Not what I intended to write about. The Court has surprised me, again.
Snope and Ocean State Tactical are both distributed for the conference of 2/21/2025.
We will near nothing about these cases before then.
This puts these cases on track for arguments in the new term. Those oral arguments could be as early as October. If the cases are heard in October, we could have an opinion by December.
We didn’t lose this one, the Court took a time out.
You might have heard that the DoJ is suing Hochul and James. This is not quite true. They are being sued in their official capacity. So the Governor, Attorney General, and head of the DMV of New York state are being sued.
What is the suit about?
New York will give a license to illegal aliens. I am not sure how that works, but they do.
The license indicates that the person is an illegal alien. As an illegal alien, they have extra rights under New York law.
In particular, the “Green Light” law requires the DMV to inform the illegal alien anytime the feds request information about them from the DMV.
Things are happening.
This is the case out of New York’s Southern District, under the Second Circuit. The Second Circuit is anti-gun and anti-“The People”. The Southern District translates to New York City.
If you can find a pro-gun or pro constitution judge in the Southern District of New York, you are doing better than most people.
The Lawfare team filed a case on Friday. The case was originally assigned to judge Paul A. Engelmayer for “part 1”. This seems to mean that he is the judge handling “emergencies”.
This is the judge that would handle the cops needing a federal warrant, right now. Or requiring a TRO to stop an ongoing situation with irreparable harm. Lady has just had the shit beat out of her and wants a TRO. The abuse TRO is a state issue, not federal, but I’m trying to explain.
As far as I can tell, they waited until they knew this particular judge was on duty and for it to be Friday night. In general, nothing happens in the courts over the weekend.
This particular judge issued a TRO around 0100 on Saturday. Go find some YouTube lawyers to explain how bad this judge did. It was bad.
To put perspective on the timing of this, the TRO was entered into the docket before the complaint was.
The Trump attorneys weren’t even on the case until Sunday. That appears to have been intentional for the plaintiffs (Bad guys)
The original judge put the case on a “fast track” that had hearings taking place later this week. The judge who is sitting on the merits of the case is having nothing of it.
She ordered the parties to meet and work something out Monday morning. They did, in part. Still not enough.
The plaintiffs waited until the last minute to file their memorandum of law (A statement of the laws they think Trump is breaking and why they believe he is breaking those laws.)
The Defendant, Trump, had their replied filed by 2200.
This stuff is moving rapidly. I expect to see movement on the case by the time you are finished your second coffee.
This is a difficult post for me.
I want the Supreme Court to hear a Second Amendment case this term. I don’t think it is going to happen.
The normal procedure is for a case to get on the docket. The Court gives the party time to file briefs. Once all the briefs are filed, the case is ready for the next step.
The next step is for the Justices to discuss the case in private. This is done in Conference.
There are Wed. and Fri. Conferences. Cases that are petitioning for cert are discussed in the Friday Conferences.
We are informed when a case will be discussed by an entry in the case docket of the form “DISTRIBUTED for Conference of 1/24/2025”
During the Conference, the Justices will make decide to deny cert in a number of the cases. They will decide to grant cert in others. And some they will need more time to discuss.
In general, we hear about the results of the Conference on the following Monday. This is when the “Order List” is released.
The Order List will consist of GVRs. These are of the form “The petition for a writ of certiorari is granted. The Judgement is vacated, and the case is remanded to the COURT for consideration in light of CASE“.
There will be Orders In Pending Cases. These are motions not related to granting cert. They are motions for stays, to file under seal, to proceed in forma pauperis (in the form of a pauper.)
Then there is the “Certiorari Denied”. This is a list of case numbers and case names. That is it. No other information is supplied.
There are other sections for Mandamus Denied, Rehearings Denied, and Attorney Discipline.
Finally, there are statements of the Justices.
These are of the form, “NAME, dissenting”, Title of case, case number, and date.
Following this is the actual dissent. This can be short or long, depending on the Justice writing it and how much they have to say about the denial of certiorari.
I’ve seen them as short as a page and some extending a half dozen or more pages.
This is where people get to panic.
If a case is not listed in the Order List, it can be for many reasons. The Justices might be planning a “Miscellaneous Order” for later in the week. We’ve seen that from time to time.
