Arguing Importance When No Circuit Split Is Present

What happens when your petition for writ of certiorari does not contain an arguable claim of lower court conflict?  The absence of a split is challenging for any Supreme Court practitioner, given that the primary reason the Court grants cert is to resolve lower court conflicts.  While some petitioners attempt to create a conflict, the better practice is to emphasize other certworthy factors, including the importance of the question presented. 

The petition in Encarnacion, et al, v. Astrue, No. 09-631, provides an excellent example of this strategy.  The petition can be viewed here, the brief in opposition here, and the reply brief here.  [Note: the Encarnacion petition and reply brief were printed at Cockle] 

At issue in Encarnacion is whether the Social Security Commissioner’s policy for determining child disability complies with Congressional instructions to consider “throughout the disability determination process” the “combined effect of all of the individual’s impairments.”  42 U.S.C. § 1382c(a)(3)(G).  The petition argues that the Commissioner’s policy—failing to give weight to all of a child’s impairments when deciding disability status—flies in the face of the Court’s previous decision in Sullivan v. Zebley, 493 U.S. 521 (1990), and in contravention of the clear statutory language.  The petition, however, does not contend that the lower courts are divided on the issue.

In fact, the petition straightforwardly admits the absence of a circuit conflict. Petition, at 22 (“To be sure, in this class action, there is no conflict in the circuits, nor is one likely to develop”).  This is a unique strategy.  Recognizing that lower court conflicts drive the Court’s docket, Supreme Court practitioners usually attempt to manufacture a conflict through creative characterization and generalization, in an effort to garner the Court’s attention. I spoke with one of the attorneys involved and he said that they deliberately conceded the absence of a lower court conflict, because one did not arguably exist. Petitioners instead decided to emphasize the importance of the question. 

As the leading Supreme Court authority states, “[t]he importance of the issues involved in the case as to which review is sought is of major significance in determining whether the writ of certiorari will issue.” Gressman, E. et al., Supreme Court Practice, at 262 (9th ed. 2007).  There are many ways to convey the importance of an issue (i.e., the type of issue, whether the Court has previously addressed the issue, and the number of people affected by the issue).  But since no single consideration by itself is likely to convince the Court, counsel should “advance all possible reasons tending to demonstrate the importance of the issues….”  Supreme Court Practice, at 263.   The Encarnacion petition accomplishes this goal by advancing several reasons why the Court should grant cert despite no conflict.

The petitioners in Encarnacion first work the importance of the lower court’s opinion into the merits of the case, contending that the lower court decision directly conflicts with relevant Supreme Court precedent (i.e., Sullivan v. Zebley).  Pet. at 16. Next, petitioners argue, quite persuasively, that Supplemental Security Income (“SSI”) is a “critical resource” for families whose children suffer from serious disabilities and that if the lower court decision stands, children—who are not severely impaired in one area of functioning, but substantially impaired in many areas of functioning—will not be considered disabled and thus, not receive SSI.  Petitioners also argue a key point needed for any cert petition: why Court review is needed now. Because applicants for child-disability benefits generally cannot afford legal representation, if review is not granted in this case, petitioners maintain that the issue is likely to evade the Court’s review.  Pet. at 22. And the petition is punctuated with this final sentence:  “There is no reason to allow the decision below to stand, and Zebley to be dishonored, while thousands of disabled children are deprived of the benefits to which they are entitled.”  Pet. at 23. 

Rather than rehashing the same importance grounds raised in the petition, the reply brief brings forth further grounds for review.  Highlighting facts from individual petitioners’ cases, the reply brief contends that those “amply demonstrate the irrational impact of the challenged policy…”  Reply, at 10. Petitioners support this assertion by noting additional examples provided by Amici Curiae briefs filed in support of the petition.  The cert-stage briefing ends with counsel’s contention that if the petition is not granted “the issue may evade review indefinitely, and potentially thousands of poor children will be deprived of the complete, holistic assessment that Congress intended them to have.” 

To be sure, the task of arguing the importance of a question is less arduous when the topic is as compelling as child disability.  But not every petition (even those with compelling subject matter) argues importance as comprehensively as the Encarnacion petition.  Nor do petitions routinely concede the absence of a circuit conflict. The Encarnacion petition thus stands apart from the conventional approach and is a fine model for those presenting important questions, but no splits among the lower courts.    

The Encarnacion petition is set for Conference on April 2, 2010. 

Quon Bottom Side Brief Filed

The Respondents’ brief in City of Ontario v. Quon, No. 08-1332, was filed yesterday.  Quon involves whether the Fourth Amendment permits a city to search government-issued pagers. 

 The Supreme Court will conduct oral arguments in Quon on April 19th.

Toobin Piece on Justice Stevens

Yesterday, Jeffrey Toobin had a detailed piece on Justice John Paul Stevens in the New Yorker.  The article chronicles both the life and judicial philosophy of the Justice.  The profile is well worth the read.

