Good morning, everyone! Welcome to our first live blog of OT2017. We are expecting one or more opinions in argued cases in approximately ten minutes.
If you are thinking that it seems a little early for an opinion in an argued case, you are correct. Last year we got the first opinion on November 29.
And the year before that it was December 1.
With a .000% margin of error
@Beaufort: I think that in theory the chances are low, but remember that the Court did move the case up for an earlier argument, and it stayed the order requiring the state to draw new maps, so the justices could want to move on the case quickly.
@TomH: That is definitely a popular theory here in the press room.
So Amy thinks the odds are slightly higher than 0.0%. I'll just say that, given how important Gill is, and how likely it is to engender dissent, the odds of it coming out today are super low. Opinions that come out this quickly are almost certainly unanimous -- dissents slow the process down considerably.
@JoshSegal: It would be released as an order.
I'm going to bet a shiny nickel on Hamer -- seems like the case where the Court would pick a rule, no one would bother dissenting, and Ginsburg would crank out an opinion quickly as the Court's resident civil proceduralist.
Another possibility for an opinion today is Hamer v. Neighborhood Services, which was argued on October 10. It has the feel of a Ginsburg opinion -- the question presented is whether Federal Rule of Appellate Procedure 4(a)(5)(C) can deprive a court of appeals of jurisdiction over an appeal that is statutorily timely or whether it is instead is a nonjurisdictional claim-processing rule because it is not derived from a statute -- and she likes to try to get her first opinion out early.
We'll know very soon. Going to wait for opinions.
Great minds ... something something.
It seems like it would be hard to start an opinion with a 4-4 vote at conference. The style of an opinion usually varies dramatically according to whether it's a majority or dissent. And it's not even clear how you'd assign it -- a Justice would essentially have to write it in an entrepreneurial effort to drum up a vote from the other side. Cases that come out this early usually have no dissents, and re-argument implies dissent.
We have our first opinion, and it is indeed Hamer v. Neighborhood Services.
Should have bet more than a nickel...
And maybe found a counter-party
It is unanimous. The Court reiterates that a time limit prescribed only in a court-made rule is not jurisdictional, which would require the court to dismiss the case. It is instead a mandatory claim-processing rule that can be waived if the other side does not waive it.
Because the Seventh Circuit in this case held that a time limit specified in a rule -- Federal Rule of Appellate Procedure 4(a)(5)(c), which limits extensions of time to file a notice of appeal -- is jurisdictional, the decision below, which dismissed the appeal, is vacated.
The opinion is short, just ten pages.
The upshot of this case is that the Supreme Court vacates the decision below dismissing the appeal and sends it back to the lower court, but it does so with a couple of caveats.
First, the Court says, it is not deciding whether the failure of Neighborhood Services to object to the "overlong time extension, by itself, effected a forfeiture."
For the uninitiated, what's at stake in whether a rule is "jurisdictional" is typically whether there is ANY way to get around it if things go sideways. A non-jurisdictional rule can sometimes be avoided because the other side doesn't argue for it, because of fairness concerns, or the like. A jurisdictional rule affects the power of the court to hear the case, which means that if you break it, you are totally screwed -- end of story.
It is also not deciding whether Neighborhood Services could "gain review of the District Court's time extension only by filing their own appeal notice," or whether "equitable considerations may occasion an exception to Rule 4(a)(5)(C)'s time constraint."
@stan: Sorry -- I am rusty after the summer break, but will try to remember to get the box count next time!
A useful reminder that sometimes the work of the Court is boring, procedural nitty gritty on which everybody agrees. There's something comforting in that.
The Salmon Chase Cup. Notorious RBG has been drinking tea out of it for several of the last years.
That's a wrap, I guess. I'll hang around and answer questions if you got 'em, or you can shoot them at me on twitter (@LemonfulLife).
That's all I have for today. Because the Court is observing Veterans Day on Friday, the justices are holding their private conference on Thursday this week.
That means we are likely to get orders on Monday; Monday is also marked on the calendar as a "non-argument" session, which means the justices (or at least some of them) will take the bench and in all likelihood admit new lawyers to the Supreme Court's bar. So we could in theory get another opinion next week, but I wouldn't count on it.
For what it's worth, Monday is also the day that the court's new electronic filing system is supposed to go into effect.
As they say in Oceans 11, I'll see you when I see you -- whether that's next week or after Thanksgiving. Take care, all!
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