Unfortunately, the most likely reason is that the Justices decided to deny cert.
Given Thomas’ support of the Second Amendment, if they are denying cert, he will be writing a statement dissenting with the judgement.
I’m torn, I don’t want these cases to be denied cert. On the other hand, I can’t think of a reason that there is nothing posted about them, except that there is a dissenting Justice writing a statement.
Last week was a week of winning with Trump 2.0.
Maybe we’ll hear really good news later this week. I’ll keep an eye out for any news and keep you updated.
We are still in a holding pattern. At this instant, the January 27th order list has been released. Neither case is on it.
This means that neither case has been summarily denied certiorari.
They were not granted certiorari, either.
Later today, the dockets should be updated.
If they are relisted, we still have a chance of a decision in the 2024 term.
If they are not relisted, it suggests that there was a denial of cert and one or more of the justices are writing a “statement” dissenting with the denial.
Perspective. A case was conferenced on the 10th, 17th, and 24th. Today they issued the denial of cert. Thomas wrote a dissent, joined by Alito.
This is the same pattern as Snope and Ocean State Tactical.
I do not believe that certiorari has been denied.
If it is granted next week, the Petitioner’s briefs will be filed by March 12, 2025. This still gets us to oral arguments for the 2024 term.
According to my brief research, We are pushing oral arguments into May at this point. The Court doesn’t often hear cases in May.
Having said this, the Court sets their own rules. If they don’t set oral arguments soon, they will likely hear the cases in early October with an opinion out December 2025 or January 2026.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This is the section of the 14th Amendment which says that the children of former slaves and former slaves are citizens of the United States.
This needed to be done because before the slaves being freed, they were not citizens. The defeated southern states were investigating how to disenfranchise former slaves.
It was ratified on July 9, 1868.
When evaluating a modern regulation, when the Constitutions plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.
In this case, “Is the child of an illegal alien born in the United States a United States citizen?”
The plain text of the Constitution clearly covers the individual’s conduct, becoming or acting as a US Citizen.
Since the plain text covers the conduct, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of regulation.
This is fairly simple. You are a US Citizen if your mother or father is a US Citizen. You are a US Citizen if your mother or father is a lawful permanent resident when you are born.
Being whelped on US grounds does not make you a citizen.
Is this interpretation consistent with giving former slaves citizenship?
Yes. Former slaves were naturalized (I Believe). So they were citizens.
Their children were born to citizens or lawful permanent residents.
We know what it meant in 1898. In March of that year, the Supreme Court issued their opinion in —United States V. Wong Kim Ark, 169 U.S. 649 (1898). This is barely 30 years from the ratification of the Amendment.
Wong Kim Ark was the child of Chinese parents. Those parents were NOT naturalized and were subjects of the Emperor of China.
When Wong Kim was 17 years old, he took a trip to China. He returned with no issues. He claimed to be a US Citizen.
In 1894, four years later, he took another trip to China. This time, when he returned, he was not allowed to disembark. Instead, he was detained.
The District Court for the Northern District of California found that Wong Kim Ark was a US citizen by virtue of his birth and had him released. The government appealed to the Supreme Court.
This is preciously the question the new EO brings forth.
That’s old time speak for “plain text” and “historical tradition of regulation”.
So a child must be born not only within the country, but within the “ligeance” of the country. If they are born of an occupying entity, then they are citizens of the occupying entity, not the country within which they are born.
When everything is said, the Supreme Court in 1898 found that if you were born of parents that were here legally, you were an American citizen.
Not really, the issues are that of an invading force, or people that are here illegally. Do they have the same birth right as a child born of people here legally?
There is a strong argument to be made that illegal aliens do not gift their whelp with American citizenship merely by pushing them out while on US soil.
It is clear that if they were members of an invading army, their children would not be American citizens.
Mr. Wong Kim Ark was a person who claimed to be a US Citizen by birth. When the state refused him entrance to the United States, he was able to file a case arguing that he was a citizen and should be granted internee.
The state argued against him.
This means that Wong Kim had standing. The case was about him.
Now consider the current situation. Jose sneaks across the border with his wife Maria. Maria got knocked up by somebody, either north or south of the border, it doesn’t matter.