A Tour of Talent: My Weekend Trip to Harvard University

Ann Marie and Shon R Hopwood at Memorial Church, Harvard University

My wife Annie and I had a wonderful trip to Harvard University.  We stayed at the famous Preacher’s Suite in Lowell House, and Sandy Alexander of WilmerHale was a gracious host.  The following is a recap of our trip.

We toured the Cambridge campus on Saturday.  I gave a short speech to a group of Harvard faculty and alumni at Memorial Church on Sunday morning. That evening the CBS Early Show taped Annie and me meeting Seth Waxman and Noah Levine of WilmerHale at a local Cambridge restaurant.  We had a quick dinner before shuffling back to Lowell House for a Q&A with Harvard undergrads. (Although once some of the law school students heard news of Seth’s appearance, a few of them snuck in as well.) 

First-year Harvard law school student, Sandra Ullman (who was amazingly smart and thoughtful), provided Annie and me with a tour of Harvard law school on Monday morning.  I was able to find a very old copy of Blackstone’s treatise, but unfortunately I could only view it behind glass.  We also observed a criminal law class from the back row.  The discussion was centered on R v Dudley and Stevens, (1884), the English case concerning a shipwreck, a murder and cannibalism on the high seas.  There the Court ultimately held that necessity is not a defense to murder. I enjoyed listening to students formulate answers to questions on necessity and was surprised with their ability to argue a position notwithstanding the unusual factual scenario.  We later had lunch with several of those students. The trip ended with a visit to the WilmerHale office in downtown Boston.    

I left Cambridge with several impressions.  The level of talent there is truly remarkable.  Everyone we had the pleasure of meeting was gifted in a number of areas.  Equally impressive was the level of collegiality there, given the diverse interests.  They made us feel like part of the family, especially at Lowell House.

For me, the highlight of the weekend was finally meeting my friends Noah and Seth in person.  Those two have played a profound role in my life. 

Seth Waxman, Shon R Hopwood, Noah Levine

Weekend Trip to Harvard University

My wife Ann Marie and I are traveling to Boston tomorrow for a three-day trip to Harvard University.  I have been asked to speak to a group of Harvard faculty and undergrad students, and on Monday, I will be sitting in on a criminal law school class.

The trip is exciting for a number of reasons.  For those of you who know my story, I worked with attorneys Seth Waxman and Noah Levine, both of WilmerHale, on the Fellers v. United States case.  Since Fellers ended, we have kept in contact and developed a friendship through a steady stream of telephone, mail, and email correspondence.  On Sunday, I will finally meet Seth and Noah face-to-face. And The Early Show on CBS will also be at Harvard taping part of my trip! 

Sandy Alexander of WilmerHale in Boston is sponsoring the trip.  I will post the details (and possibly some pictures) upon my return to Cockle on Wednesday

Court News for the First Week of March

It was another hectic week at the Court, starting with an order in Kiyemba v. Obama, No 08-1234, where the Court remanded “in light of new developments.”  One of those developments was the fact that all seven petitioners were offered settlements in other countries.  

On Monday, the Court granted certiorari in Michigan v. Bryant, No. 09-150, a case calling for further development on what constitutes a “testimonial” statement under the Confrontation Clause.  The Court addressed the reach of testimonial statements last Term in Melendez-Diaz v. Massachusetts, No. 07-591, and upheld that decision in a one-page order this January in Briscoe v. Virginia, No. 07-11191. 

Tuesday saw the Court hand down three decisions.  In Reed Elsevier v. Muchnick No. 08-103, the Court held that the failure of a copyright holder to possess registration does not prevent federal court subject matter jurisdiction to decide infringement claims over works that are not registered.  The Court, in Johnson v. United States, No. 08-6925, ruled that a “violent felony” under the Armed Career Criminal Act means a crime requiring the use of physical force.  In Mac’s Shell Service, Inc. v. Shell Oil Products Company; Shell Oil Products Company v. Mac’s Shell Service, Nos. 08-240; 08-372, the Court limited the rights of franchise holders to file an action after a franchise agreement’s termination. 

This week oral arguments were conducted in two closely watched cases of the Term.  The Justices heard argument on Monday in Skilling v. United States, No. 08-1394.  Skilling presents the Court with two issues: 1) what kind of trial court measures should be taken where negative pre-trial publicity pollutes the jury pool; and 2) whether the honest services wire fraud statute is unconstitutional.   SCOTUS Blog provided excellent coverage of the Skilling argument. 

What some have labeled the biggest case of the Term was argued on Tuesday.  The Court heard argument on whether the Second Amendment right to bear arms applies to the states in McDonald et al., v. Chicago, et al., No. 08-1521. (Note: both the petition and petitioner’s merits brief were printed at Cockle).   The mainstream media covered McDonald heavily, including pieces in the Washington Post, New York Times, L.A. Times, Wall Street Journal, and NPR.  Lyle Denniston of SCOTUS Blog also had an illuminating post on the McDonald argument.

The Court conferences today to decide the fate of numerous cert petitions.  The Court’s orders will most likely be released Monday of next week.