote” memo. Pushing hard may help achieve one of two Dem-friendly outcomes:

1. Get him to speak so as to guarantee his recusal,

or, more likely,

2. Get him to refuse to speak to this issue of pending importance, and then use his silence on this heated issue as grounds for voting against him, or for not voting at all. (Biden would be particularly apt to demand disclosure of his views if a vote is to go forward.)

By: Marc Shepherd

Marc Shepherd — Mon, 12 Dec 2005 18:17:07 +0000

It is generally government (local or federal) respondents/appellees that waive a response, and with good reason. The federal and state governments are respondents/appellees in thousands of Supreme Court cases per year, and the Court denies review in the vast majority of them. It would be a waste of resources if the government responded every time, as many of those cases stand no chance of being heard.

Texas may have misjudged the legal landscape in this instance, but I doubt that we’re going to start seeing the state and federal governments responding to every petition. Nor do I think the Justices will start granting a lot of cases without requesting a government response. The Justices are well aware of the systemic strain that would be caused if government respondents were routinely “penalized” for initially waiving their right to respond.

Of course, the post above presupposes that the outcome would have been different had Texas responded, and that may not be the case.

By: David Gossett

David Gossett — Mon, 12 Dec 2005 18:00:28 +0000

I wouldn’t go so far as to say it “warms my heart,” but the grant without calling for a response certainly is notable; I’ve been trying, so far unsuccessfully, to figure out when the Court last did so. Does anyone else know?

By: David Moran

David Moran — Mon, 12 Dec 2005 17:46:19 +0000

Have there been other recent cases in which the Court has granted review without ordering a response from a Respondent that had waived the right to respond? If so, I would find that disturbing.

There are often good reasons to waive a response, and I’ve done so a number of times. The best reason is that it’s a waste of time and money to respond to a wholly meritless petition. If some members of the Court disagree with my judgment that a petition is not even worth a response, I would certainly hope that I would get a chance before the petition is granted to point out why the case has no merit (or, even worse, a jurisdictional defect).

By: Richard Samp

Richard Samp — Mon, 12 Dec 2005 17:23:34 +0000

It warms my heart to see the Court grant review in a case without first giving a Respondent/ Appellee that has waived a response one last opportunity to respond. I get the impression that more and more Respondents view waiver as a no-risk strategy that could well have an up-side (in that waiver may keep the case’s profile much lower) but has no down-side (in that the Respondent will always have an opportunity to respond if the Court is seriously contempating granting review). Today’s action may give future Respondents serious pause about the accuracy of the second half of that analysis.