Maria and Jose show up at the hospital emergency room, where they are given “free” health care because they have no intention of paying for it.
Maria whelps Jose Jr.
Jose and Maria are handed a birth certificate for Junior. They are told they are the proud parents of an American Citizen.
You’re in the next bed and you hear that another illegal has their anchor baby.
You file suit claiming that the Fourteenth Amendment doesn’t grant citizenship to foreign invaders.
The case is dismissed. You have no standing.
This is correct.
Who has standing?
The child, the parents, and the state.
If the state isn’t challenging the granting of citizenship and the parents are not, and the child isn’t, then there is no suit.
The EO says that if you are not here legally, whelping a child here doesn’t grant that child citizenship.
If Jose wants Junior to be a citizen, he needs to file suit. The state can now argue against birthright for invaders.
If Jose loses, he better stop. If he appeals, then the circuit court will hear the case. And the state will again argue invaders don’t get to make citizens.
If the loser of that case appeals again, it will be before the Supreme Court.
At which point we will have our second opinion on birthright citizenship being granted by the 14th. It might not turn out the way that the left thinks it should.
As of 1100 Tuesday, we have heard that cert was NOT denied in Snope nor in Ocean State Tactical.
This means that when the dockets are updated later today, we are likely to see them Distributed for Conference of 1/24/2025.
This is as expected. NEXT Monday is when I become concerned, if the cases are relisted.
First, Mark Smith is a lawyer. I am not. Much of the “inside baseball” I’ve learned from listening to Mark and others like him on YouTube.
His analysis of many cases is spot on. Many times his analysis guides mine. I enjoy listening to him. To put it differently, I enjoy him attempting to “make [me] the smartest person in the room.”
One of his early videos was describing how the Roberts court handles grants of cert.
As he explains it, once a case gets to the point where it will be considered for cert, it will be distributed for conference. This means that it will be discussed by the Justices at a particular conference. Those conferences normally happen on Friday.
The court will then issue their “Orders” on the following Monday. Well, that is the day it is normally published.
The orders list consists of mostly of one or two lines, case such and such petition for something is denied. There are long lists of denied, a shorter list of granted.
In addition to the short statements from the Court as a whole, there will sometimes be statements by the Justices regarding denial of cert in a case. These can be considered dissenting opinions.
If a case has been conferenced, there are three options for the case going forward. The case can be denied cert. The case can be granted cert. The case can be relisted.
If a case is relisted. Which means to be distributed for conference the next week. That will not be in the orders. It will show up in the case docket later in the day.
If a case is not listed in the orders, after it has been conferenced, it can mean one of two things (IANAL), it can mean that the case is relisted, and we’ll read it in the docket later in the day, OR it means that cert was granted but one or more Justices needs time to write a statement.
As I said, the orders are normally given on the Monday following the conference.
Occasionally, there will be a misc. orders issued on the Friday of the conference. These are grants of cert.
The Supreme Court has a term that runs from the first of October to the end of June the next year.
In general, the Court will issue opinions in the same term as they hear oral arguments on the case.
Oral arguments must take place before the close of the term, while leaving the Justices enough time to write their opinion. Consider that the Heller opinion was nearly 157 pages in length, 60 lines per page, 10 words per line.
That makes the Heller opinion around 90,000 words in length. It was written by multiple justices, but still, that is two Novels.
It is 90 long Chris articles. Ally, our writer, will write 3700 words a day when creating the first draft. She will spend a month writing a 50,000 plus word book. Then she starts editing.
This means that if they expect it to be a long opinion, they need to have 45 or more days to write it. That 45 is an S.W.A.G by me.
This puts a fairly hard deadline for oral arguments.
From the time a case is granted certiorari, the clock is running. The petitioners have 45 days to file their brief. The respondents have 30 days to file their brief. The Petitioners have 15 days to file their reply. A total of 90 days.
To give the justices 45 days to ponder and write, oral arguments must happen on or before May 16, 2025.
Putting a more concrete number on this, it took 118 days from oral arguments in McDonald to the date the Court issued their opinion.
This implies my guess of 45 days might be a bit short. Bruen was heard in November and the opinion was issued on June 23rd.
Regardless, if we are going to have an opinion this term, we are running out of time. To hit the May 16th deadline, the Court must grant cert before February 15th.
