The Texas Redistricting Cases and the Failure to Call for a Response
There has been an active exchange in the comments regarding the Court’s failure to call for a response to the jurisdictional statements in the case before noting probable jurisdiction. My bet is that the Court took that step not because it didn’t want to hear from Texas, but because calling for a response would have precluded hearing arguments in March 2006 as the Court intends. Given the numerous relists, it seems likely that the Court secured enough votes to note jurisdiction, or finally agreed on which questions to consider, only at last week’s conference. By that time, it was simply too late. Given that the posture of the cases is relatively clear, the Court could be relatively certain that there was no unseen jurisdictional obstacle to review that would have been pointed out in a motion to affirm.
If there were a jurisdictional obstacle, wouldn’t affirmance be precluded? That sounds more like grounds for a motion to dismiss, to me.
Comment by Peter G — December 14, 2005 @ 8:38 pm
Certainly sounds plausible to me.
Comment by Orin Kerr — December 14, 2005 @ 10:22 pm
Does the rule that it only takes one justice to call for a response not apply to mandatory appeals? Otherwise, I wonder why whoever was writing the dissent from the summary affirmance, or otherwise pushing for probable jurisdiction to be noted, didn’t just call for the response before the first relist?
Comment by Sam B. — December 15, 2005 @ 12:26 pm
Your hypothesis regarding why the Court acted without requesting a response from Texas makes a lot of sense. But the question remains, why did Texas waive its right to respond? It cannot be that Texas decided to conserve resources because it thought the appeal so frivolous that there was no possibility that the Court would agree to hear the appeal on the merits. Rather, Texas must have concluded that, although there was a substantial possibility that the Court would hear the case, the odds of it doing so might be reduced somewhat if Texas waived its right to respond; and that one way or the other it would have a chance to respond before a decision was made to grant review. Based on what happened, Texas clearly miscalculated; and I suspect that future respondents/appellees will think twice before making a similar calculation.
Comment by Richard Samp — December 15, 2005 @ 3:06 pm