120 days was this last Thursday, January 16th.
Mark explained to us that we wanted three cases conferenced on the 10th of January. This happened. Good for Mark.
He explained that we would like to see cert granted January 13th, but we should expect the cases to be relisted.
He posted a video on the 10th or 11th telling us that a miscellaneous order had granted cert in three cases on the 10th. This was bad news for the Second Amendment. These cases were being given a jump start on getting things done before it was too late for this term.
On Monday afternoon, two cases were relisted. The case that was in an interlocutory state was denied cert. There was another Second Amendment case that dealing with taxes on firearms that was also denied cert.
This was precisely what Mark had predicted.
On the 17th, our two Second Amendment cases were conferenced for the second time. In the evening, a miscellaneous order granting cert in four cases was issued.
Mark posted another video telling us this was bad news for our Second Amendment cases.
I’m sticking with Mark V1. So far, the situation is progressing as he predicted. This matches my predictions (IANAL).
I refuse to panic or even worry over the weekend. Monday morning, I will read the orders. I expect to see nothing regarding Snope and Ocean State Tactical. Later in the evening, I will check the docket for those two cases, and I expect to find them relisted.
This is on track. We are doing well.
January 27th is the day we need to be paying attention to. That will be the day orders are issued for the conference held on the 24th. If the cases are relisted for a fourth time, I’ll be nervous.
Just remember, it isn’t over until the fat lady sings.
Ally came to me the other day upset about the TikTok case. One of her issues was that the AP was reporting that they couldn’t report more because it was “sealed”.
I found this to be unusual and went to the source to find out what is going on. What I found was somewhat different.
Ally pointed out that what I sent her, the docket, wasn’t something she understood.
This is a non lawyer’s take on reading dockets.
The docket is a record of a case. It contains the identifying information about the case as well as providing information on what court, panel, or judges will be hearing the case. It is relatively brief.
The biggest part is the “Proceedings and Orders”.
The header identifies the case. In addition, it helps track the case back in history as it moved through different courts.
The title is the parties to the suit. The short title would be TikTok v. Garland. The date the case was docketed with the Supreme Court was December 18, 2024. The case comes from the D.C. Circuit Court. In the circuit court it had a case number of 24-1113.
The first entry tells an interesting story. The first is that this case was submitted to the emergency docket, sometimes called the shadow docket.
When a case is placed on the emergency docket, it is assigned to one justice. Each justice is assigned a set of lower courts that they “supervise.” In this case, the D.C. Circuit Court is supervised by Chief Justice John Roberts.
The party petitioners are TikTok and ByteDance. They have “filed a motion” which is legal speak for “asked for something.” What they have asked for is an injunction against the enforcement of <q>Pub. L. No. 118-50, div. H (2024)</q>. This is the “Protecting Americans from Foreign Adversary Controlled Applications.”
In other words, they want the courts to stop the banning of TikTok.
To pull the information about motion, I read the “Main Document”. On the website, this is a link to the PDF of the document.
Because this case was put on the Emergency Docket, they are not asking the court to decide on the merits of the case, instead they are asking for an injunction until the Supreme Court has made their final decision regarding the ban.
Entry two says that they have also requested that the court hear the case, on its merits.
The next three entries are briefs by different groups of people called “Friends of the Court”, or “amicus curiae”. These are not parties of the case but instead are people who want to stick their two-cents in.
These briefs must be filed by a lawyer who is a member of the Supreme Court bar. In some situations, the people filing amicus briefs must get permission first.
Simply put, it is a written argument. The person or group that files the brief feels that they have something important to say that might change the Court’s mind.
These briefs are all going to be arguing that the Supreme Court do something.
The respondents will often not argue at this point. To argue that the Court not hear the case is to make the case more important. Since the Court prefers to take cases that are important in the broad scheme of things, arguing that the Court not hear a case is arguing for the case to be heard.
On December 18th, the application, as 24A587 on the emergency docket, was referred to the Court.
This is the Court’s normal Wednesday conference.
The Justice discuss the cases which have been referred to them and decide as a group what they are going to do.
There is a deadline of January 19th for them to issue an order or opinion.
The petition is granted on the 18th. This means that the case went from not existing within the Supreme Court’s system to being granted cert in 2 days.
This is what “Emergency Docket” means. It has to happen now.
Now this particular case is on an expedited track. The Justices have given a word limit on the briefs. We will see later that there are “Certificate of Word Count” attached to many filings, stating they are within the limits set by the Court.
The time is also shortened. All the primary briefs are to be filed by December 27th. This is only 9 days after the granting of cert.
The court also says when oral arguments are happening.
The court also consolidated two cases. This is why we went from 24A587 to 24-656. The two original dockets were 24A587 and 24A656.
While the court said that oral arguments were on the 10th of January in their order. The official order is “SET FOR ARGUMENT at 10 a.m., Friday, January 10, 2025.”
We start to see the Amicus briefs start to arrive. They have until 1700 the 27th to get their briefs in.
We can tell that the people interested in this case have already prepared their briefs and are submitting them within a few days.
Our first entry is an order from the clerk of the court. They are telling the filer that they didn’t do it right. The submitted their brief with a word count, but the proof of service was incomplete.
The clerk will not accept the brief until the deficiencies are resolved.
Outside the amici briefs, we have a “request”, which is Supreme Court speak for “order”, to the circuit court for a complete record. There is an “appendix” which is the compendium of all the briefs filed in the lower court(s?).
While the cases are combined, both petitioners request to argue separately. It will happen on the same day, one after another.
When reading these entries, the notation “(Distributed)” means that the filing has been given to the justices.
Many briefs are filed. The justices met and on the 31st granted the petitioners motion to argue separately.
All the replies were submitted on time.
One of the amici managed to mess things up so badly that they didn’t get their homework in on time. They asked the Court for an exception, the Court said, “no”.
This is the record of the cases before the D.C. Circuit Court. The records came in to parts. One part is open to the public, they other is sealed.
Sealed information can include things like financial details, personal identifying information (think SSN), or the identity of undercover or human sources. It can also include methods that the state doesn’t want public.
The Supreme Court can decide to unseal those records, but it isn’t going to happen. There is no need.
The quick way to find out what happened on the 10th is to read the transcript.
If you want to spend 2 hours listening, you can listen to the oral arguments
On the 17th, the Court has its next conference. They will discuss the cases referred to them, the cases distributed to them seeking cert, and cases where oral arguments have been heard.
They will come to a conclusion.
Once they decide, they need to write the opinion. If any justices are dissenting, they have to write their dissent.
Justices can write concurrences as well. This is when the justice agree with the opinion, but not the reasoning of the majority opinion.
Once all the opinions are finished, the opinion of the court will be released.
If the justices know that it will take longer to write the opinions than they have, they can issue an injunction. The injunction will put everything on pause until the Court can issue their opinion.
The path from here is working backwards. Given the circuit court and the docket number for that court, you can look up the docket on the Circuit Court’s website.
Of course, this doesn’t always work. To answer this, we use Court Listener to look up the case at the circuit court. The link I’ve given takes you to this case.
Within the circuit court docket, we find the same type of docket. Part of what we will find is a reference to the district court case.
All the oral arguments at the circuit level are available on the web. It can be difficult to find. Court Listener is your friend there as well.
Go have some fun reading documents.
Next Monday we will see Snope and Ocean State Tactical granted cert or relisted.
Right now, there are 100s of lawyers writing briefs for these cases. I expect to see over a thousand pages submitted to the Supreme Court.
Bruen was distributed for Conference on 4/1/2021, 4/16/2021, and 4/23/2021. Cert was granted 4/26/2021.
The parties requested, and were granted, two extensions to file briefs on the merits.
From the time of being granted certiorari, the petitioner has 45 days to file their initial brief. The opposing party has 30 days from then to respond. Extensions may be granted at the discretion of the Court.
From there, the petitioner can file a reply brief. The opposing party can file a reply brief.
About 100 days total, if everybody stays on schedule.
The case was scheduled for oral arguments on 8/15/2021. The date for arguments was set for November 3rd, 2021.
The case was argued on 11/3/2021.
The court published their opinion on 6/23/2022 with the judgement being issued on 7/25/2022.
Because the case was conferenced in April, the case wasn’t heard in the 2021 term. We are teed up to have the opinion issue for these cases in June 2025.